Could the entire case against Cristóbal Montoro be dismissed?

BarcelonaThe Montoro case is one of the most notorious scandals of recent years because it involves alleged corruption at the heart of the State, in the Ministry of Finance, and because the modus operandi It represents a torpedo in the waterline of the democratic system: the former PP minister allegedly used his influence within Mariano Rajoy's government to benefit specific economic sectors that, in turn, paid a lobby, Equipo Económico, founded by himself. However, despite the suspicions of Mossos d'Esquadra investigators that Montoro profited from this revenue through front men and shell companies, is it possible that the case could come to nothing?

Leading criminal lawyers consulted by ARA warn that there are two points in the investigation that the defense, both for Montoro and for Equipo Económico, could seize upon to demolish it like a house of cards; even if the Mossos' thesis is true and this trafficking of laws really did occur. They point to two procedural elements: the duration of the secrecy of the summary and the fact that this is a separate case from another parent case in the hands of the same court, the second investigating court in Tarragona.

The secret

The Mossos d'Esquadra were investigating a crime against land use planning when, during a search of the Messer Ibérica company, they found an email between two company executives in which they stated that the most "direct" way to obtain a tax exemption was to pay the firm connected to Montoro, Equipo Económico. From there, the investigating judge, Rubén Rus, decided to open a separate case but placed it under secrecy and extended this status for seven years, from when he accepted the case in 2018 until Montoro's recent indictment this past July.

"It's extremely serious," says lawyer Xavier Melero explicitly, arguing that an investigation has been ongoing for seven years without those affected being able to intervene. Thus, he predicts that this is where the defense will attack, since "evidence has been accumulated without them being able to provide theirs." "The evidence has not been able to be contradicted," he points out. Criminal lawyer Marc Molins shares a similar opinion, believing that the seven years of secrecy could ultimately lead to the nullity of the case. He clarifies that the secrecy of the summary is legally valid if the appearance of the parties could "hinder" the investigation, but adds that it must be duly justified. He cites the jurisprudence of the Constitutional Court, which explicitly states that there cannot be a "malicious postponement of the right to defense," since, if this occurs, it could be grounds for the nullification of the entire case. "It should be done in dribs and drabs," he asserts.

He defends a different approach than criminal lawyer Ramon Setó. While agreeing that this is a point open to attack by the defense, he believes that the investigating judge in the case, Rubén Rus, has certainly been cautious when justifying the extensions. And how has he justified them? Within the framework of the summary, Rus is extending the confidentiality of the investigation, citing the complexity of the case or waiting for specific proceedings. In one of the rulings, he argues, for example, that, given the prosecutor's request for records of the transactions between Messer Ibérica de Gasas and Equipo Económico with third parties, it is necessary to extend the confidentiality because, failing to do so and having to notify those under investigation could "frustrate" the progress of the investigation. Regarding other proceedings, he is more general and states: "Taking into account the proceedings underway, it is appropriate to extend the declaration of confidentiality of the proceedings."

When the case broke, the first statement issued by the Economic Team already indicated that it would pursue a challenge to this action. "The Economic Team denounces the lack of protection it has suffered, considering that the judicial proceedings have been kept secret for seven years, something absolutely abnormal," they stated. Lawyer and UB professor Joaquim Bages explains that it will be the judge himself, the Tarragona Court of Appeals, and ultimately the Supreme Court who will decide whether or not there has been a violation of rights due to procedural violations.

The separate piece

The Montoro case began "casually" During the search of the Messer Ibérica de Gases company in Tarragona, a message was discovered during the email dump of this company stating that paying Equipo Económico, a company linked to Montoro, is the "most direct" way to obtain the tax reduction they are seeking. In August 2018, based on the evidence provided by the Mossos d'Esquadra (Catalan police), the judge decided to open a separate investigation within the same investigation.

At this point, Joaquim Bages explains that a "chance" discovery does not in any way prevent an investigation, but rather the limitation is that it is not a "prospective" investigation, in the sense of a "general case." What will be assessed in the Montoro case, he clarifies, is whether what the Catalan police found constituted sufficient evidence of a crime to open a separate investigation. Melero says that for the case to be decided by the judge himself, clear rules of connection between the cases are needed, "of subject, object, and basis." Otherwise, he adds, the case must be distributed and transferred to another judge.

Collegiate decision

Beyond the procedural issues throughout the investigation, Bages also points to another, more "substantive" argument. He states that one of the arguments the defense may use is that the legislative modifications made to obtain tax exemptions for companies were "based" on the "public interest." Thus, he believes it is necessary to analyze the explanatory statements of these legislative reforms and also take into account that they were collective decisions of the Congress of Deputies. "These are measures that do not depend on the will of a single person and that were supervised," Bages points out regarding one of the arguments the defense may raise.

After seven years of investigation, then, a battle of appeals and counter-appeals now begins, with which Montoro's lawyers and the Economic Team will attempt to dismantle the investigation and bring down the case.