The judge of the Audiencia Nacional who is investigating the Plus Ultra case, José Luis Calama, has refused to investigate former Prime Minister José Luis Rodríguez Zapatero for an alleged crime of misappropriation of public funds, contrary to the criteria of the Anti-Corruption Prosecutor's Office, which had requested to take that step after it became known that the former socialist leader did not hand over to State Heritage the jewels seized in his office.
In an order reported by Europa Press, the magistrate maintains that "it cannot be affirmed" that "the appropriation of the jewels," which Zapatero attributed to a "personal" gift from the King of Saudi Arabia during an official visit to Spain in 2007, "constituted public patrimony for the purposes of the crime of misappropriation merely by the circumstance of having been received in consideration of the position."
The judge invokes the absence of a norm in force at the time of the events
In his resolution, José Luis Calama recalls that it was not until 2013, with the Transparency, Access to Public Information and Good Governance Law, that it was expressly established that high-ranking officials cannot "accept gifts that exceed social or courtesy customs" and that those gifts of institutional relevance must be incorporated into the patrimony of the corresponding Administration.
Against this, the instructor explains that the Code of Good Governance approved by the Council of Ministers on February 18, 2005, under the Zapatero Government, cannot be attributed "integrating effectiveness of the criminal type" because it was an instrument that, although "possessed an evident ethical nature and institutional self-regulation," lacked "sufficient normative value to determine the public ownership of goods or to expand the objective elements of the crime of misappropriation."
For the magistrate, "to admit the contrary would mean converting codes of conduct or principles of good governance into authentic sources of criminal incrimination, a conclusion incompatible with the requirements derived from the principle of legality."
Calama adds, supported by jurisprudence from the Supreme Court, that the jewels were a gift received at a time when "no legal norm in force at the time of the events established their automatic incorporation into state patrimony."
“Even admitting that the appropriation of the jewels could raise ethical or political reproaches, it cannot be affirmed that they constituted public patrimony for the purposes of the crime of embezzlement due to the mere circumstance of having been received in consideration of the position, as there was no legal norm at the time of the events that determined their automatic incorporation into state patrimony,” the order summarizes.
Tax inspections on Zapatero and his circle are halted
In another resolution, to which this agency has had access, the judge agrees to halt the inspection procedures of the Tax Agency (AEAT) regarding José Luis Rodríguez Zapatero, his wife and daughters, as well as the partner and considered friend of the former president, Julio Martínez Martínez, and several companies linked to them.
Calama is investigating Zapatero as the alleged leader of a influence peddling network that would have obtained economic benefits in exchange for his mediation for the concession of the 53 million euro rescue that the Government granted to the airline Plus Ultra during the pandemic.
Furthermore, the magistrate had already charged the former president with an alleged tax and smuggling crime after the discovery of the jewels in his office, pieces that, according to two expert reports, would have reached a value of 1.3 million and 1.02 million euros.
Criminal prejudgment halts the administrative route
Regarding the suspension of the tax investigation, José Luis Calama thus attends to the request of the delegations of the Tax Agency of Madrid and Valencia, which requested to halt the actions due to the “existence of criminal prejudgment.”
According to the second resolution, Hacienda also alleged a “practical impossibility of adequately completing the inspection checks without accessing certain documentation and without knowing the result of the ongoing criminal proceedings.”
The investigated parties, for their part, requested the suspension of the actions, considering that they compromise “their defensive strategy” and place them in the dilemma of continuously deciding on the scope of their collaboration with the inspection regarding facts connected with the judicial investigation.
The car indicates that, through the same representation, "they have expressly communicated to the Tax Inspection their refusal to provide any documentation that could be related to the facts investigated in this criminal case while it remains in process, reiterating said position after successive requests."
Therefore, the judge concludes that "the simultaneous continuation of the inspection procedures and the present criminal investigation has generated an objective situation of practical incompatibility that seriously compromises the usefulness and purpose of the administrative actions in progress."
