Nineteen days after knowing the meaning of the ruling, the Supreme Court yesterday made public the sentence condemning the State Attorney General, Álvaro García Ortiz, for “the crime of disclosing confidential data.” It was the first time in democratic history that a public prosecutor sat on the bench, and he did so due to the alleged leak in a media of an email sent by the defense of Alberto González Amador, associate of the president of the Community of Madrid, in which he admitted two tax crimes and proposed a deal to the prosecutor’s office. The extraordinary nature of the case and its institutional relevance required a judicial decision that provides solidity, certainty and consensus: an unassailable decision. It’s not.
The majority of the room considers that García Ortiz disclosed to Cadena SER the email sent by González Amador’s lawyer. Furthermore, the information note subsequently published by the Public Prosecutor’s Office to deny the deception launched by Isabel Díaz Ayuso’s chief of staff constitutes a criminal act because the State Attorney General had a “reinforced duty of secrecy”. The court affirms that it was he, “or a person in his immediate environment and with his knowledge”, who distributed the email. But more than a certainty, this formulation reflects a hypothesis. This is what judges Susana Polo and Ana Ferrer underline, authors of a forceful dissenting opinion which harshly contradicts their five colleagues present in the courtroom and underlines the evidential weakness of the conviction with a devastating sentence: “The conclusions drawn imply a violation of the right to the presumption of innocence”.
One of the main supports of the incrimination is a four-second call collected by the UCO between the journalist Miguel Ángel Campos and García Ortiz. The Attorney General’s version, according to which he never picked up the telephone, is not refuted by any evidence, although the duration is consistent with an answering machine ringing, as indicated in the dissenting opinion. Furthermore, at that time, he still did not have the email for which he was blamed for the leak. Hence the conclusion of Polo and Ferrer: the sentence is decided “among several equally possible options, for the most detrimental to Mr. García Ortiz”.
Campos flatly denied at trial that the attorney general leaked his email. Journalists can rely on professional secrecy regarding their sources, but they cannot lie. They declare under oath, with the criminal responsibilities that this implies. If the prosecutor disclosed a leak and the journalist denied it, the court should have inferred the testimony against the journalist. He didn’t do it. This inconsistency further erodes the logic of a belief that is based on conjecture.
“There is no other reasonable explanation that allows us to doubt that the leak took place within the state attorney general’s office and that the prosecutor himself participated directly in it,” the ruling said. The dissenting judges say yes. In any case, criminal law must not rely on presumptions nor elevate what is only one of the possible options to the level of judicial security. And, in case of doubt, the procedural principle must be applied in dubio pro reo.
The other part of the sentence, the information note, also raises doubts. The dissenting vote argues that it is not a crime because everything in it was already in the public domain, and Article 417 of the Penal Code requires “revealing” secrets or information. This vote also affects the fact that the condemnatory interpretation contradicts the High Court’s own doctrine.
A question of such importance and which has generated so much division deserved a calm deliberation – it was limited to one week – and, above all, a sentence based on irrefutable evidence. This is why courtroom unanimity was so important: to protect the legitimacy of the resolution and the credibility of the court. It wasn’t like that. The case will probably end up before the Constitutional Court, which will have to decide, in the event of an appeal, whether the fundamental rights of the former state attorney general have been respected or, on the contrary, have been violated. This is part of the system of guarantees of our State of law. Even in the face of disagreements with one court or another, everyone involved in a dispute that has strained the Spanish justice system would do well to remember this.
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