The Fourth Section of the Constitutional Court (TC) has agreed to dismiss the appeal filed by the defense of José Ramón Prado Bugallo -Sito Miñanco- against the interception of his communications in the Estremera prison on the understanding that the matter lacks special constitutional significance .
In the order, the magistrates explain that the appeal finds origin in the decision of the director of the penitentiary center to intervene for six months the communications of the well-known Galician drug trafficker. The telephone punctures were agreed in December 2020, and after assessing that it was necessary, the director informed the Penitentiary Surveillance Court.
As explained in the order of the TC, Sito Miñanco alleged that the judicial resolutions that he challenges (the support of the National Court and the Central Court of Penitentiary Surveillance to the decision of the director of the prison) violated his rights to effective judicial protection without defenselessness, to equality before the law without any discrimination prevailing, to physical and moral integrity, to the secrecy of communications and to the presumption of innocence. It also highlighted that article 51.5 of the General Penitentiary Organic Law (LOGP), which allows the suspension or intervention of oral and written communications of inmates in a penitentiary center by decision of the director, “contradicts the Constitution, because it replaces the judicial authorization of the intervention by a mere giving of account of the measure to the court a posteriori”.
However, the TC magistrates point out that the matter does not have constitutional significance because there is already a consolidated doctrine "that does not call into question the constitutional legitimacy of the ex post judicial control of the planned measure of intervention or suspension of prisoners' communications."
And they recall that, in the specific case of Sito Miñanco, the intervention decision was notified to the preventive prisoner "immediately" and the prison surveillance court was informed, as required by law. “Ultimately, this Section finds no reason to modify a consolidated doctrine, whose specific application to the case is the essential foundation of the amparo remedy,” they resolve.
In addition, they recall that already in December 2021 the First Section of the Criminal Chamber of the National High Court agreed to annul the extension of the intervention of communications "on understanding that the circumstances that had motivated it no longer existed".
“The exception becomes the rule”
The resolution of the TC has the particular, dissenting vote of one of the three magistrates who saw the matter, Ramón Sáez Valcárcel. He indicates that to date there has been no pronouncement on the constitutionality of this waiver of prior judicial authorization for the interception of communications.
Thus, he understands, agreeing with Miñanco's defense, that there is a collision between article 18.3 of the Magna Carta, which guarantees the secrecy of communications except by judicial resolution, and 51.5 of the general prison law.
He points out that this 51.5 contemplates the interference in communications for penitentiary reasons and is agreed by the penitentiary authority with the sole legal requirement of informing the competent judicial authority.
“In other words, the exception becomes the rule, and it does so without any condition alluding to the impossibility of waiting for a judicial authorization and with the mere requirement of accountability to the judge, without even establishing a strict and immediate judicial control. ex post”, he laments.
The magistrate concludes that this appeal by Miñanco offered the court the opportunity to examine the compatibility between the Magna Carta and the regulation of the intervention of communications in the prison environment. "It would have allowed us -in addition- to analyze the admissibility of the penitentiary practice of agreeing to interfere in the right of a preventive prisoner for long periods of time on the basis of imprecise, and not even circumstantially accredited, risks", sentence.