The case of Sito Miñanco or how listening to prisoners without a court order has divided the Constitutional Court for decades

Sito Miñanco is one of the proper names of smuggling and drug trafficking in our country. He first set foot in prison in 1983 and since then has received several convictions for drug trafficking totaling dozens of years in prison. Five years ago he was again under the scrutiny of the National High Court, when investigators detected that he could be monitoring and directing the arrival of several tons of cocaine in Spain, transported in several ships. Shortly after obtaining semi-freedom.

Imprisoned in the Madrid prison of Estremera, the director of the penitentiary center decided a few days before New Year’s Eve 2020 that he was going to maintain the intervention of his communications for six months, until June 28, 2021. The reasons were the seriousness of the crimes of which he was accused, the suspicion that his communications with family and friends “could be used fraudulently” and his “criminal capacity”. In short, that the Cambadés narco could continue directing cocaine trafficking from the cell and even endanger the security of the prison.

The decision to control their calls and letters passed through the hands of the prison surveillance court, which approved the ‘punctures’ on May 18, 2021, a month and 10 days before the intervention ended. The National Court confirmed the justification for the measure in the summer of that year and gave a practical example to support its decision: on December 20, 2020, Sito Miñanco was caught with a notebook with notes entering the prison parlor “to celebrate a communication that the inmate knew was going to be intervened, ”said the National Court.

One of the sections of the Constitutional Court formed by three magistrates, although with one of them against, understood that the claim of the historical Galician narco did not even deserve to pass the first filter of admission for processing. In the first place, because the National High Court itself subsequently annulled a later extension of the control of Miñanco’s communications. In the second place, because the sentences in this sense are piled up in the files of the Constitutional Court. “This section finds no reason to modify a well-established doctrine,” the resolution said.

ETA members, GRAPO and common criminals

The Constitutional Court, in fact, has a very varied collection of resolutions issued since the 1990s in which it gives the go-ahead for a prison to intervene in a prisoner’s communications and then for a prison surveillance judge to supervise the measure. It did so, for example, in 1994 when the Alcalá prison tapped the communications of GRAPO Jesús Cela Seoane. Also in the following years when the Cantabrian prison of El Dueso did the same with what was then considered the most dangerous prisoner in the country, Juan Redondo Fernandez. And the same decision was made by the judges when the Herrera de la Mancha prison seized the communications of ETA members José Manuel Arzallus and Mitxel Turrientes.

The sentence in the case of Sito Miñanco has not been unanimous and neither were some of the resolutions on which the majority of the section relies to reject the appeals of the prisoners. Several of them have particular votes that invited, in some cases, to review the Constitutional doctrine on this matter.

Judges Julio González, Carles Viver and Tomás Vives raised objections in the case of a prisoner in the Cantabrian prison of El Dueso in 1997. These three magistrates explicitly asked themselves several questions in their dissenting opinion: “Is there not the possibility that the violations of rights by the Administration do not obtain any reparation?”, they reasoned in their ruling.

This dissenting opinion, for example, focused on the fact that judges must study whether the violation of the prisoner’s rights occurs, if it exists, from the very decision of the prison to intervene in communications, not a posteriori. They also criticized the fact that in this case all the decisions of the different prisons through which the prisoner had passed were treated in a unitary manner: “This doctrine should have been brought to the case, to confirm it, to specify it under the specific circumstances or even to modulate it. or review it by raising the issue in plenary”, said the dissenting votes.

There was also controversy in the case of a prisoner in the Ocaña prison whose communications were tapped for his participation in a hostage-taking riot, for having escaped several times and for having generated several disturbances of order within the prison. Most of the Constitutional annulled the measure for lack of motivation and one of the magistrates, Pedro Cruz, understood that the Cuenca prison had more than enough reasons to intervene in his communications. “What fundamentally matters is that the reason itself exists, as well as that it is sufficiently externalized,” said this magistrate.

The right to secrecy of communications

Baltasar Garzón was expelled from the judiciary and sentenced for prevarication after ordering the interception of the communications of several leaders of the Gürtel case who, as he suspected, were still running the organization from the Soto del Real prison in Madrid. In the car that cost him the toga, Garzón used the Penitentiary Law to be able to listen to the conversations that Correa and his men had with his defense lawyers. In the sentence that convicted him of prevarication and removed him from the judicial career, the Supreme Court specified that in his case what had been “profoundly” violated was the right of defense of the accused for launching an unjustified procedure in the face of the “non-existence of of clues”.

The latest controversy of the Constitutional Court regarding this possibility of intercepting a prisoner’s communications has arisen around another fundamental right: the secrecy of communications. One of the magistrates who came to the plenary in the last renewal, the progressive Ramón Sáez, has raised a dissenting opinion in which he criticizes the fact that Sito Miñanco’s appeal has not even passed the first filter of admission for processing.

Sáez acknowledges that the Constitutional Court “has ruled on numerous occasions” on this matter, but not from the point of view of the constitutional right to secrecy of communications that the Magna Carta includes in article 18.3 of the text. “There are reasons that support this possible contradiction with art. 18.3 CE” and it would have been necessary, says this magistrate from the National High Court, to at least examine the merits of the matter.

This article, recalls Sáez, literally says that the secrecy of communications is guaranteed “unless a court ruling” and in these cases the first step is taken by the prison management, although later the process may be placed in the hands of the prison surveillance judge. . It can only be done by the administration in very exceptional situations and it is accepted that the judicial control is done later. But this is the norm in the penitentiary field, denounces this magistrate.

“The exception becomes the rule, and it does so without any condition alluding to the impossibility of waiting for judicial authorization and with the mere requirement of accountability to the judge, without even establishing a strict and immediate judicial control,” explains the magistrate. There is, therefore, an “incompatibility” between the Penitentiary Law and the Constitution and calls for an earlier intervention of the Justice: “The reason for my disagreement with the decision of the majority is that this analysis should be the subject of deliberation and decision in judgment”. Having admitted the appeal for processing, he regrets, “would have made it possible to analyze the admissibility of the penitentiary practice of agreeing to interfere in the right of a preventive prisoner for long periods of time on the basis of imprecise, and not even circumstantially accredited, risks.”