Pablo Lucas Murillo de la Cueva (Salamanca, 1954) the magistrate of the Contentious Administrative Chamber of the Supreme Court, the Third Chamber, in charge of authorizing the secret requests of the National Intelligence Center (CNI), will celebrate thirteen years in office next November, after being the second judge in that task, appointed for it in 2009, and renewed every five years since then. His alternate colleague, the magistrate of the Criminal Chamber of the Supreme Court, the Second Chamber, Julián Sánchez Melgar, has been in this task since 2004. In 2019, the president of the Supreme Court and the General Council of the Judicial Power (CGPJ), Carlos Lesmes, proposed to renew them both until 2024.
In the chronicle of these appointments, the magistrate in charge of suspending fundamental rights for security and State reasons, and allowing the intelligence service to enter and search private homes or intervene in communications such as “the magistrate of the CNI & rdquor;.
The episode of the telephone interventions of 63 independence supporters, among high officials, such as that of the ‘vice president’ and ‘conseller’ in 2019 Pere Aragonès, leaders and supporters, has blown up this binomial CNI-Magistrate of the Supreme Court.
In the Organic Law of May 2002 of José María Aznar -president of the PP who came to government astride the great scandal of the generalized wiretapping of the then Cesid -Higher Center for Defense Information- during the administration of Felipe González, it was established in his unique article that the renamed CNI had to “request authorization from the competent magistrate for the adoption of measures that affect the inviolability of the home and the secrecy of communications, provided that such measures are necessary for the fulfillment of the functions assigned to the Center & rdquor ;.
The Public Prosecutor, outside
This request remained in the exclusive hands of the binomial director of the CNI-magistrate of the Supreme Court. The Public Prosecutor, for example, has no intervention in the processing of authorizationsunlike what happens in the ordinary jurisdiction, where the judge requests, when studying this type of measure, inform the prosecutor.
Even before organic law 2/2002 was approved, the CGPJ debated the need to adopt stricter control measures. In early November 2001, the body toughened its opinion on the bill. At the proposal of the member at the time, Ramón Sáez (today a magistrate of the Constitutional Court), the CGPJ introduced new recommendations, among them the need that, in accordance with the requirements of the Constitutional Court and the European Court of Human Rights (ECHR), the law precisely defines the budgets for telephone interventions and home searches that the secret service may carry out. It was also recommended that those affected should be aware of and challenge these measures when they have ceased. But these considerations did not enter into the organic law.
The first magistrates of the Supreme Court, titular and substitute, in charge of these authorizations were Ramón Trillo Torres, president of the Third Chamber, and Julián Sánchez Melgar, member of the Second Chamber. They were elected in 2004 at the proposal of the then president of the Supreme Court and CGPJ, Francisco José Hernando. These appointments caused a split in the governing body of the judges. As reported by the then CGPJ spokesman, Enrique López (current Minister of the Presidency, Justice and Interior of the government of Isabel Díaz Ayuso in the Community of Madrid) both magistrates obtained the support of 11 members (all at the proposal of the Popular Party), plus the independent member Agustín Asparren, with the abstention of the six PSOE members who were joined by Alfons López Tena (CiU) and Félix Pantoja (IU). And, as has been pointed out, Carlos Lesmes later proposed, successively, three renewals of both magistrates.
without real control
“The 2002 system did not establish a real judicial control and from the beginning there were some problems. Because the director of the Center went and invoked the alleged dangers to the stability of the State. And the magistrate gave the green light to the request. The CNI has its security criteria. And it is not clear whether he follows the government’s criteria or what information he gives the government. And the magistrate, what information does he handle? The one given by the CNI. And what motivation do you take into account? The one presented by the CNI. His margin of action, therefore, is very scarce & rdquor; points out a prosecutor consulted.
And the Government, what did it know about the pricks to the independence movement? Because, of course, article number 1 of the law of May 6, 2002 regulating the intelligence service, states: “The CNI is the public body responsible for providing the President of the Government of Spain with the information, analysis, studies or proposals that allow prevent and avoid any danger, threat or aggression against the independence or territorial integrity of Spain, the interests and the stability of the rule of law and its institutions”. Did the CNI inform Pedro Sánchez of the danger of secession from Spain in 2019 for which he had requested and obtained the wiretaps? To all this, since the beginning of 2017 there were already wiretaps authorized by Judge Juan Antonio Ramírez Sunyer, head of the investigating court number 13 of Barcelona.
“Because, what material does the Supreme Court magistrate have? His occurrences of him? Are you going to tell the CNI: listen, I have my own concept of security and it seems to me that what you are asking of me is not duly justified? What they say is that in order to avoid secession we have to investigate all these people, well it seems to me that this one yes, and this one no. Because there is no evidence that the magistrate can collect reports from other departments & rdquor ;.
Know more than the CNI
Indeed, the magistrate works solely and exclusively with the CNI story. “They would have to be very clumsy to bring the magistrate some evidence that is rejectable at first sight. This type of osmosis phenomenon ends with the controller -the judge- knowing more than the controller -the intelligence service- because the directors of the CNI and the operational positions succeed one another and the Supreme Court magistrate remains the same. And so he ends up knowing more than the CNI. It is an anomalous situation & rdquor ;, reasons the prosecutor.
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As noted, the Public Prosecutor has no involvement. “In other countries, these types of requests are analyzed by a group of magistrates ‘in camera’, which gives rise to an exchange of opinions and the demand for evidence. And in our case, the great absentee is the Public Prosecutor’s Office. With twenty years of validity of the organic law of 2002 this system must be changed because it is a purely administrative formal control. As it is secret and what is obtained is not brought to trial, as is the case in ordinary justice, the person affected will never be able to appeal in Spain or abroad”, explains a magistrate to this newspaper.
And in the end, the icing on the “substitution & rdquor; of the director of the CNI Paz Esteban by Esperanza Casteleiro, is the confirmation that some head had to roll. But not only that. “I think Talleyrand (France, 1754-1838) said it: You have to lean on the institutions until by dint of leaning on them they fall. Well, this has happened, Margarita Robles supports Paz Esteban and since someone has to pay the bill, it’s Paz Esteban, and now, under the pretext of tapping the president’s phone, now that it’s my turn, I put the director who wanted to put their day,” ironically the prosecutor.