Judge declines to investigate Zapatero for embezzlement over Saudi jewels

Judge declines to open an embezzlement probe

On 6 November, Audiencia Nacional judge José Luis Calama rejected a request from the Anti-Corruption Prosecutor's Office to investigate former Spanish prime minister José Luis Rodríguez Zapatero for embezzlement of public funds. Prosecutors made the request after it emerged that Zapatero had not handed over jewels seized from his office to the State Patrimony office (Patrimonio del Estado). The case forms part of the Plus Ultra investigation that Calama is running.

The National Police's Economic and Fiscal Crime Unit (UDEF) located the jewels in a safe in Zapatero's office. Zapatero has said they were a personal gift from the king of Saudi Arabia during an official visit to Spain in 2007. The prosecutors' position was that, if that account were true, keeping the items could amount to embezzlement of public funds through appropriation.

Calama disagreed. In his order, he held that jewels received because of an office cannot be treated as public assets for that reason alone, and he described the prosecutor's reading as an interpretive construction drawn up after the fact. His reasoning rests on the state of the law at the time of the events, when no legal provision required gifts received by senior officials to be incorporated into public assets.

Why the judge found no offence

The judge noted that no legal provision in force at the time required such gifts to pass automatically into the public patrimony. He placed the change in Law 19/2013 on Transparency, Access to Public Information and Good Governance, which for the first time expressly barred senior officials from accepting gifts beyond social or courtesy customs. That law also required gifts of institutional relevance to join the public patrimony of the relevant administration. Calama said the Code of Good Governance, approved by a Council of Ministers agreement of 18 February 2005, had an ethical character and was a form of institutional self-regulation, but lacked the normative weight needed to establish public ownership of assets.

“possessed an obvious ethical nature and institutional self-regulation, but lacked sufficient normative value to determine public ownership of assets”

The judge went further and argued that treating conduct codes as sources of criminal liability would clash with the principle of legality. He wrote that accepting the opposite would make such codes a basis for prosecution.

“Accepting the contrary would turn codes of conduct or principles of good governance into genuine sources of criminal liability.”

Key dates in the case

The dates that frame the dispute run from the 2005 code to the 2007 visit, the 2013 transparency law and the 6 November orders. Prosecutors had argued that goods received by an authority and destined for the public patrimony fall under criminal doctrine even without an actual cash intake. Calama rejected that reading for the 2007 events, tying the outcome to the legal framework that existed then. The chart below sets out the sequence the judge relied on.

Tax inspections halted

In a second order, Calama halted Tax Agency (Agencia Tributaria) inspection procedures concerning Zapatero, his wife, his two daughters, his partner Julio Martínez Martínez and several companies linked to them. Martínez Martínez is described in the reporting as a partner and considered friend of Zapatero. The Anti-Corruption prosecutors had asked for the embezzlement investigation to be extended, and the judge refused that request in the same set of orders.