The Constitutional Court has granted protection to Francisco Grau, a close associate of former PP Minister Eduardo Zaplana, believed to be the architect of the financial engineering with whom he plotted the Erial case, in connection with allegedly obtaining commissions and Geldern laundry from the Valencian Community wind plan. The judgment of the First Chamber of the Court assumes that in this case the defense lawyers were denied the necessary information to appeal against the provisional detention agreed against Grau. The same measure was also taken against Zaplana, which however did not take any action against it. The Guarantee Court considers that the secrecy of the summary was not a sufficient reason to deny the defense lawyers access to the most relevant data of the investigation.
The judgment therefore annuls the injunctions refusing the requested information and considers that in Grau’s case his right to personal liberty and his right to a defense were violated by not allowing him access to the content of the proceedings, that is necessary for the appeal against the agreed provisional arrest. The Constitutional Court already has some previous resolutions in this direction, but wanted this challenge to serve to complement and consolidate them. The judgment in Grau, for which Judge Juan Carlos Campo acted as rapporteur, emphasizes in this sense that it is necessary “to move forward with this progressive definition of the right of access to justice”.
The Erial case indicts 15 people, including Eduardo Zaplana and his alleged adviser and figurehead, who may face trial later this year. The criminal case dates back to 2018, when the Investigative Court No. 8 of Valencia ordered the provisional detention of Grau, notified and without bail. The court failed to share with the defense the essential evidence on which its decision was based, resulting in a multi-month chain of appeals that were dismissed without Gray being released. His defense pointed to the difficulty of fully advocating the request for his pre-trial detention to be lifted without access to the information on which the continuation of the measure was based, even though the successive decisions alluded to the existence of a suspected risk of absconding. The provisional release for this case took place in February 2019.
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The defense appealed for Amparo to obtain a judgment challenging the refusal to provide the requested information specifically to contest the length of the provisional detention measure. The prosecution maintained this allegation. And now the verdict has recognized that Grau’s fundamental rights have been violated.
The judgment reasoned that “the purpose of the legally recognized contact and the modifiability of the provisional detention in accordance with the development of the procedural circumstances and the passage of time determine that the person deprived of liberty may request the return of the material in which the Support action at any time during the procedure.” And it emphasizes that the legitimate purpose of this access to basic data of the procedure is justified “to have verified information that will allow him to assess the factual-legal coverage of the provisional detention and , when it deems it appropriate, to question its legality”.
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The judgment adds that this right of access to relevant information “covers only the essential elements to challenge the lawfulness of the provisional detention and not all measures, but cannot be restricted to that extent by the declaration of non-disclosure of the performances”.
The judgment briefly states that if it is shown that in this case “the legal guarantee of access to the essential procedural elements has not been respected, the Amparo prevails to challenge the provisional detention indispensable for a defense against the precautionary deprivation of liberty”. It is therefore a resolution whose main effect is that its teaching must be taken into account and applied by the courts confronted with similar cases.