The former President of the Government José Luis Rodríguez Zapatero maintains that there are legal reasons to request the annulment of the case opened against him due to the way two devices have been examined, which the National High Court judge investigating the 'Plus Ultra case', José Luis Calama, considers essential: a hard drive seized from a lawyer and the mobile phone of a former airline executive sent by the United States.
This is stated by the former socialist leader in several documents, to which Europa Press has had access, presented after his statement as an investigated person for allegedly leading a influence-peddling scheme surrounding the 53 million euro bailout granted to Plus Ultra during the pandemic.
On the one hand, Zapatero asks the magistrate to request that the Anti-Corruption Prosecutor's Office identify the reasoned judicial resolution that permitted and authorized the analysis of a hard drive seized from lawyer Miguel Palomero, who is being investigated in the case, which contained WhatsApp conversations and other documentation examined by the investigators.
The former president's defense emphasizes that it has not been able to locate any resolutions that expressly and reasonably authorize the Anti-Corruption Prosecutor's Office or the Judicial Police to access the content of that computer support.
It points out that, if there were no authorization contained in a reasoned resolution, the essential guarantees of the procedure would be "radically undermined" because the police actions would have been carried out without "the legal authorization required by the Constitution," infringing upon the fundamental rights to the secrecy of communications, privacy, and the protection of personal data.
"As a consequence of the essential deficit of guarantees, the content of that device that was examined by the UDEF and, in particular, the WhatsApp conversations analyzed, must be excluded from the procedure," he maintains, warning that he could file an incident of nullity if a judicial resolution that supports this examination does not appear.
The mobile phone and cooperation with the United States
In another document, Zapatero appeals the judge's decision not to extend the request for international cooperation to the United States for it to provide more details on how it obtained the content of the phone of Rodolfo Reyes, a former airline executive charged in the case.
Calama argued that he cannot make a "founded assessment" on the request for information about Reyes's mobile phone until the US authorities respond to the rogatory commission sent a few weeks ago, which is necessary to use the content of the Venezuelan businessman's phone as evidence.
"The request for an extension of the rogatory commission does not entail, in any way, our acquiescence with the incorporation of the content of the device into the case, nor recognition of the regularity of the controversial material, nor conformity with its eventual use as evidence," the defense specifies.
In his opinion, it is "urgent" to clarify "all the circumstances" that would make possible the use in the proceedings of the elements extracted from Reyes's device by the United States, "beyond mere American authorization, so that the investigation cannot be based, in whole or in part, on the content of the aforementioned device."
The former head of the Executive states that he could also exercise "actions for nullity" as provided by law for "the exclusion of the material" due to a potential violation of the rights to secrecy of communications, privacy, personal data protection, and a fair trial.
As he explains, "the control that is sought here is precisely aimed at clarifying whether the conditions of lawfulness concur, the absence of which would determine that exclusion."
Doubts about the authenticity and custody of the material
In a previous document, to which this agency also had access, Zapatero's defense had already focused on the "absence of complete data" regarding the seizure of Reyes's device, as well as the method of dumping and the system of conservation and custody of the device that the US police accessed.
The lawyer warned that the conditions under which the exchange of information between the police authorities of the United States and Spain took place generate "reasonable doubts about respect for the right to a fair trial."
Therefore, he requested Judge Calama to demand from the United States "the specific judicial resolution," order, or administrative authorization that supported the seizure or cloning of Reyes's cell phone and the subsequent transmission and analysis of the device in Spain.
The lawyer concluded that it is a "respectful request" to the judicial body and argued that its purpose is "to verify if the conversations that are said to be contained in the device and that have been analyzed by the Police and the Public Prosecutor's Office truly meet the requirements of authenticity, integrity, and legality that are essential for them to be considered suitable as evidence in criminal proceedings."
In the investigation, the content of Reyes' mobile phone has become one of the main sources of evidence. In one of the messages examined by the agents, the former executive of the airline wrote: "Our buddy Zapatero behind it," in reference to the rescue process.
When imputing Zapatero, the judge highlighted the collaboration of the US agency Homeland Security Investigations (HSI) "through the cooperation mechanisms available to the National Police," given that it was this agency that provided the Central Brigade for the Investigation of Money Laundering and Corruption with the extraction of the content of Reyes' mobile phone.