The judge investigating the entry of the Polisario Front leader Brahim Gali in Spain has refused to close the case, as requested by the State Attorney's Office, and questions the main arguments he wields, among them that the Schengen Code for the control of European borders was complied with, as RTVE has been able to confirm.
The head of the Court of Instruction Number 7 of Zaragoza, Rafael Lasala, has decided in an order, to which Europa Press and Efe have had access, to keep open the case for Gali's entry into Spain last April, a procedure in which the former Minister of Foreign Affairs Arancha González Laya is investigated for alleged crimes of prevarication, false documentation and concealment.
The judge sees that there are no reasons to file the case, understanding that "an anticipated trial is being requested, which would only proceed in the case that the material 'fact' does not exist". "Something that is not the case since even the requesting party recognizes that it has existed", he recalls.
The magistrate that the interpretation made by the State Attorney's Office on compliance with the Schengen code for border crossings in exceptional conditions "is very partial". In addition, he argues that "a frontal violation" of the provisions of this regulation has been committed "having sought its non-application" by the authorities involved.
Judge Lasala responds in this way to the brief that the State Attorney filed on September 17 and in which he requested the dismissal of the case for the former Chief of Staff of the Ministry of Foreign Affairs Camilo Villarino as well as the closing of the case.
The judge sees a "total violation" of the law
Lasala warns that the Schengen Code exempts persons or groups from entering through the borders in the case of the existence of a "special need", provided, moreover, that they are in possession of the authorizations required by domestic law in order to avoid a possible "conflict" with the interests of public order or internal security of the member states. It adds that this assumption has not been fulfilled since the Code warns that the exemptions are for the "occasional crossing" of the borders when it takes place outside the border crossings and the established hours. The order emphasizes in this respect that the Zaragoza airport is a border crossing point that is open at all times, so it considers that the precept put forward by the State Attorney's Office is not applicable.
He also argues that Schengen requires that the member state that authorizes the entry of a Spaniard from a third country must inform the rest of the member countries, "something that not only has not been done but it has been recognized that it was deliberately not wanted to be done, so that the entry would be 'discreet'". The magistrate admits, on the other hand, that the Border Regulation exempts the stamping of the passport, but then warns that "what is being judged here is whether it was shown and controlled, not whether it was stamped".
In its analysis of the referred regulation applied to the case, it emphasizes that the exemption refers to the stamping of travel documents of heads of state or personalities, and then highlights that none of these circumstances are given in relation to Gali since the Sahrawi Arab Democratic Republic is not recognized by any of the states of the Schengen Area.
He considers of "minor importance" the provision allowing entry on "humanitarian grounds", which, he adds, was issued on the occasion of the pandemic for the benefit of those who met the other requirements and that, in any case, does not affect residents in Algeria. In the judge's opinion, there are "reasons" up to the present moment of the investigation to believe that it was not a "bad or difficult" interpretation that was made of this precept but a "frontal violation" by having attempted its non-application, "which is why what happened is questioned in the criminal court and not in another jurisdiction".
In his order, the instructor, despite considering the previous reason "sufficient" to reject the dismissal, wonders about the crime of concealment raised by the accusations and recalls that the case also investigates whether the "discreet" entry of Gali could have the purpose of avoiding judicial problems, an allusion made in relation to the case that the Polisario leader had open at that time in the National Court. "Although there are no precautionary measures against her - he argues in relation to the non-existence of an international arrest warrant against Gali - the authorities have to inform the competent courts of the location of the subject under investigation".
In addition, in relation to the crime of forgery investigated, the magistrate warns that it could affect not only those who had taken advantage of it, but also "those who had consented to the use of any falsified documentation". In this sense, he qualifies as an "excuse" the fact that the Polisario leader had been admitted to the hospital of Logroño with a false identity with the "pretext" of preserving intimate data about his health, understanding that it "offends" the health and administrative professionals of the center.
The instruction of the case will continue next Monday with the taking of testimony as witnesses of the heads of the Cabinet of the former Vice President of the Government Carmen Calvo and the current Minister of the Interior in order to determine whether their superiors knew in advance the entry of Gali in Spain.
Laya testified last week before the judge
The former Minister of Foreign Affairs, Arancha Gonzalez Laya, testified last week before the judge, to answer for the entry into Spain of the Polisario leader and invoked the law of official secrets.
The leader of the Polisario Front arrived last April 18 in an Algerian medical plane at the Zaragoza Air Base, without passing border controls or documentation. From there he left in an ambulance to the San Pedro Hospital in Logroño and was admitted to the health center under the name of Mohamed Benbatouche.
In the early morning of June 2, he left Spain for Algeria, after appearing before Judge Santiago Pedraz for several complaints filed against him for alleged human rights violations in the Saharawi refugee camps in Tindouf. The investigator of the Audiencia Nacional did not order any precautionary measure as he did not see any evidence of a crime against Ghali.