If Judge Mercedes Alaya has solid evidence that three officials at the Andalusian department of finance committed crimes that might have been detrimental to the public coffers, then her decision last week to set civil liability bonds in the so-called ERE case may make sense. Yet the judge is pushing the limits of her investigative role by justifying these measures on the “certain probability” that all three of them will be found guilty.
Among the officials is Magdalena Álvarez, a former public works minister in the previous Socialist government, former Andalusian finance commissioner, and currently vice president of the European Investment Bank. Alaya is making her decisions on a basis that infringes on the principle of presuming people innocent until proven guilty. The role of the investigative judge is not to pass judgment or push trials forward, but to actively investigate crimes while taking proper care to ensure that the rights of the targets of the investigation are guaranteed.
It is also surprising that Alaya waited nine months to set this bond, even though Álvarez has been an official target since last summer. Alaya appears to be taking several preventive measures based on a decision that has not yet been confirmed in the courts.
The judge is getting closer to considering all budget-related procedures by the government a crime
Besides the formal problems this raises, it is worth looking at the crux of the matter. The type of criminal evidence invoked by the judge does not involve the actual appropriation of money, but the claim that Magdalena Álvarez and her team designed the mechanism to create the labor adjustment plan fund, which handed out millions of euros to companies and individuals who were not eligible for the aid. The judge considers this to be the key that enabled all this public money to be given out without the necessary oversight. If true, it would certainly be a serious matter.
But if the method in question was implemented between 2000 and 2011, as the judge says, then it makes no sense for her to reserve her harshest treatment for the team who headed the department of finance only until 2004. She did not take any steps against Álvarez’s successors in the post, including former Andalusian leader José Antonio Griñán, or individuals who held positions that had a lot to do with administering the ERE fund but who now enjoy parliamentary immunity and can only be tried by the Supreme Court. If she feels they are involved, then Alaya is legally bound to pass the case over to this higher court, instead of giving the impression that she has specifically targeted Magdalena Álvarez.
The judge is getting closer to considering all budget-related procedures by the Andalusian government a crime, and holding that the Andalusian assembly members passed budgets simply because they are not well-versed on such matters – as Alaya suggests in her writ of March 11, which says that the complexity of the budgetary jargon “is only accessible to experts.” The time has come for the justice system to provide well-founded definitions of what constitutes a crime and what does not, and to set the pertinent liability in a matter that is as objectively serious as the channeling of public money for other ends than those it was meant for.