The Chamber considers that the minimum requirements required by law to agree to the interference with the secrecy of communications were not met.
The Provincial Court of Madrid has acquitted the dancer Rafael Amargo of a crime against public health of which he had been accused by the Madrid Prosecutor’s Office in relation to the sale of drugs in his former apartment in Malasaña in the capital when the telephone interventions were declared null and void. .
This is stated in a ruling, to which Europa Press had access, in which the magistrates exonerated the dancer, his former producer Eduardo de Santos and another person tried for the same facts.
Rafael has been on provisional release since April 12, the date on which the trial was heard for sentencing. This measure was agreed upon at the request of the Madrid Prosecutor’s Office to ensure the holding of the trial after breaking the imposed measures of signing before the court.
The acquittal takes place after the Chamber considers that the minimum requirements required by law to agree to the interference with the confidentiality of communications were not met, which is why it declares null and void the intervention of the telephones of those investigated requested by the Police and agreed upon. by the court of instruction.
The magistrates considered that the objective basis that justified the request for telephone wiretapping was “insufficient to consider that the measure was proportionate based on the elements on which the agents based their suspicion of committing a crime against public health.”
This question was raised by the defense of those investigated, including the lawyer Marcos García Montes, at the beginning of the oral hearing and which the court has considered pertinent.
TECHNOLOGICAL RESEARCH MEASURES
In extensive reasoning, the Chamber considers that the initial order of telephone wiretaps, dated July 1, 2020, offered a statement of facts based on the investigation into a criminal group that would be dedicated to the distribution of narcotic substances, mainly methamphetamine, within the Central District of Madrid.
“Substances that it would previously have been receiving from different distributors located in this province, anticipating that technological research measures would be requested “due to the degree of professionalism and specialization of the people investigated,” he points out.
“The resolution granting the police request,” says the ruling, “was simply accepted by the investigating judge in the sense that he did not consider the sufficiency of the data, which means that, de facto, the weighting reflected in the judicial decision was the one made by the agents in their request,” the order adds.
According to the magistrates, in the present case “objective elements are provided, but not whether they were sufficient to reach such a conclusion, as the investigation lacks data on the relationships between each other, between Rafael Amargo and the alleged victims.” “mules” who would work for him, who lived in each home or if they were there at the time of the events.
To the disproportionality of this measure, which is of a general nature, another circumstance was added at the time, such as adding those of Rafael’s wife to the list of tapped phones.
It was done, according to the court, with the excuse that drug traffickers usually use the telephone devices of other people in their family nucleus for their illicit activities, assumptions that do not appear in any police report, since in no report does it say that the wife Rafael G. used her telephones to transmit, on behalf of her husband, information related to criminal activity, nor does it even indicate that she could collaborate with him in carrying out such activity or benefit from it. The suspicion that the wife’s phones were used by her husband does not seem, therefore, to be remotely founded.
EXCLUSION OF EVIDENTIAL MATERIAL
Having declared the telephone interception order null and void, the ruling elaborates on the presumed “unlawful connection” between what was declared null and the subsequent proceedings and concludes that, “from both a causal and legal or normative point of view, the authorization of entry and search and what was found in the homes must also be affected by the nullity of the telephone interventions”.
Therefore, the evidentiary material derived from the home search must be excluded from the assessment.” The resolution adds that “there are no independent pieces of evidence that allow proving the possession of a substance preordained for trafficking by two defendants or their collaboration with Rafael G. in drug trafficking”.
In fact, the judges doubt that even with the evaluation of the excluded evidentiary material, consisting of the telephone conversations, the existence of that association and organization between those investigated for drug trafficking could have been concluded, as was maintained in the indictment.
Nor did the hypothesis pointed out by the researchers of the existence of any attempt to finance artistic productions in which Jesús Rafael and Juan Eduardo participated with the income derived from that alleged common trafficking activity or, in short, the existence of a common crime of illicit drug trafficking.
BLUART OF FLAMENCO
In his statement, the artist stated that he had no need, “thank God”, to dedicate himself “to anything other than the performing arts”, recalling that he has been the “flag and bastion in Spain” of flamenco and comparing himself to Lola Flores. for his “generosity.”
“I have been silent for three and a half years and I am happy to be with you. I am going to tell the truth and the whole truth about this provoked crime,” he said.
Rafael Amargo was facing nine years in prison for a crime against public health in an amount of notable importance, as was his producer Eduardo de Santos when the prosecutor maintained his requests for conviction.
In the reports, lawyer Marcos García Montes requested the free acquittal of Amargo and, in the event that he was convicted, that he be given a complete defense for drug addiction and be subjected to outpatient treatment.
The telephone interventions and the testimony of the National Police investigators were the main evidence that the prosecutor has to support her accusation. The bailaor’s lawyers tried to challenge these wiretaps, an issue on which the court will rule in the ruling.
Investigators and the Madrid Prosecutor’s Office maintain that Rafael Amargo and Eduardo made “joint purchases” intended to finance the work of ‘Yerma’, a claim that the defendants deny since at least 100,000 euros were needed.
In her report, the prosecutor stated that the movement of people in Rafael’s apartment, the second right of number 4 La Palma Street, at the time of the events investigated was proven by the testimony of the National Police agents.
The representative of the Public Prosecutor’s Office mentioned the wiretaps intervened between August and November 2020 in which there was talk of quantities of drugs that exceed self-consumption and that determine the notorious importance – punishable by between 6 to 9 years in prison – citing a conversation in which a person asks for about 500 pills and another in which Rafael states that he wants a kilo of methamphetamine.
