The defense of , who was an advisor to José Luis Ábalos in the Ministry of Transport, has asked the court that is judging the alleged scheme to collect commissions in exchange for public contracts to buy masks in the middle of the pandemic, to ask the Court of Justice of the EU (CJEU) if the trial should be held in the Supreme Court. If such a request was accepted, the case would be paralyzed until the community court ruled. The lawyer Leticia de la Hoz has raised it in writing and out loud at the preliminary hearing that was held this Thursday to discuss this type of matter. In addition, he has asked, without success, to remove five of the seven judges who make up the court that will try Ábalos, his former advisor, and the businessman Víctor de Aldama for the case masks, something that the judicial headquarters has flatly rejected as untimely.
The oral hearing started after 11:00, with the presence of Ábalos and his former advisor, who have been expressly transferred from . Sitting next to each other, but without interacting with each other, the former minister has been crestfallen, although he has slipped an ironic smile during the intervention of the PP popular accusation; while García began by trying to cover his face with a jacket, something he ended up giving up. Aldama, the third defendant, has been placed only three seats away from them.
Lawyer De la Hoz has been the most forceful. Thus, it has maintained that the Supreme Court must submit up to five preliminary questions to the CJEU to determine whether the case should continue in the Supreme Court, after Ábalos resigned his seat in the Congress of Deputies and, consequently, lost his status as a judge before the high court. In his opinion, the fact that the Supreme Court has retained jurisdiction despite the former minister’s loss of jurisdiction, based solely on an agreement of the Plenary Session of the Criminal Chamber of 2014, without there being any rule that expressly includes it, violates fundamental rights of his client that are also protected by European law. Furthermore, the lawyer has warned, the decision on who is competent to judge the case is decisive for Koldo García because, if the case were to go to the National Court, the former ministerial advisor would have to be released, since the trial would be considerably delayed and would not exist.
On the other hand, the Prosecutor’s Office and the popular prosecution led by the PP have defended the jurisdiction of the Supreme Court and have warned that the true objective of the defense is to delay the case. The Anti-Corruption Chief, Alejandro Luzón, has explained that if the trial were not held now in the Supreme Court, it would not be held immediately in the National Court because there would have to be a readjustment that would mean reopening the investigation “with all the obvious delay that it would produce.” “It would prevent prosecution within a reasonable period of time,” he warned. To this he has added that it cannot be “left to a very free decision of the accused to alter the prosecution body.” “It just seems crazy to me,” he concluded.
Along the same lines, the PP lawyer, Alberto Durán, has observed a clear “strategy to delay the case”, with which García’s defense would seek his release. The lawyer has ironically stated that, despite the fact that “Ábalos has had brilliant lawyers”, who had indicated to him the “appropriate moment” to resign from the seat, he did not do so until after he was sent to trial, which links the competition to the Supreme Court. “Their fate is linked to Ábalos. Together they committed crimes and together they have to be judged,” he replied to García’s lawyer.
Furthermore, both Luzón and Aldama’s lawyer, José Antonio Choclán, have clarified that the jurisdiction of the Supreme Court “does not depend on a mere agreement” of the Supreme Court “but on a jurisprudence that has been peaceful.” The lawyer has been emphatic when claiming that “there is normative support”, not only in the law, when it establishes the scope of the order to open an oral trial (a procedural moment that anchors the jurisdiction of the Supreme Court), but even in a 1912 rule that protects the court from “the vicissitudes” of the Cortes Generales. Luzón also wanted to highlight that the gauging is “a privilege for the person under investigation” that “has been, without a doubt, for Ábalos” but that it must have “a reasonable limit.”
“This is a nullity like a castle”
The rest of the issues raised by García’s lawyer to annul the case, a dozen, had already been developed in the defense brief that she registered before the court, so De la Hoz limited her to highlighting key aspects. Among others, the lawyer has denounced that Ábalos’ former advisor is being investigated “simultaneously” and for “identical facts” in the Supreme Court and in the National Court, where the part of the case that does not directly involve Ábalos, the only person who was in the procedure until he resigned his seat a few weeks ago, is being investigated.
De la Hoz has explained that both courts are investigating “the same awards”, whether Koldo provided privileged information to the company Soluciones de Gestión (linked to Aldama), the increase in assets of the former Transport advisor and the hiring in public companies of two women linked to the former minister. “Either he is tried here or he is tried there,” criticized the defense, which considers that this situation violates the principle that prohibits a person from being tried twice for the same act.
The lawyer has also questioned that those two women who, allegedly, benefited from contracts in the companies Ineco and Tragsatec are not being investigated. “What would happen if the Supreme Court ordered the return of the money paid in that contract? Does Koldo have to return the money that Jésica Rodríguez received?” he asked, referring to an ex-partner of Ábalos. De la Hoz has also complained about the Supreme Court’s decision to close the investigation without agreeing to the testing of some tests requested by the defense and the return of García’s tapped telephone devices or access to their content. “This is a cause for annulment like a large castle. It goes against effective judicial protection,” the lawyer maintained.
Ábalos denounces an agreement between Aldama and the prosecutor
After García’s lawyer, it has been the turn of Ábalos’s defense, who has adhered to some of the issues raised by his partner and has added new ones. Lawyer Marino Turiel considers that the case should be declared null, among other reasons, because it is largely “based” on the statement of a “co-investigated”, in reference to the commissioner Aldama, who has benefited from a reduction in the request for sentences for collaborating with justice – the accusations ask for 7 years compared to the 30 that they claim for Ábalos and García. The lawyer has revealed that there is an agreement between Aldama’s defense and the Prosecutor’s Office that has not been officially explained, which, he assures, harms the other two defendants. “There is an evident coordination between the Prosecutor’s Office and the defense [de Aldama]. We demand that we be informed of what the agreement was, what it consisted of,” Turiel claimed.
Aldama’s defense and the Prosecutor’s Office have rejected this situation during their turn to speak and have assured that there is “no agreement.” “We agree with the facts, but we disagree regarding the legal-criminal consequence,” Choclán explained in reference to the sentence proposed for the accusations, which the lawyer asks to reduce. In the same sense, the prosecutor has emphasized that there is no agreement “neither comprehensive nor total nor partial.” “There is a statement from Aldama that was not induced by the Prosecutor’s Office. When he wanted to testify, his lawyer asked, Aldama answered and the Prosecutor’s Office found out in that same act what was being said,” Luzón stated, invoking the businessman’s statement in the National Court, in November 2024, in which he incriminated himself.
The former minister’s lawyer has also stressed that the Civil Guard began investigating him before the case reached the Supreme Court and Congress lifted the parliamentary immunity that he then enjoyed as a deputy. The anti-corruption prosecutor has denied that there was a “clandestine investigation.” “There is no action that is directed against Ábalos, the proceedings were against the defendants in that procedure [Koldo García y Aldama, entre otros]. There were entries and records and telephone interventions that revealed the involvement of Ábalos and determined the need to submit the reasoned statement” to the Supreme Court to ask it to investigate the then deputy, he recalled.
Likewise, the prosecutor has denied that a “selection” of those investigated has been carried out, while defending that “equality of arms” between accusations and defenses has been guaranteed because everyone has had access to the material that supports the case.
Recusal of several judges
Another unexpected movement has been the request by García’s defense to remove five of the seven judges that make up the court. To Julián Sánchez Melgar, considering that he has a “manifest affinity with one of the parties” because the PP appointed him attorney general of the State in 2017 and the political party not only exercises the popular accusation but also leads it. He has also challenged Andrés Martínez Arrieta, Manuel Marchena, Andrés Palomo and Eduardo de Porres, four of the five judges who agreed to open a case against Ábalos, in November 2024, estimating that “they already have a trial formed.”
The judges, who have retired to deliberate, have rejected this string of challenges because they were raised out of time. Martínez Arrieta, who presides over the court, has specified that the defenses are only in a position to challenge Susana Polo, who joined the court this Thursday.
Shortly before the preliminary hearing began, the Criminal Chamber announced that Vicente Magro would be replaced by Polo due to the magistrate’s workload. Magro himself joined the court on the eve of the preliminary hearing to replace . Polo’s entry returns to the court a certain balance between progressive and conservative sensibilities, which had been lost in favor of the latter with the departure of Ferrer and the emergence of Magro. However, legal sources consulted by EL PAÍS indicate that in the face of this trial there is, in principle, no division of opinions within the court, as occurred in the last trial held in the Supreme Court, which convicted the then State Attorney General, Álvaro García Ortiz, for revealing secrets.
Furthermore, regarding the request for new evidence, the defense of the former ministerial advisor has demanded a confrontation between García and Aldama and that both undergo the polygraph test. The defense of the alleged achiever of the plot has been categorically opposed.
The Supreme Court prevents Cerdán from attending the preview
Also in the extremesthe court has answered the request of the defense of the former Secretary of Organization of the PSOE Santos Cerdán to participate in this hearing. The Supreme Court has limited itself to reporting that it denies it. Cerdán is not accused in the mask case, but the defense alleged that in this session they will examine “essential aspects of the procedure” in which alleged irregularities in the awarding of public works are investigated, something for which he is accused. The investigations began in the Supreme Court but the high court referred them to the National Court after Ábalos resigned from his seat as a deputy in Congress.
Cerdán also emphasized that those decisions that are made now in the caso maskswhen adopted by the Supreme Court, they cannot be appealed. “Paradoxically, essential aspects of this unprecedented defense will have been definitively resolved,” the lawyers lamented.
