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The Barcelona judge investigating the espionage against Catalan president Pere Aragonès using Pegasus spyware has refused to close the inquiry in which he has called the former director of Spain's National Intelligence Centre (CNI), Paz Esteban, despite a request from the Spanish state solicitors, who are representing the ex-spy chief. The judge, Santiago García García, ruled out shelving the case without seeking the views of the public prosecutor and of Aragonès's defence lawyer, Andreu Van den Eynde, legal sources have told And specifically, the judge wants to clarify whether the CNI spied on Aragonès without legal permission, as the Catalan Republican Left (ERC) party maintains. Aragonès's defence has provided an expert report on his mobile phone to the court - parallel to the major CatalanGate report, carried out by the Canadian group Citizen Lab - and this new analysis asserts that Aragonès's phone was infected since at least 2018, when he first became vice-president of Catalonia. For its part, the CNI has claimed that it had judicial authorization to spy on him between 2019 and 2020. The question, though, is what the situation was in 2018; this is the unknown that the investigation is now trying to clarify.

Paz Esteban testified as a person under investigation in this case at the end of January, through a video conference from Madrid. She did not, however, say anything, because she chose not to testify, appealing to Spain's official secrets act, which governs the CNI's actions, and asserting that the Spanish government did not give her explicit authorization to make statements. A few days before her appearance, the Spanish cabinet declassified the resolutions of Pablo Lucas, the Supreme Court judge responsible for granting permission for CNI espionage actions, and the person who authorized the spying on Aragonès from 2019 on. ERC complains that the resolutions given to the court have been censored and that it is not possible to understand all of the text. One claim made in the resolutions indicates that Aragonès was spied on because he was considered one of the leaders of the mobilizations by the Committees for the Defence of the Republic (CDR) protest groups. "The request [to spy on him] is not due to his status as vice-president of the Generalitat, but because of the task of directing and coordinating the activities of the CDRs," the CNI asserted in its request. It is not known whether the CNI gave any evidence of this claim to the Supreme Court judge who allowed the spyware hacking of Aragonès's mobile phone from July 2019 to April 2020.

An extension and a police expert

As well, the specialist Spanish prosecutor in IT-related crime, Roberto Valverde, responded affirmatively to the judge's inquiry as to whether the investigation should be extended by another six months. The prosecutor considers that it is necessary to clarify the scope of the interference in the mobile phone of president Aragonès, and for this reason insists that an official analysis, commissioned by the court, must be carried out, apart from the one by the espionage victim. Judge García is considering entrusting this to the Mossos d'Esquadra's specialized IT unit, which has carried out the rest of the expert reports on pro-independence Pegasus victims, whose cases are spread over several different courts in Barcelona.

The judge in the Aragonès case is the only one investigating Pegasus who has included the ex-director of the CNI in his investigation, while other Barcelona judges - those following up complaints by those affected from the ERC and CUP parties and the Òmnium and ANC civil groups - have ruled out calling Esteban for now.

The espionage victims also laid complaints against the Israeli company NSO, owner of Pegasus software. The European and international legal processes to get the company to testify before a court, attempted in Israel and Luxembourg, have not functioned so far. Nor has the CNI responded to questions on the purchase of this spyware and its use in Spain. The judge in the Aragonès case also requested information from Spain's Court of Accounts about the public spending to acquire the Israeli software.

The crimes being investigated

The lawyer Andreu Van den Eynde has insisted, in different documents presented to the court, and against the opinion of the state solicitor, that not only the violation of privacy against president Aragonès is to be investigated, but also his "illegal espionage". In addition, he emphasizes that the expert report commissioned by ERC detected two infections on his mobile phone, especially in 2020, but this does not mean that the issues to be investigated are limited to these two findings.

"Between July 2018 and March 2020 someone (presumably the CNI) activated one or more attacks with Pegasus on my client's mobile phone, but the criminal illegal actions cannot be limited to these crimes of intrusion, and in fact, it is the judge who has to investigate whether further infections occurred and what the reason for them was (for example, if the victim's information was accessed or exploited, or if the infection extended to other devices)", explains Aragonès's lawyer, in arguments against the limitation of the investigation claimed by the state solicitor.

In this regard, the lawyer asserts that the espionage against Aragonès was authorized by the Supreme Court judge responsible for CNI permissions. "And if this is so," he adds, "it is obvious that just one infection was not what was authorized, but rather, an infection to access information for a period of time". And it is on this that he demands clarification.

He also rejects that the request for a CNI explanation could be considered a prospective investigation. "[The centre] is accused of having decided or contributed to the interception of the communications and access to protected personal information of Pere Aragonès through the use of spyware or similar techniques without respecting the law in force or the legal limits that allow or justify it", reiterates Van den Eynde.

"What the investigation must find out", concludes the lawyer, "is whether the CNI illegally investigated Pere Aragonès through the use of Pegasus, either in the terminal from which computer evidence was obtained or by espionage targeting the SIM card or via another device (tablet or computer) or even if some other monitoring system was used, since there are different types of software that allow this”.