The Constitutional Court protects the alleged figurehead of Zaplana in the ‘Erial case’ because his defense was made difficult | Spain | The USA Print

The Constitutional Court has granted protection to Francisco Grau, a close collaborator of the ex-minister of the PP Eduardo Zaplana and who is considered the architect of the financial engineering with which he operated the plot of the wasteland case, relating to the alleged obtaining of commissions and money laundering from the Wind Power Plan of the Valencian Community. The sentence handed down by the First Chamber of the court considers that the defense lawyers in this case were deprived of the necessary information to appeal the provisional detention that was agreed against Grau. The same measure was also taken with respect to Zaplana, who, however, did not challenge it. The guarantee court considers that the secrecy of the summary was not a sufficient reason to deny the defenders access to the most relevant data of the investigative proceedings.

The ruling annuls, therefore, the orders denying the information requested, and considers that in Grau’s case his right to personal liberty and his right to defense were violated by not having given him access to the contents of the procedure necessary to appeal against the agreed provisional detention. The Constitutional Court already has some previous resolutions in this line, but it has wanted this challenge to serve to complement and consolidate it. The judgment on Grau, for which magistrate Juan Carlos Campo has been a rapporteur, emphasizes in this sense that it is necessary to “advance in this progressive definition of the right of access to judicial proceedings”.

In it wasteland case 15 people are accused, among them Eduardo Zaplana and his presumed adviser and figurehead, who should possibly be tried throughout this year. The criminal procedure dates back to 2018, when the Investigating Court number 8 of Valencia decreed the provisional detention of Grau, communicated and without bail. The court did not inform the defense of the main evidence on which his decision was based, which led to the presentation over several months of a chain of appeals that were rejected, without Grau being released. His defense raised the difficulty of arguing in depth the request that his pretrial detention situation be annulled without having access to the information on which the continuation of the measure was based, although the successive resolutions did allude to the existence of a alleged flight risk. The provisional release for this case came in February 2019.

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The defense presented the appeal for amparo in order to obtain a sentence that questioned the refusal of the information requested to oppose precisely the permanence of the measure of provisional detention. The prosecutor adhered to this claim. And now the sentence has recognized that Grau’s fundamental rights were violated.

The ruling reasons that “the purpose of the legally recognized access and the modifiability of provisional detention, in line with the evolution of the procedural circumstances and the passage of time, determine that the person deprived of liberty can request the delivery of the materials in which support the measure at any time during the procedure.” And it emphasizes that the legitimate purpose of this access to basic data of the process is justified “in order to have verified information that allows it to evaluate the factual-legal coverage of provisional detention and, if it deems appropriate, question its legality” .

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The ruling adds that this right of access to relevant information “includes only the essential elements to challenge the legality of provisional detention and not all the actions, but in this scope it cannot be subject to restriction by virtue of the declaration of secrecy of the performances”.

The ruling states, in short, that the amparo proceeds when it is verified that in this case “the legal guarantee of access to the essential elements of the proceedings has not been respected to challenge the provisional detention essential for a defense against the precautionary deprivation of liberty ”. It is, therefore, a resolution whose main effect is that its doctrine must be taken into account and applied by the courts and tribunals that are faced with similar cases.

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