Supreme Court ruling in the “Garzón 1” (or wire-tapping of lawyers) case
In its ruling of February 9th, the Spanish Supreme Court (SC) convicted judge Garzón on a charge of «prevaricación» (wilful delivery of an unfair decision), barring him from the bench for eleven years and thereby effectively putting an end to his career.
I shall not enter into details of the background to this case – i.e. whether, from a legislative-political standpoint, the recording of conversations between the accused and their lawyers can be justified – as this question has been magnificently analysed by Isaac Ibáñez in an earlier post. In my view, suffice it to say that, in any country claiming to abide by the rule of law, this is simply not done. I am therefore rather surprised when some so-called “progressive” media outlets attempt to justify it on the grounds that the accused were clearly corrupt… Heavens above! If they were charged with murder, it wouldn’t matter. They are allegedly corrupt, but even murderers have had the chance to be defended with all due safeguards. That is what democracy is all about: not simply that, whenever the doorbell rings in the early hours, it will be the milkman; but also that, when you are prosecuted, you will have more opportunities to defend yourself than Josef K had.
Yet this is not the most interesting thing about this ruling, which you may read in full (in Spanish) here. What is interesting are the arguments put forward by the SC to convict Garzón. In order to examine them, readers should really start by reading these two articles. The first is Article 51.2 of the Spanish General Penitentiary Law (GPL), worded as follows:
“2. Conversations between inmates and the counsel for the defence or the lawyer expressly summoned to deal with criminal matters, as well as with the barristers representing them, shall be held on appropriate premises and may not be suspended or intercepted, save on the orders of the legal authorities and in cases of terrorism.”
The second is Article 446 of the Spanish Penal Code, which states that:
“Any Judge or Magistrate who should knowingly hand down an unfair judgement or sentence shall be punished: (…) With a penalty of twelve to twenty-four months, as well as special disqualification from holding any public employment or post for a period of ten to twenty years, whenever they should hand down any other unfair judgement or sentence.”
We should now briefly review the fundamental facts of this case. During the investigative phase of the Gürtel case (involving alleged payments to politicians in order to win contracts), in keeping with Art. 51.2 of the GPL and fearing that the lawyers might be also implicated in the corruption network, judge Garzón issued an order on February 19th 2009 for the recording of conversations between the three accused being held in prison and their lawyers. This decision was based on an interpretation of the said article which, according to the judge, could authorise listening in on prisoners’ conversations in two situations: in terrorism crimes, without the intervention of the courts, and in all other cases with a court order. In other words, the final clause of Art. 51 established alternative, not cumulative, requirements. Because, if they were cumulative, such eavesdropping would obviously be impossible even with court authorisation, for Correa – the chief suspect – may be a scoundrel, but he is certainly not a terrorist. What’s more, it must be said that this order was issued by the judge in the widest possible terms, ordering the interception of conversations with any lawyers, present and future, whether or not they were suspected of involvement in the corruption ring.
Given that this was a temporary order, the police officers requested an extension in March. A report on the question was sought from the public prosecutor, who did not oppose an extension to the widespread interception of the communications of the accused, always provided that this excluded communications with the lawyers representing each of the accused. It is thus a little surprising to read in certain media that Garzón’s actions were endorsed by the prosecutor. Anyone who takes the trouble to actually read the 70 pages of the ruling (not so many, really) will find that this is not exactly the case. Despite this report, on March 20th the judge issued a further order to extend the interception of communications in the same terms as before.
The ruling then goes on to examine what exactly «prevaricación» consists of, as typified in Article 446. It tells us that there is both an objective and a subjective element to it. The objective side is the unfairness of the decision which can only be taken to represent a radical divergence from the applicable legislation, in such a way that the decision being questioned cannot be supported by any minimally reasonable interpretation of the norm. In a democracy, any decisions must be assessed – logically enough – in an objective manner, in keeping with the current set of laws, the rules of coexistence laid down by the legislators. To act otherwise would be to convert any judge into an oracle of “justice”, thus perverting the separation of powers and the norms of the democratic rule of law. In addition, there must also be a subjective element which excludes from this categorisation any cases of error, because, otherwise, all of us who are public legal officials would be in prison (who can truly claim to have never put their foot in it in a big way). In other words, it is essential that, as is clearly stated, this radical divergence takes place “knowingly”, with full awareness that what is being decided is not covered by the law.
The ruling next analyses whether the events in question enter into this category. First of all, we must examine whether the objective element – that radical divergence from the regulation not covered by any reasonable interpretation – is present and it is here that we come up against a slight surprise. It turns out that the very Constitutional Court (CC), in its STC73/1983 ruling, interprets the final clause of Art. 51.2 of the GPL in an alternative and non-cumulative fashion, exactly as Garzón did! It would seem that the case ends here, but we must read on, as the Supreme Court ruling immediately states that this was a mere obiter dictum, subsequently rectified by the CC in its STC 183/1994 and that, from that time onwards, the SC faithfully follows the new constitutional doctrine in its rulings 245/1995 & 538/1997.
This is where we really get to the crux of the matter. Both the second ruling of the CC and those of the SC are crystal clear. The interpretation, reasoned and conclusive, is supported by a detailed teleological, systematic line of argument. Nobody can be in any doubt that this is nowadays the doctrine sanctioned by the two highest courts of Spain’s judicial system. But, is this sufficient to hand down a criminal verdict of «prevaricación»? We must remember that we are not speaking of initiating disciplinary proceedings against a judge, but rather of expelling him from the judiciary.
Some days ago, I had the privilege of attending a magnificent conference given by the Criminal Law professor at the Pompeu Fabra University and collaborator of our magazine, Jesús Silva, at the Academia de Legislación y Jurisprudencia. Commenting on the criminal definition of tax evasion, he reflected on the scope of the literal interpretation of the regulations and on the ordinary usage of the words (in this case the word “evasion”). He concluded that, for a conviction, they might not be sufficient, if the conduct being judged was not also passed through the filter of a systematic, teleological interpretation of the regulation. For a conviction, perhaps not, given the principle of minimal intervention in Criminal Law, among many others, but what about an absolution? Because, what is clear is that the literal interpretation of the debated regulation could indeed cover Garzón’s decision. In fact, had the legislators wished to clearly express its cumulative nature, this could have been achieved much better: “…cannot be suspended or intercepted, save in cases of terrorism with the prior granting of the corresponding court order” or a thousand other similar wordings. Let us remember that this literal interpretation of an alternative nature was at one time defended by the CC itself and that very doctrine (albeit obiter dictum) was in force for eleven years.
But, let’s move on to the subjective element, because, in addition, one and the other cannot be judged separately, as we shall see at once. Was Garzón fully aware that he was acting beyond the limits of the law? For the SC, such knowledge is evident, given the manifest lack of any basis for his interpretation of Article 51. Yet, if truth be told, we cannot fail to appreciate a certain circular nature in this line of argument: given that the decision is not based on any reasonable interpretation, it must be concluded that there is no possibility other than that the judge was aware of its lack of rationality. What’s more, at a given moment in time, there is a certain violation of the presumption of innocence and of the probative principle, on affirming that there is no case for considering the existence of any error, despite the allegations of the defence, because it would be “necessary to provide evidence of the same by furnishing elements which enable it to be shown that his belief was minimally reasonable, that is to say, that it was sufficiently sound as to lead him into error. In this case, none of this has been shown….”. In other words, where, on making a decision contrary to the law, an error is alleged, it is the defence which must prove this error, inasmuch as the divergence from the law implicitly entails a presumption of the concurrence of the subjective element: intent. Nonetheless, just as it is logical, to a certain extent, that the objective element of the definition should draw in the subjective element, that consequence could also favour the defendant; this is because, whenever the objective element raises doubts, the subjective element must likewise raise them. Especially when the SC finds no particularly convincing arguments here, aside from the objective classification. In short, where the objective element is overwhelming, the consequent subjective part may be reasonable, yet not in another case.
I shall finish off now. From my standpoint, the conclusion I draw from reading this ruling is quite simple. The SC was fed up, not just with the stardom of this judge and his idea of the judiciary as offering him carte blanche to roll out his own particular conception of justice, but also with his slapdash, clumsy style of preparing criminal cases, which is normally an inevitable consequence of the former. One key fact well worth pointing out is that, despite what many demagogic “progressive” champions of Garzón’s cause might think, the judge has done the Gürtel corruption network and, indirectly, the PP (Popular Party) an extraordinary favour. Because, regardless or whether or not he is convicted for overstepping the mark, the tremendous error of ordering the eavesdropping of the conversations between the allegedly corrupt defendants and their lawyers has enormously hindered the possibility of condemning them. The preparation of the criminal case has been contaminated by violating the defendants’ rights and their lawyers are not likely to fail to take advantage of this opportunity so clumsily handed to them on a plate.
What proves truly surprising, and this comes in the final conclusion, is the fact that, in order to make a judge in Spain toe the line, he has to be sentenced on a charge of “prevaricación”, even where this is achieved with such feeble arguments as those set forth in this ruling, and that there do not exist more proportional mechanisms for disciplining those performing these duties. But we already knew that, didn’t we?
(Este post ha sido traducido por L-DOS TRADUCCIONES: firstname.lastname@example.org)