Bankia's trial court (President Ángela Murillo and magistrates Francisco Martell and Teresa Palacios), which has been preparing the resolution on previous procedural issues since the beginning of the year, will notify its decision this Tuesday, January 8: it is inclined to welcome the position of the Anticorruption Prosecutor's Office to maintain the presence in the trial of the popular accusation and of the private accusations, directly harmed in their investment during the IPO on July 20, 2011.
The oral trial began on November 26 and agreed three days later to restart the sessions on the morning of this Tuesday, January 8, with the notification of the decision of the court on the application of defendants' defenses and the current address of Bankia, who have requested to expel from the trial the popular accusation in application of the Botín doctrine, on the one hand, and to the particular accusations, on the other, for representing injured people who would have already recovered financially.
With everything, The Anti-Corruption Prosecutor announced at the beginning of the oral trial an important change regarding the positions he had held during the investigation of the case, between 2012 and 2017, which has subtracted, if possible, any possibility of expelling the popular accusation.
Until then, the popular accusation of the Independent Confederation of Credit (CIC, union of employees of the old savings banks) imputed alone to the 31 administrators, to the hearing partner Deloitte, Francisco Celma; to the firm Deloitte; to Banco Financiero y de Ahorros (BFA) and to Bankia, the scam of investors (article 282 bis of the Criminal Code) and the falsification of annual accounts or other documents (article 290)
On the other hand, the Prosecutor's Office accused only four administrators (Rodrigo Rato, José Luis Olivas, José Manuel Fernández Norniella and Francisco Verdú) and for only one crime: investor fraud. As he maintained until the beginning of the trial, the elements of the criminal type of the crime of falsification of the annual accounts were not given.
In this situation, the request to apply the Botín doctrine was, as a judicial source consulted, said "white and in bottle". Because the popular accusation could not alone, according to the decision of the Supreme Court of December 2007 on Banco Santander, to place on the bench a defendant for a crime in which the Prosecutor does not accuse or request the dismissal.
This budget was given in the case of Bankia for all administrators and entities that exceed the four that are accused by the Office of the Prosecutor.
But this panorama has changed on November 26 last. The prosecutor Carmen Launa announced that the Prosecutor's Office is also investigating – as the popular accusation – the crime of accounting falsification in relation to the reformulation of the accounts of the Bankia group of 2011 practiced in May 2012.
Therefore, if confirmed the extension of crimes by the prosecution is no longer the popular accuser alone – representing the lawyer who filed the criminal complaint in 2012, Andrés Herzog – the only accuser for accounting falsification. The requirement of the Booty doctrine is no longer given.
But, in addition, there is the circumstance that prosecutor Launa proposed to the court, on November 28, reject the application of the Booty doctrine when insinuating, without mentioning it, the precept of the doctrine Atutxa, adopted by the Supreme one month after the sentence on the case of Banco Santander. Indeed, in January 2008, the same Second Chamber of the Supreme Court consecrated the legitimacy of popular action "dealing with the protection of collective and diffuse interests", there "where popular action can unfold its most genuine function".
The prosecutor rejected the requested expulsion with the argument that the falsification of the accounts, the bankruptcy and the rescue of Bankia caused a "collective damage" that was necessary to wipe out 23,465 million euros of public money, the biggest rescue, he said. Spanish financial history.
Another outstanding issue is that of the private accusations, which are representative of the injured parties, who, for the most part, have already recovered their investment, following the judgment in early February 2016 of the First Chamber (Civil Chamber) of the Supreme Court, which He gave the reason to the minority shareholders that invested in the flotation (1,800 million euros). The judgment cited confirmed the existence of "serious inaccuracies" in the Bankia issuance prospectus approved by the National Securities Market Commission (CNMV). Not a few of these injured, who accused in the trial, have already been removed. The prosecutor, however, has also opposed the expulsion of private accusations, who must prove their prejudice during the trial.
Rato acted with "economic rationality"
The current address of Bankia contributed last November 26 to the trial a new expert report prepared by the Professor of Financial Economics and Accounting of the University of Navarra, Germán López Espinosa, in which, in line with other reports from part and existing in the case, argues that the team of Rato acted with "economic rationality" and notes the absence of "accounting irregularities." The new report questions the six reports submitted by the judicial experts of the Court number 4 of the National Court, the inspectors of the Bank of Spain Víctor Sánchez and Antonio Busquets.
However, while defending the performance of the team of Rato, the report argues that the reformulation of the accounts for the year 2011 ordered by his successor, José Ignacio Goirigolzarri in May 2012, "was an obligation for both the auditor and the administrators ". Rato, for his part, maintains that said reformulation is illegal. The judicial experts also qualify this reformulation as fraudulent because they covered sanctions that had to be made before the July 2011 IPO.
This Tuesday, after notifying the order of the previous issues, the court will proceed to read the proceedings and begin the interrogation of the former president of Bankia by prosecutor Launa.