The Poisoned Fruit Of The Gürtel Case

Madrid's judges did a big favour to those accused in the Gürtel corruption case last week. The decision to disallow as evidence all of the recordings made of conversations between suspects and their lawyers has even led to speculation about whether the case will proceed at all. The three judge court split 2:1 on the issue after failing to reach any sort of consensus. There was even a suspicion of illegal surveillance surrounding their own deliberations, at one point the police were ordered to check for eavesdropping devices in the court building after press reports appeared describing the disagreements between the judges.

On the face of it, the prosecution case shouldn't be in any danger as there is significant evidence that does not depend at all on the recordings that were made. This is the position being adopted by prosecutors in the aftermath of last week's decision. The problem is that the defence lawyers, who have already worked hard to slow down the preparation of the case, will now try to apply the poisonous fruit doctrine to much of the prosecution case. This doctrine consists of challenging any part of the accusation that can be linked in any way to the evidence that has been declared illegal. Whether they succeed or not, the longer they can delay prosecution the closer they get get to the dream objective of reaching the legal time limits on prosecution for at least some of the offences. Whilst of course allowing more time for the profits to be well hidden. We will see whether the investigating magistrate in Madrid now manages to untangle the rest of the case in time to meet his latest deadline for lifting the secrecy surrounding much of the prosecution case. Next Monday should be the big day.

It is of course important that protection exists for defendants conversations with their lawyers, otherwise the whole idea that prosecutors have to prove their case independently of the defence crumbles. On the other hand, this case raised the issue of what happens when the lawyers are potentially part of the group that can be accused? One of the lawyers concerned was visiting people in prison who he was not even representing. The Madrid decision soon started a trend, within hours the lawyer representing Jaume Matas - whose fate we will know more about tomorrow - was calling for recordings involving his client to be disregarded, even though Matas is not yet formally charged.

The PP has been seeking, sometimes openly and sometimes not, any kind of legal defect which will halt the Gürtel case. This worked for them on a previous occasion in the 1990's when they escaped serious accusations of illegal financing thanks to legal technicalities. They are helped in this instance by the fact that it was Baltasar Garzón who authorised the surveillance. In the current judicial climate you could get a legal case accepted against Garzón if it rains during your Easter holiday. It takes someone who is truly cynical, someone like Esperanza Aguirre, to suggest that the PP won't be satisfied until the Gürtel case runs its full course. Aguirre continues to receive the loyal votes of the three members of her parliamentary group in Madrid who face serious corruption accusations. Of course they are not formally part of the PP's group, and they don't participate in party activities. But they loyally turn up week after week just in time to vote....for the PP.