Things are getting complicated for Rodríguez Zapatero in the case opened at the National Court. The two Julio Martínezs (the intermediary, a friend—or former friend—of Zapatero, “Little Julio,” and the president of Plus Ultra) have offered to cooperate with the authorities. Many outlets have described the events by saying that “the Julios” have decided to follow the “Aldama route.” And it is true that, given the favorable treatment Víctor de Aldama received from the Supreme Court for his involvement in the Mascarillas corruption plot (a sentence of four and a half years in prison, but exempt from serving time, compared with the nineteen and twenty-four years imposed on Koldo and Ábalos, respectively), they have every incentive to reach a plea agreement, which begins with a confession —even if partial, as in this case— and a willingness to cooperate with the court. Before analyzing how this impacts the Zapatero case, let us take the opportunity to explain a few things about the duty to cooperate with justice and the advantages and drawbacks of plea agreements.
In democratic and rule-of-law states, all citizens have a civic duty — that is, a duty of political morality — and a general duty to cooperate with public authorities in the performance of their functions and, in particular, with the courts in the context of a judicial process. We all have a general interest in the proper functioning of the State, in the courts carrying out their duties well, in discovering the truth of the facts that may be punishable, in respecting everyone’s rights during the process, in punishing the guilty and exonerating the innocent. We hold that general interest and, in a democracy, we also bear, as citizens, a special responsibility that materializes in that civic duty. In non-democratic systems, where there is no self-government and, therefore, no legitimate political authority of the State, we can disregard the proper functioning of the institutions of that State and look only after our private interests and personal convenience. The “every man for himself” attitude may be tolerated there, for we have to contend with authoritarian, illegitimate, and almost always unjust and oppressive laws. But that is not the case when we live in a democracy and the State represents all of us legitimately. Our moral duty — not merely personal or private morality, but civic or political morality — obliges us to contribute to the proper protection and promotion of the public or general interest, that is, to cooperate with it.
“The particular duty to cooperate with the courts is recognized, for example, in Article 118 of the Constitution”
The particular duty to cooperate with the courts is recognized, for example, in Article 118 of the Constitution, which turns that civic or political duty into a legal obligation. The clearest and most radical — though not the only — manifestation of that legal duty to cooperate is the criminalization by the Penal Code of certain specific acts that constitute different violations of that duty, most of them under the label of crimes against the Administration of Justice. These include, for example, perjury by witnesses or experts (Arts. 458-462 CP) or crimes of obstruction of justice, such as unjustified absence (Art. 463 CP), intimidation or coercion of participants (Art. 464.1 CP), post-judicial retaliation (Art. 464.1 CP) or the destruction or concealment of evidence (Art. 465 CP), in addition to other offenses such as concealment (Arts. 451-454 CP), false accusation or denouncement (Arts. 456 and 457 CP), denial of assistance by a public official or authority (Art. 412 CP) and, finally, the omission of the duty to prevent crimes or to promote their prosecution (Art. 450 CP).
All these examples show that the failure to fulfill our civic duty to cooperate with justice, before, during or after a judicial process, can, in certain circumstances, have criminal consequences. But it is important not to interpret this as meaning that our duty to cooperate ends with merely avoiding the commission of such crimes. Let us consider an example. All citizens who find themselves in a position to prevent a crime by legal and reasonable means, not involving an excessive personal risk, have the duty to prevent it. Suppose one day, while walking down the street, we witness an attempted robbery. It is in our power and, therefore, our criminal duty to try to stop that crime from being committed, for example, by warning the potential victim or shouting at the thief. If the crime has already been committed, we have the duty to alert the police, to detain the thief if possible, perhaps with the help of other bystanders, to aid the victim, and, should the police arrest the thief and a criminal investigation begin, to appear to testify in the proceedings if the judge deems it appropriate. All of this can be done with notable reluctance and with the sole aim of avoiding any criminal responsibility on our part. But our civic and legal duty, at least in democratic legal systems, goes far beyond that. We have the duty to inform the police, if they do not already know, that we witnessed the crime or its attempt; we have the duty to help the police and the judge in their investigation, not merely by not concealing or destroying evidence, but by offering any lead or hint that we think might be useful; we have the duty to provide a statement that is not only truthful but complete and well articulated, etc. As said, our constitutional duty to cooperate with the courts does not end with simply refraining from committing any of the crimes mentioned in the previous paragraph.
The enforcement of this civic and legal duty in its penal manifestations has interesting exceptions. An inherent principle of any constitutional state of law, as recognized by Article 24.2 of the Constitution, is the right not to plead guilty and not to testify against oneself, family members, or one’s own client, in the case of defense lawyers. That constitutional right does not exempt from other duties of cooperation, including criminal ones. A defendant in a criminal process cannot destroy evidence, for example. And he cannot refuse to testify against another defendant for a related offense. He would only have the right to refuse if doing so could imply his own confession, total or partial. This right is currently enjoyed by Zapatero, the two Julio Martínezs, and all the others investigated in this case. But, of course, one thing is to have the right not to testify and quite another to have the duty not to do so. It is so much so that, as renowned penal scholars such as Antony Duff have shown, the right not to confess and not to testify against oneself or against other co-defendants in the same case and for the same facts coexists, in reality, with the civic duty to cooperate with justice and even to confess the crimes one has committed. Although fulfilling that duty is not mandatory, precisely because of the explicit exception that the existence of the right entails, the voluntary act of renouncing the exercise of that right remains commendable as a virtuous civic behavior. And to the extent that all that Víctor de Aldama and now the Julios have testified is true, we should at least acknowledge them for that.
“There are as good reasons to recognize the right not to self-incriminate and not to confess as to permit voluntary collaboration and even plea agreements”
There are, in short, good reasons to recognize the right not to self-incriminate and not to confess —primarily to combat police and judicial abuses aimed at forcing such a confession— as there are to permit voluntary collaboration and even plea agreements that grant benefits in the imposed or executed punishment. In addition to enabling the fulfillment of the civic duty, this also ensures that our judicial processes save time and resources and, above all, that fewer guilty parties go unpunished, i.e., that justice is better served. This is especially important when judging offenses where obtaining solid evidence beyond mere indirect indications is more difficult, such as sexual assaults and also various corruption crimes (influence peddling, bribery, prevarication, etc.).
Of course, the act of collaborating with justice can simply be the result of a purely self-interested strategy devised by the accused under the guidance of their counsel, i.e., the opposite of fulfilling the civic duty. But even in that case, which we can reasonably assume to be quite common, we will still obtain the benefits associated with improving justice. Their conduct may no longer be laudable, but it will still make sense to enable collaboration and the plea agreement. However, it happens that the citizen intuition that any benefit obtained by the defendant through a plea agreement creates a small injustice is a correct intuition. The person who has cooperated has nonetheless committed a crime that is now left unpunished or punished with a potentially much lesser penalty, and that latent injustice is the one that becomes especially visible in the Mascarillas case, with the stark contrast of sentences between one defendant and the others. So, even though it remains justified to offer the possibility of cooperation and to reward those who do so, acknowledging the inevitable latent injustice imposes a robust limit when deciding the reward or benefit to be granted. Therefore, judges and prosecutors should exercise extreme care in handling the prerogative to reach settlements with the accused.
There is a second reason for caution. In some countries where plea agreements have been carried to excess, as in the United States with the so-called plea bargaining, where it is estimated that more than 90% of criminal cases are resolved through negotiation and admission of guilt, with corresponding savings of public resources and time, a growing share of cases has been detected in which the defendant who voluntarily pleads guilty and accepts the agreement is, in fact, innocent. It is estimated that it could be as high as 8% of plea bargaining cases. And that implies, of course, a perversion of the justice-cooperation system that fills prisons with innocent people — we are talking about hundreds of thousands — and that generates humiliating negotiations completely removed from our democratic rights and our venerable civic duties.
“A deadly combination of four facts explains why an innocent person might want to plead guilty”
Why does this happen? Why would an innocent person want to plead guilty? Well, due to a deadly combination of four facts: that the penalties expected in a penal system like the United States are very high; that the benefit obtained through plea bargaining is relatively substantial; that the justice system is slow and, very often, the accused must wait for trial under a pretrial detention regime; and that, too often, the criminal process yields arbitrary or unpredictable results, with a high percentage of convictions of the innocent, even among those who have pleaded innocence.
Although not all of these factors are present in the Spanish system, at least not to the same extent, they serve as a warning to navigators. And if we focus on the first two, they point to a present and real risk that could open up or grow precisely after the Aldama precedent: if the benefit obtained is too large and the possible sentence too high, it is completely rational, from a strictly selfish standpoint, to choose “collaborate with justice”, and that is what defense lawyers will recommend. It may be rational even if the accused is innocent, especially if other accused individuals might end up paying the price. That risk would not only impede the virtuous fulfillment of our civic duties and would generate latent injustice, but would pervert the entire system of plea agreements and could even end up convicting innocent people, which is always the greatest relative evil a criminal justice system in a democratic state of law must avoid.
Let us return now to the Zapatero case. Without yet knowing all the evidentiary elements that may have already been identified or that may be identified in the coming months by Judge Calama, the investigating judge of this case at the National Court, it is evident that the Julios’ confessions contribute even more to the impression that the uncovered corruption plot was real and that President Rodríguez Zapatero participated in it and is, therefore, guilty. In combination with other evidentiary elements —never by themselves— they could prove decisive in justifying the opening of a trial and a possible conviction. Perhaps the cooperation with justice that the Julios are embracing indicates a sincere attempt to fulfill their civic duty, compatible, of course, to some extent, with a personal strategic incentive, and may be worthy of praise. Perhaps all they declare is true and will thus help to clarify the truth, which is, in general, of interest to all of us, except the guilty.
“The Aldama precedent can make not only possible but much less unlikely that false statements are made and that an innocent person can be convicted”
But beware of drawing celebratory conclusions too quickly. First, because, even if Zapatero is guilty, the collaboration with justice that ends in a plea agreement and the obtaining of a benefit or reward will always generate a latent injustice. And second, because the Aldama precedent may make not only possible, but far less unlikely that false statements are made and that an innocent person could be convicted. And I say this not so much with regard to Zapatero himself, unfortunately, as in broader terms. If the National Court decides to follow the dangerous path opened by the Supreme Court with a reckless and even imprudent balance in granting benefits, we will be entering a perversion of the criminal justice system and of the very principles of the rule-of-law state from which it will be hard to recover.
