The Appeals Chamber of the National Court acquitted Police Commissioner José Manuel Villarejo for the work carried out for Repsol and Caixabank to obtain information from the former president of SACYR Vallehermoso Luis del Rivero, between 2011 and 2012, for which he was sentenced to eight years in prison for four crimes of discovery and disclosure of private secrets.
In a sentence, the magistrates evaluate the resources of Villarejo and his associate Rafael Redondo, the latter sentenced to 6 years in prison, against the sentence of the Fourth Section last May which condemned them both in this exhibit 21, called “Project Wine”, of what is called the macro Tandem case. On the contrary, he rejects the appeal of the anti-corruption prosecutor’s office which requested, among other things, that Villarejo and Redondo be found guilty of the crime of corruption.
The acquittal for corruption lies in the extremely weak situation in which the judicial investigation against the commissioner finds itself. The National Court considers that, although he was deployed within State Security when carrying out orders for individuals, Commissioner Villarejo did not use his capacity as a police officer to prepare the files which he then sold at stratospheric prices.
The Appeals Chamber explains that the statute of limitations for the crime of discovery and disclosure of secrets of which Villarejo and Redondo are accused is five years, but since it concerns corruption, the limitation period would be that of the latter, i.e. 10 years. However, he clarified that after being acquitted of the charge of corruption, the offense of discovery and disclosure of secrets would regain its initial limitation period of five years, which in this case would have been exceeded at the start of the investigation.
In this sense, the Court considers that the lower court’s decision incurred a “blatant contradiction” by correctly citing the Supreme Court’s jurisprudence on the limitation period for related crimes but incorrectly applying it.
He therefore assesses the resources of the two convicts and absolves them by declaring the extinction of their criminal liability by prescription, while revoking the agreed confiscation concerning the profits of 389,000 euros that they had received for their work at Repsol and Caixabank.
The Appeals Chamber recalls the reiterated jurisprudence of the European Court of Human Rights, the Constitutional Court and the Supreme Court, according to which the appeal against a decision of acquittal does not constitute a complete second instance, but rather an extraordinary appeal for the external control of judicial motivation and is only admissible to examine whether the decision lacks motivation, is arbitrary, unreasonable or manifestly erroneous, but cannot replace the assessment of the evidence carried out by the court which had direct contact with the evidence.
The decision of the lower court is not precisely a model of motivation, there is no sufficient reason to declare its nullity for lack of sufficient motivation, because, regardless of the fact that the applicants are not satisfied with certain statements he makes and the reasons that led them, he presents his arguments in terms that allow knowing the reason for the decisions adopted, warns the Court.
For all these reasons, the Appeals Chamber rejects the annulment of the sentence and essentially confirms the decisions of first instance, even if it considers that the offense of discovery and disclosure of secrets has prescribed.
The Appeals Chamber rejects the appeal of the Anti-Corruption Prosecutor’s Office, which requested the conviction of Villarejo and Redondo for corruption, as well as the former security chiefs of Repsol Rafael Araujo and Rafael Girona and of Caixabank Miguel Ángel Fernández Rancaño for the latter offense as well as for discovery and disclosure of secrets. He also rejects appeals against private accusations, including that of Luis del Rivero.
The lower court’s decision considered that Villarejo and Redondo had acted privately through their company Cenyt and had not used police means to carry out the work, so their acquittal was appropriate, while for the Prosecutor’s Office, the commissioner would have used his position in the police to carry out the mission.
After analyzing both positions, the Appeals Chamber finds that the lower court’s decision justified the acquittal because it was not proven that Villarejo’s activities were related to the exercise of his functions nor that they were intended to undermine the legitimacy and performance standards of public administration. Likewise, he argued that Villarejo acted in an absolutely private domain, without any police intervention.
“All these assertions are deduced from the account of proven facts, they are logical and coherent and, whether one agrees with them or not, they do not involve a manifest error nor are they arbitrary or unreasonable,” he emphasizes.
Concerning the acquittal of the security managers of the two companies, the Appeals Chamber affirms that it has not been proven that Repsol or Caixabank or their security managers knew that the telephone traffic of Luis Del Rivero or of his closest collaborators such as his wife, his bodyguard or those of the chairman of the board of directors of Sacyr was going to be obtained.
“Based on the certainty of the existence of said call traffic thus obtained, and the reality and veracity of the data contained therein, the truth is that there is no data or evidence that proves that this information was transmitted to the defendants Rafael Araujo, Rafael Girona and Miguel Ángel Fernández Rancaño,” he concludes.
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