The number two of the prosecutor’s office accuses the Supreme Court of having “created a type of crime” to condemn García Ortiz

In a letter to which EL ESPAÑOL had access, the number two of the General Prosecutor’s Office criticizes the Criminal Chamber for having “created a criminal type” to condemn García Ortiz.

According to him, the offense of revealing secrets which cost the former attorney general his job “does not contemplate the behavior of the civil servant who reveals (already) public data” broadcast “by a plurality of media”.

Sánchez Conde “approves” the judges’ particular vote Ana Ferrer And Suzanne Polo on the credibility of the testimony of several journalists who claimed at the trial to have had access, before García Ortiz, to the email leaked to Be on chain “At least” the former attorney general was convicted.

This is an “e-mail” in which the lawyer of Alberto Gonzalez Amadorpartner of the Madrid president, Isabel Diaz Ayusoadmitted that the businessman had committed two crimes against the public treasury.

The email was sent on February 2, 2024 to the public prosecutor’s office for economic crimes with a compliance proposal which proposed a reduced sentence for González Amador and released him from the trial in exchange for admitting tax fraud.

“The sentence exempts, without any explanation, from the analysis of the testimony of numerous defense witnesses,” said the prosecutor, referring to the journalists, “and from the fact that The sixth published (…) a few hours before the Be on chain a news item which reported the information contained in the email of February 2 (…) before García Ortiz received it”, declares the prosecutor in the letter opening the trial. incident of nullity.

Also consider that “There is no explanation for its omission” that the email of February 2 “was also forwarded to the Attorney General of the Community of Madrid”, Almudena Lastraand was in the possession of the prosecutor of the González Amador case, the dean of the economic crimes section of the Madrid Public Prosecutor’s Office “and the public prosecutor’s office”.

“It was also logically in the power of the defense of González Amador, whose entourage carried out a biased and misleading disclosure of the prosecution’s response to the offer of compliance made by the defense”, he underlines.

Accusing principle

The lieutenant prosecutor of the Supreme Court maintains that the consideration as criminal acts of both the leak of the email of February 2, 2024 and the press release that the prosecution published on March 14 to deny the false information about its actions “constitutes a unprecedented fact which radically disrupts the aim of the processthe alleged act, without the accused having had the opportunity to plead and contradict himself.”

According to Sánchez Conde, “the preparation and publication of the informative note began to be considered criminal because it revealed confidential information that was not known until its publication.”

“When the Prosecutor’s Office was consulted on the said accusation, it alleged and demonstrated that all the information contained in the information note was common knowledge before its publication,” he adds.

When the case was transferred from the Superior Court of Justice of Madrid to the Supreme Court, “the Admission Chamber considered that it was necessary to clarify whether this information (the admission of tax evasion by González Amador’s lawyer) was public before the publication of the information note due to a previous leak made by the State Attorney General.”

“The entire investigation of the case before the Supreme Court and the evidence conducted in plenary session (the trial) had the sole purpose of establishing whether or not the public dissemination of the information, that is to say the email of February 2, 2024 (…), had been carried out by the Attorney General. At no time was this considered a typical fact. the preparation and distribution of an informative note which contained information which was public at the time of its broadcast”, he asserts.

The latter “was never charged and there was no possibility of alleging or contradicting him”.

Principle of legality

The judgment states that the publication of the information note from the Prosecutor’s Office constitutes a disclosure of confidential information, “even if the data contained therein were public knowledge, since the duty of confidentiality of the authority or official would remain, because the act of disclosure of confidential information by the person who is guarantor of the obligation of secrecy is in itself harmful”, summarizes the prosecutor.

The public prosecutor considers that the Chamber extended the application of the criminal type “to conduct which clearly goes beyond the literal content” of the precept, article 417 of the Penal Code.

“The standard contains as a nuclear verb the reveal or what is the same, discover or manifest ignored or secret”, he emphasizes. “And it seems obvious that, when the data was broadcast by the radio networks to a large audience, by television programs and in the written press, these data ceased to be ignored or secret when it becomes public knowledge“.

According to him, the persistence of the duty of confidentiality of the official or authority who obtained said information by reason of his function once it has been exceeded “This may or may not be shared, but the truth is that the legislature does not consider this to constitute the crime. to reveal secrets.

“The criminal offense requires the disclosure of secrets or information that should not be disclosed, but when these secrets or information are public knowledge and are disseminated through a plurality of social media, it is clear that they are no longer secrets and therefore cannot be included in the said criminal offense,” he asserts.

“Considering typical conduct which goes beyond the literal content of the precept, Court creates prohibited type of crime and therefore violates the principle of criminal legality”, he concludes.

Effective legal protection

The document also questions whether García Ortiz should compensate González Amador with 10,000 euros for moral damage since he “had no intervention in the comments and criticisms from which the damages arise”.

He also claims that comments that he is a “tax evader” are protected by freedom of information and expression and must be supported by the private accuser “because he is a person of public importance, being the partner of an important public official accused of tax fraud crimes.”

It also considers that the Chamber unduly imposed on García Ortiz the payment of fees of the private prosecutor’s office since “the request made by him was not the subject of a conviction”. González Amador advocated the conviction of the former attorney general for aggravated disclosure of secrets.

“The judgment is limited to affirming that there is an essential homogeneity (between the accusation and the sentence imposed). But the truth is that none of the requests of the private prosecution have been accepted by the Chamber, therefore, in the face of the apodictic affirmation of the essential homogeneity, a heterogeneity occurs which, according to the jurisprudence of this Chamber, prohibits said automatic imposition of the costs of the private prosecution”, it is indicated.