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The judged and secrecy: a necessary reform

| News | Litigation

Abril Gascón analyzes the situation of the investigatees when the case has been declared secret, for the newspaper Expansión

The recent increase in the number of people investigated in one of the separate parts within the process known as the "Villarejo Case" that is being instructed by the Central Court of Instruction nº6 of Madrid, offers us the opportunity to analyse the particular status of the person investigated - previously accused - in a case in which the secrecy of the proceedings has been decreed.

Specifically, we will refer to the different news published in the press regarding the summons of at least nine BBVA executives by Judge Manuel García Castellón to declare that they will be judged in the next few days. The facts attributed to them relate to the alleged espionage of different figures of the State that the bank commissioned Cenyt, the company of former commissioner José Villarejo.

The relationship between BBVA and Cenyt dates back to 2004, when Sacyr intended to take control of the bank and, as a result of the telephone tapping which was carried out, more than 15,000 calls to members of the government, businessmen, institutions and journalists were intercepted.

Little more is known about the facts in respect of which the persons under investigation will be questioned insofar as, since January, the case has been held in secret. This means that the Order which declared that the proceedings remained secret for the accused will contain only a brief statement of the facts imputed to them and the reasons justifying this exceptional measure so that they can be, in the event of a discrepancy, fought by the defence.

The procedural figure of secrecy in investigation is a traditional institution in our criminal process, which, like many others, was reinterpreted and updated after the Constitution of 1978. It is article 302 of the Criminal Procedure Code that regulates it in its entirety, limiting its application to cases involving public crimes - although it has also been admitted later for semi-public crimes - and demanding that it be adopted by means of a reasoned resolution, an injunction, with the aim of protecting a person and/or "preventing a situation" that could seriously compromise the outcome of the investigation.

Secrecy must be used with caution and stealth, and the judge may not transgress any temporal or material requirement for its adoption since it must be applied in a restrictive manner, after the corresponding judgement of weighting between the different rights and interests at stake. In this regard, our Constitutional Court has recently pronounced in the Sentence of June 17, 2019 in which it addresses the impact of the declaration of secrecy of the actions on the right of defense of the investigated in its aspect to be informed which means, not only the "right to obtain precise information on the facts that make up the accusation, art. 118.1.a) LECrim, but the right to examine the proceedings sufficiently in advance and, in any case, before the investigated party is taken into account, in accordance with Directive 2012/13/EU (...)." On June 24, the Constitutional Court indicated that the secrecy of the judicial proceedings could not prevent the investigated party from knowing their content in order to challenge their deprivation of liberty. In this way, we observe how a tension arises between the right of defense that assists the investigated and the mechanisms available to the Instructor to ensure the success of the investigation that, incidentally, are temporarily limited to a period of one month, a period that, paradoxically and according to the precept cited, would not allow any extension.

Having said that, we must now ask ourselves what the situation is of the person under investigation who must testify to certain facts - of which, in any case, he must be informed - but who, having declared the cause secret, will not know what investigative measures have been carried out, nor will his result, in short, ignore the burden of proof that exists against him.

It is frequent that, faced with this impossibility of knowing the signs of criminality that exist against him, his advisors choose to deploy their defense strategy once the secret is raised, maintaining a vigilant attitude, not passive, waiting for it to be left without effect, which is why normally the investigated ends up taking advantage of the right not to testify or to answer only the questions of his defense, trying to set aside all those issues that, by ignorance, could harm him.

In conclusion, the declaration of secrecy of the proceedings must be adopted in an exceptional manner, always subject to the principle of proportionality and not losing sight of the effect it has on the right of defence of any investigated person.

You could read the full article in Expansión.

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