The exculpation of Juan Carlos I caused discrepancy between prosecutors

Juan Carlos I was free of guilt for the tax crimes he committed for years, uncovered by the investigation opened from June 2020 to February 2022 at the State Attorney General's Office.

The emeritus king emerged unscathed from almost 20 months of pre-trial proceedings because the constitutional privilege of inviolability protected him, since he decided to pay more than five million euros in two regularizations before the Tax Agency for taxes that he avoided paying when he was due during the four years following his abdication (2014-2018).

That acquittal, which allowed Juan Carlos I to return to Spain for a visit just a few weeks ago, was not exempt from debate among the prosecutors who studied the case, before the doubts generated after knowing certain facts of the private life of the monarch.

Dolores Delgado, Attorney General of the State, formed a team of seven prosecutors: the Anti-Corruption chief, Alejandro Luzón;

the Lieutenant Prosecutor of the Supreme Court, Juan Ignacio Campos (who died last December);

the head of the Technical Secretariat, Álvaro García Ortiz;

three other Supreme Court support prosecutors, and herself.

This group studied the criminal consequences of the three proceedings opened to King Juan Carlos I for his hidden fortune in Switzerland and other undeclared income to the Treasury.

The final decision of the team of seven prosecutors, who maintained discrepancies during the processing of the three cases, was to file the pre-trial proceedings following the majority position, supported by the jurisprudence of the Second Criminal Chamber of the Supreme Court and the Constitutional Court.

The two controversial issues were whether the inviolability of Juan Carlos I during his reign protected him from his private acts, and whether the fiscal regularization carried out by the king emeritus after learning that he was being investigated was spontaneous and, therefore, valid.

Dolores Delgado, in a forum published today by EL PAÍS, remembers it this way: “I formed a group of highly qualified prosecutors, we worked as a team, in the meetings all the matters, the tests and their results, the indications and their interpretation were discussed. , legal questions or jurisprudential aspects.

There was not always unanimity, we maintained discrepancies, but I opted for the majority position that was based on the tendency of the Second Chamber of the Supreme Court”.

One of the participants in those debates recalls that although they had doubts about whether the two regularizations of the king emeritus were valid after knowing that he was being investigated, the prosecutors who directed that investigation gave sufficient explanations and solid arguments to maintain that the exculpatory route used by Juan Carlos I was correct.

There was more controversy about the scope of the inviolability that the Constitution grants to the King, although the jurisprudence, both of the Supreme Court and the Constitutional Court, resolved the discrepancies in favor of considering that Juan Carlos I could not be tried for the private acts carried out during his reign. no matter how criminal they were.

Juan Carlos I liquidates millionaire debts

The Prosecutor's Office collected the jurisprudence of the Second Chamber of the Supreme Court on the possibility that a citizen avoids being charged with a tax crime if, before knowing that he is being investigated for that reason, he pays the Tax Agency everything he owes.

That is what the emeritus king allegedly did between December 2020 and February 2021.

The Supreme considers that "a positive and effective conduct" of the alleged fraudster is necessary, "which includes self-denouncement, through the voluntary and truthful acknowledgment of the debt."

The acknowledgment or payment of what is owed must be made “before the notification of the commencement of proceedings by the Tax Agency;

or, as the case may be, before the Public Prosecutor, the State Attorney or the representation of the Administration, files a complaint or complaint;

or before the Public Prosecutor or the Investigating Judge carry out actions that allow them to have formal knowledge of the initiation of proceedings.”

Some of the seven prosecutors who studied the case had doubts as to whether any of the notifications made to Juan Carlos I's lawyer had "sufficient entity" to consider that the king emeritus had had "formal knowledge of the initiation of proceedings."

That fact would have invalidated the regularization and motivated the filing of a complaint by the prosecution against Juan Carlos I for tax crime, given that the amount defrauded exceeded 120,000 euros.

The jurisprudence of the Supreme Court has declared that the "formal knowledge" is the one that occurs when there is a "notification of the filing of a complaint or complaint by the Public Prosecutor, the State Attorney or the procedural representative of the Autonomous Administration, foral or local that corresponds;

o notification of the initiation of a criminal investigation;

or when actions are carried out that allow the author to become aware of the initiation of proceedings.”

In all these situations, according to the Supreme Court, "the fraudster is revealed that his illicit action is being investigated and, therefore, in the process of being detected."

Notification before regularization

The Prosecutor's Office made two notifications to the king emeritus's lawyer: on June 24, 2020, communicating the initiation of Investigative Proceedings 17/2020;

and on November 6, 2020, once Investigation Procedures 40/2020 have been initiated.

"Well, neither in the decrees of initiation of both investigative proceedings nor in the respective notifications was there a reference to the facts to which the tax declarations made" by Juan Carlos I are contracted, explains the decree of the Prosecutor's Office where it is filed investigation to the king emeritus.

“The notifications of June 24 and November 6, 2020,” the prosecutors write, “in no way could they comply with the mandatory information required by article 118 of the Criminal Procedure Law (“the information will be provided with the degree of sufficient detail to allow the effective exercise of the right of defense”)”.

The press detailed the crime before the debt was paid.

However, since the beginning of November 2020, the media reported on the investigation opened by the Prosecutor's Office to Juan Carlos I and detailed that it was the use of credit cards linked to accounts that were not his and whose expenses were covered by Mexican businessman Allen Sanginés-Krause.

Until a month after those publications, the king emeritus did not present to the Tax Agency the regularization of those incomes through Sanginés-Krause that Juan Carlos I had not declared, but that he knew, at least from the press, that they were under suspicion. .

The scope of inviolability

To determine if the inviolability that the Constitution establishes for the King protected Juan Carlos I from some of the private activities during his reign, clearly criminal, the prosecutors who investigated him resorted to the jurisprudence of the Supreme Court: The Second Chamber of the Supreme Court ruled own doctrine after a complaint in 2014 for tax offense against Juan Carlos de Borbón y Borbón.

In said Order, it was agreed to file the proceedings, stating in the sole legal basis: "The complaint filed refers, although in a very general way, to the person who, at the time of carrying out the facts, to those who in the complaint is also alluded to in a very generic way, he held the dignity of King of Spain, as highlighted by the Public Prosecutor, article 56.

According to this criterion of the Supreme Court, explains the Prosecutor's Office, "the inviolability and consequent criminal irresponsibility of the king are absolute, to the point of not being able to establish a distinction between private activities (

) and public activities (

) .

”.

This conclusion is supported by the most recent reference of the legislator on the matter, embodied in the preamble of Organic Law 4/2014 that the Government of Mariano Rajoy agreed with the PSOE to protect the king emeritus by approving him before the Supreme Court .

The will of the legislator

To justify that the inviolability of the King extends to crimes committed in his private activities, the Supreme Court prosecutors relied on "the will of the legislator who, more than forty years after the Constitution was approved, has not considered it appropriate to transfer to any procedural or organic law, the possibility that the king, while holding the head of state, can be tried by any court.

In reality, some parliamentary groups have tried to promote legal reforms that have been rejected because the lawyers in Congress understood that they did not respect the constitutional framework, such as the last one presented by the PNV just a month ago.

The Supreme Prosecutor's Office also ignored in its arguments that the legislators who approved the Constitution, when they discussed article 56 on the inviolability of the king, referred at all times to protecting the King from prosecution for his public acts with which he endorsed decisions that others had taken.

The Prosecutor's Office argued in the file decree that the Constitutional itself in its sentence of October 2, 2019 that annulled a resolution of the Catalan parliament to investigate the Swiss accounts of Juan Carlos I, established that the inviolability of the monarch was "absolute".

“Indications from which criminally relevant implications could be derived”

Juan Carlos I played his future on a card on December 9, 2020. Advised by his lawyer, he presented that day to the Tax Agency the first of the two tax regularizations that involved an acknowledgment that he had not declared economic income to the Treasury extraordinary things he had.

The law establishes that if a citizen, voluntarily and spontaneously, pays some debts that he has with the Treasury but that nobody has claimed until then, he will be free from being judged for those acts.

King Juan Carlos's lawyer launched that acquittal excuse that freed the former monarch from prison and ended up accepting the Supreme Prosecutor's Office.

But the validity of that initiative was always under suspicion because Juan Carlos I paid what was owed when he already knew that he was being investigated, because the Prosecutor's Office had notified him so.

What follows is the literal transcription of the notification from the Prosecutor's Office: “I hereby notify you that Criminal Investigation Proceedings No.

40/2020, in compliance with what was agreed by the Hon.

Ms. Attorney General of the State in Decree of November 3, 2020. Said Proceedings arise from those processed by the Special Prosecutor's Office against Corruption and Organized Crime with no.

12/2019, in which indications have been revealed that could derive relevant criminal implications that affect the King Emeritus, Mr. Juan Carlos de Borbón y Borbón.

These Investigation Proceedings are processed in accordance with the provisions of art.

5 of Law 50/1981, of December 30, regulating the Organic Statute of the Public Prosecutor and in art.

773.

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