The Justice of the Balearic Islands refuses to annul the investigations against the judge in the Cursach case

The Justice of the Balearic Islands refuses to annul the investigations against the judge in the Cursach case

The Superior Court of Justice of the Balearic Islands (TSJIB) has refused to annul the investigations that it maintains open against Manuel Penalva, the judge who was in charge of investigating the alleged police network concocted to keep the business activities of the considered 'king of the night' afloat Majorcan', Bartolomé Cursach. The magistrates have thus rejected the request for annulment that the former instructor had filed, considering that the investigations launched against him for alleged irregularities while investigating Cursach's businesses were based on "illegal actions" and "radically null".

Specifically, the former magistrate – the General Council of the Judiciary (CGPJ) agreed to his retirement in July last year, at the age of 54, due to permanent disability – was referring to access to the list of calls of two of the journalists who covered the case Cursach as well as the police intervention of their mobile phones in search of certain leaks related to the case, measures against which the Constitutional Court recently ruled and which, according to Penalva, led to promoting a macro-case against the former investigators of the Majorcan tycoon based “on the data and information obtained from those invasive and illegal measures”.

Now, the highest judicial instance of the Balearic Islands has dismissed –again– Penalva's claims by declaring that the recent Constitutional ruling – which considers the right to effective judicial protection of the two informants violated by not allowing them to appeal the order that authorized the search their phones – does not affect investigations into the former judge. The court recalls, in fact, that the link between the seizure of the mobiles and the investigations initiated against Penalva was already "absolutely ruled out" when the TSJIB rejected in June 2020 one of the first requests for annulment made by the former magistrate.

In its order, to which has had access, the Civil and Criminal Chamber argues that the investigations carried out to investigate the alleged illegal practices committed during the investigation of the Cursach case –among them, the alleged disclosure of information related to the case while it was under summary secrecy – were initiated "long before" any action was taken on the journalists, so "investigative elements were already available that pointed" to certain people such as Penalva and the former anti-corruption prosecutor Miguel Ángel Subirán, among others.

Likewise, it underlines that "the violation of fundamental rights" appreciated in the resolution of the TC affects, in any case, the journalists themselves, so that the legitimacy so that the violation of rights declared by the court of guarantees can be repaired -allowing them to appear in the case to be able to appeal the orders for which they were harmed – corresponds only to those who suffered it, in allusion to the informants.

In line with what was stated by the Anti-Corruption Prosecutor's Office and several private accusations, the magistrates emphasize that the initial indications of suspicion against Penalva, Subirán and four Money Laundering police officers with whom they worked on their investigations into Cursach were not obtained from the phones of the journalists. Not in vain, they remember that already on August 3, 2017 – the informants' call lists were obtained on October 26, 2018 and their telephones were tapped on December 11 – several members of Money Laundering provided data about the alleged leaks to the press that his group was making and the "extreme reaction" that occurred when it was learned that an investigation had been launched into such revelations.

But, above all, the court abounds, it was as a result of the arrest of two of the Money Laundering police officers, on December 18, 2018, and the analysis of the mobile phone of one of them – both handed over their devices and voluntarily authorized access to its content – ​​as the existence of a WhatsApp chat surfaced that, under the name of 'Operation Sancus', was kept open by Penalva, Subirán and the four members of Blanqueo while they were in charge of the Cursach case.

As the anti-corruption prosecutors of Madrid Tomás Herranz and Fernando Bermejo, the National Police and some thirty private accusations maintain, the conversations found would reveal the allegedly coordinated action that the judge, prosecutor and police carried out to, supposedly, pressure witnesses, make arrests illegal acts and deliberately lengthen the imprisonment of several people under investigation in the Cursach case with the aim of propping up their accusations. The discovery of such practices led the judge, who was then investigating the alleged leaks, to expand his investigations to new crimes, among them those of belonging to a criminal group, illegal detention, alteration of evidence, coercion and inducement to false testimony.

The court thus rejects the claims of the former judge Penalva and, as it did on previous similar occasions, imposes the payment of the costs generated after his request for annulment both to the former magistrate and to those who adhered to his request, that is, the four Money laundering police also investigated in this legal proceeding.

Following the resolution of the TSJIB, both Penalva and the four money laundering policemen – two inspectors, a sub-inspector and an agent – ​​are waiting to find out if they should go to trial solely for the alleged leaks they made or - as requested by the prosecutors of Madrid and the private accusations - sit on the bench for the most serious crimes for which they were investigated: illegal arrests, disclosure of secrets, prevarication and professional disloyalty.

In the same way, the accusations claim that the former prosecutor Subiran should also be tried, whose accusation was provisionally filed after alleging post-traumatic stress –which, he assures, would prevent him from facing his right to defense with guarantees–, understanding that he is capable of defend himself against the accusations made against him for the role he played when he was in charge of the Cursach case and recall the events in which he could have been involved.

In parallel, the macro-trial against Cursach and 22 other defendants is scheduled to start on June 13, most of them local managers and police officers from Palma who were allegedly entertained with sexual services, drinks and drugs in exchange for sponsoring the smooth running of the the businesses of the Cursach group and to punish its competition. The Prosecutor's Office claims for all of them sentences that add up to more than 100 years in prison. Based on the investigations carried out by former judge Penalva and former prosecutor Subirán, Anticorruption accuses them of integrating an alleged extortion plot and favor treatment while the defendants appeal for the annulment of their case in a scenario, as indicated by a of the defenses, "unusual in the judicial history of a Rule of Law".

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