Supreme Court Justice Ángel Hurtado issued an unusual order on Wednesday: intervene on all the contents of the computers, cell phones and tablets of state Attorney General Álvaro García Ortiz. At 9:17 a.m., the Superior Court announced that the judge had asked him to find a lawyer to defend himself in the trial opened against him for the alleged leak of an email linked to the tax fraud investigation of Alberto González Amador, his partner by Isabel Díaz Ayuso. Two hours later, at 11:18 a.m., the magistrate sent the UCO to his office in search of evidence on this alleged leak which he is investigating as the crime of revealing secrets.
For ten hours, Civil Guard agents cloned the Attorney General’s computer equipment. Hurtado’s order authorized them to copy them “in their entirety” as of March 8, 2024: conversations, photographs, videos, diary, contacts, geolocation indicators… An enormous amount of information which, given its status of the highest representative of the Public Prosecutor’s Office can include sensitive data on ongoing legal proceedings and even relevant state secrets. The decision has caused discontent in judicial circles, where the proportionality of an unprecedented measure in democracy is questioned and which, moreover, deviates from the actions of the courts in other investigations into alleged revelations of secrets .
“The person concerned’s telephone or cell phone will be seized,” the judge wrote. And even González Amador’s defense didn’t aspire to that. In a document presented to the Superior Court of Justice in July, his lawyer limited the diligence to asking Google for emails from García Ortiz’s personal account containing the text of his client’s confession, as well as emails exchanged from his account with the . Madrid provincial prosecutor Pilar Rodríguez between March 5 and 18. Additionally, the defense asked the tech company to check for possible emails deleted between those dates.
“The Attorney General’s files are full of secrets, court cases, communications with prosecutors and other authorities. No precautions were taken to protect them, which is why all these interests were neglected,” says a source at the Constitutional Court. “In 50 years, I have not seen action of this nature to resolve an alleged case of leaking information to a journalist. It’s absolutely disproportionate,” adds another voice from the Guarantees Court.
Telephone or computer tapping constitutes an exceptional measure, because it violates fundamental rights such as privacy or the secrecy of communications. This is why the judge who gives his agreement must make what is called a “judgment of proportionality” taking into account the seriousness of the crime he is investigating and what he wants to protect through this investigation. In this case, revealing secrets is punishable by two to four years in prison and what is supposed to be protected is the confidentiality of the information held by the prosecution.
In addition to those mentioned, other elements to be examined are the nature of the data that will be consulted and how their intervention affects the rights of the person under investigation, according to a circular from the Attorney General’s Office of the State approved in 2019. “Thus, For example, it may be appropriate to access the folder of emails sent, but not the folder of emails received, or to access the Internet activity of the interested party, but not to its stored data or, in short, to access only a certain type of data. », Includes this circular. And he adds that there are two ways to clone content: making a mirror copy or a bit-by-bit copy of the original information or a selective copy of certain folders or files. In the attorney general’s case, the judge’s order was to copy everything.
Judge Miguel Pasquau, member of the Civil and Criminal Chamber of the Superior Court of Justice of Andalusia, explained in a thread on his X account that a measure of this caliber “is only justified to investigate crimes of a certain magnitude. In this case, the intervention of the Attorney General’s apparatus took place “to investigate the authorship of a leak of something that was already known to the public; It did not reveal any personal data of an intimate nature (it was something that, due to its purpose, had to eventually become known) and was not considered an official secret. Questions which, in his opinion, are important to assess the proportionality of the measure.
Principle of proportionality
“Measures which affect fundamental rights such as the secrecy of communications are protected by the doctrine of the Supreme Court, the Constitutional Court and the European Court of Human Rights (ECHR) and are reserved for serious or very serious crimes. serious. The recording of IT devices and equipment was absolutely disproportionate,” says a source from the Constitutional Court.
“The car is brutal. This is writing that one might see in any drug trafficking or money laundering proceeding. This does not meet the principle of proportionality, because the content of the Attorney General’s communications goes beyond his own private life and may affect official secrets or secrets of others or information resulting from the investigation…”, assures lawyer Isabel Elbal. This lawyer explains that there are less harmful methods such as “blind search”, which makes it possible to discriminate between information linked to the investigation and avoids the cloning of all content.
The excessive scope of these files is a problem that has been addressed by European justice. In 2021, the Strasbourg Court found that the European Convention on Human Rights was violated during the search of a lawyer’s computer in which access was allowed to all data and not just files referring to customers under investigation. The European Court of Human Rights questioned the lack of justification for this scope, as the court ordering it gave “very brief and fairly general reasons when authorizing the search of all the data.
From Judge Silva to the case Cursach
The decision to clone the attorney general’s devices also departs from court actions in other investigations into alleged revelations of secrets. The newspaper’s archives contain cases like that of Judge Elpidio Silva, who was investigated for the leak and subsequent publication of emails that Miguel Blesa sent from his work address while he was president of Caja Madrid. Its publication allowed public opinion to become aware of the way in which the former banker managed the entity’s public money.
In this case, the first decision taken by the instructor, Susana Polo, was to summon him and other witnesses who would have had access to the emails and who “studied with him their possible usefulness or helped him to publish them” to testify. Among these eight witnesses were several lawyers and journalists. The investigation was exhaustive, even with a protected witness, but the judge never seized Judge Silva’s cell phone or computer. Ultimately, the case was archived by the Superior Court of Justice of Madrid as it was about to go to trial. Silva was kicked out of the race after being sentenced to 17 and a half years of disqualification for several crimes committed while investigating the Blesa case.
Another media case of revealing secrets was the leak of a police report reserved as part of the investigation into Palma night businessman Bartolomé Cursach. The judge in charge of the investigation, Miquel Florit, opened a separate room to investigate this leak and ordered the seizure of the cell phones and monitoring of the calls of two journalists who were covering information on the links and preferential treatment of this businessman with political and police institutions. .
However, he never agreed to register the devices and computer equipment of the former judge and prosecutor in charge of the case, Manuel Penalva and Miguel Ángel Subírán respectively, nor of the four police officers from the money laundering unit investigated. Finally, one of the arrested police officers voluntarily handed over his phone and authorized that this device and his computer could be tapped and analyzed by investigators.
The journalists took the case to the Constitutional Court, which ruled in their favour, finding that their right to effective judicial protection had been violated by preventing them from resorting to the “legitimate defense of their professional interests”. In addition, the person who agreed to listen to their phones was tried for these events, although he was acquitted of the crimes of prevarication, illegal interception of telecommunications, against the right to professional secrecy and against inviolability from home. However, the judgment recognized that he had acted unfairly and had not “duly” weighed journalists’ right to professional secrecy.
