STS 79/2012 of 9 February

The Second Division of the Supreme Court has pronounced judgment 79/2012 in case 20716/2009 brought before the Court by lawyer Ignacio Peláez against judge Baltasar Garzón.

The private prosecutor alleged a continuing criminal offence of breach of judicial duty and a criminal offence committed by the judge that consisted in the use of listening and recording devices by tapping the conversations between those suspects in prison and their lawyers in violation of the fundamental guarantees during a criminal proceedings.

Pablo Crespo and Francisco Correa, whose conducts where investigated by the judge, subsequently joined the procedure asprivate prosecutor.

Enclosed hereafter is the full text of the judgment, in which judge Baltasar Garzón is convicted for a criminal offence of prevaricación (breach of official duty) under article 446.3 in apparent plurality of applicable provisions (article 8.3) along with a criminal offence of violation of the constitutional or legal guarantees by any authority, public official or agent of these, under article 536, paragraph one, all of the Penal Code, and sentenced to the penalty of a fine of fourteen months at the daily rate of 6 euros, with subsidiary personal liability in accordance with article 53 of the Penal Code, and eleven years of special disqualification from serving as a magistrate or judge.

 

SUMMARY OF THE JUDGMENT 79/2012

Prevaricación (breach of judicial duty). Proceedings ordering the interception of communications between a defendant held in custody and its defence lawyer. No indicative evidence of criminal activity by the lawyers.

 

PRELIMINARY LEGAL GROUND: The right of defence is a core element in the configuration of the criminal process in a Constitutional State as a process with full safeguards (due process). It is not possible to construct a fair process if the right to defence is totally eliminated, so any restrictions must be specially justified.

In this case, actually it is not a question of examining the sufficiency of the circumstantial evidence or the reasons, or issues relating to the proportionality of a measure which restricts the right to privacy. Rather an appraisal in criminal law of the court orders which, directly affecting the right to defence by eliminating confidentiality, ordered the tapping and recording of communications between defendants held in custody and their defence lawyers, and there are is no information of any kind whatsoever to indicate that the lawyers mentioned in the proved facts were making use of the exercise of the defence in order to commit further offences.

FIFTH LEGAL GROUND:The public authorities, including the judicial branch, are subject to the Constitution and the rest of national law (article 9.1, Spanish Constitution); and article 117.1 of the same Constitution, subjects judges only to the rule of law.

In a democratic system, such as that regulated in the Spanish Constitution, the Judicial branch obtains its legitimacy from the enforcement of the law to which it is subject, and not by the mere imposition of its powers. So the Constitutional State is damaged when a judge, under the pretext of enforcing the law, puts into action only his own subjectivity, which takes the form of a particular way of understanding the question to be resolved, and dispensing with all methods of interpretation admissible in law, accepts an irrational meaning of the rule, thus replacing the rule of law by a contrary act of mere arbitrariness.

From this perspective, the legal specification of the criminal offence of breach of judicial duty cannot be understood in any case as an attack on the independence of the Judge, but rather as a democratic requirement imposed by the necessity of penalising behaviour in the exercise of judicial authority which, under the pretext of enforcing the law, directly harms the Constitutional State.

Case law has indicated that breach of duty entails a serious deviation from law; the injustice required by article 446 of the current Code requires an absolute collision of the judicial action with the norm that applies to the case, so that the decision questioned cannot be explained by any reasonable interpretation made by the methods usually allowed in Law.

SIXTH LEGAL GROUND: As for thesubjective element, expressed in the expression “knowingly”, it is nothing other than the express inclusion of intent in the sense that the perpetrator must have “...full awareness of the unjust nature of the decision handed down”. That is to say, he must be aware of the adoption of the decision, its meaning and consequences, and that none of this can be supported by a reasonable interpretation of the law.

 

SEVENTH LEGAL GROUND: TheCourt of Justice of the European Communities has indicated in the Judgment (Grand Chamber) of 14 September 2010 (Azko and Akcros v. Commission case), which quoting earlier judgments along the same lines, that “... in all proceedings in which sanctions, especially fines or penalty payments, may be imposed observance of the rights of the defence is a fundamental principle of European Union law...”.

The right of defence, developed substantially through assistance from a lawyer, is recognised as a fundamental right of an arrested person in article 17 of the Spanish Constitution and of a defendant, with the same nature although not exactly with the same content, in article 24. It is not found among those which article 55 of the Spanish Constitution considers to be susceptible of suspension in cases of a state of emergency or siege.

In article 24 it appears together with other rights which, although distinct and independent from each other, display a battery of guarantees aimed at ensuring the real efficacy of one of these: the right to a process with all guarantees in terms of the European Convention on Human Rights; in short the right to a fair trial. So that the legitimate use by the State of its faculty to prosecute and sanction criminal conducts, should only be satisfied within the limits imposed upon the exercise of power by the rights held by citizens according to the rule of law. No-one seriously disputes in this context that the search for the truth, even assuming that this can be achieved, does not justify the use of any means. Justice obtained at any price ends up not being Justice.

The confidentiality of relations between the defendant and his defence counsel, in which trust must naturally be a prevalent feature, is an essential element (ECHR Judgment Castravet versus  Moldova, of 13 March 2007, p. 49; and ECHR Judgment Foxley versus United Kingdom, of 20 June 2000, p. 43). In the ECHR Judgment of 5 October 2006, the case of Viola versus Italy (61), stated that “... Specifically, an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness (see S. v. Switzerland, 28 November 1991, § 48, Series A no. 220).

 

EIGHTH LEGAL GROUND: Article25.2 of the Constitution provides that a person convicted and sentenced to a term of imprisonment, and serving this sentence, shall enjoy the fundamental rights of this Chapter, except those which are expressly limited by the content of the conviction, the meaning of the penalty and penitentiary law. This provision applies to remand prisoners as they are inmates of a prison facility (Constitutional Court Judgment 141/1999, Legal Ground 6).

Article 51.2 of the Penitentiary Law contains the only case where these rights can be legally restricted by regulating possible limitations to the right of legal assistance of remand prisoners, with specific reference to their personal communications with their defence lawyers. Thus, the only admissible restrictions of that right are those contained in the Penitentiary Law. Not even the regulation of incommunicado detention in the Law of Criminal Procedure provides for a similar possibility, because even though this provision contains a serious restriction on the right of defence, which article 17 of the Spanish Constitution recognises to any detained person, it only holds a prohibition of the confidential interview with the lawyer, necessarily appointed ex officio, without making any reference, as an alternative, to the possibility of intercepting communications between both.

The Court reiterates its opinion (Supreme Court Judgment No 245/1995, of 6 March and Supreme Court Judgment No 538/1997, of 23 April, and also, although as an obiter dictum, Supreme Court Judgment No 513/2010), that the interception of the communications between prisoners and their defence lawyers or lawyers expressly called in relation to penal matters, may only be ordered in terrorism cases and with a prior authorisation from the competent judge.

Therefore for other cases in which it is understood that interception could be essential for the investigation, a legal reform would be necessary; that reform should contain an enabling measure of sufficient quality to intercept communications between prisoners and defence lawyers or lawyers expressly called in relation to penal matters, establishing the cases and circumstances in which such interception would be possible and its consequences.

TWELFTH LEGAL GROUND: None of the admissible methods of interpretation of the law which the accused could have used with respect to those rules would have led him reasonably to conclude that it is possible to restrict substantially the right of defence, with the devastating effects on the core structure of the criminal process, in the way that he did. That is, by tapping and recording confidential conversations held by the defendants with their defence lawyers in the special visiting rooms at the prison where they were held on remand; and without having any information which might indicate minimally, in a reasonable assessment, that the lawyer’s position and the exercise of the right of defence were being used as a stratagem for facilitating the commission of further offences. This is not, then, an erroneous interpretation of the law, but an arbitrary act, lacking reason, which destroys the constitutional configuration of the criminal process as a fair trial.

The injustice in the conduct of the accused consisted of accepting an interpretation of the law according to which he could intercept communications between the defendant in custody and his defence lawyer solely on the basis of the existence of evidence of the criminal activity of the former, without considering it necessary for the evidence to extend to the lawyers.

This is unacceptable in any reasonable interpretation of the Law, as it leads directly to a blanket authorisation of the interception of communications between a defendant in custody and his defence lawyer, thus curtailing in general the right of defence exclusively on the basis of the seriousness of the criminal offence being investigated and on the evidence existing against the former, which is precisely that which determines remand in custody. It would then be sufficient to base remand in custody on section 2 of article 503 of the Law of Criminal Procedure (to prevent the risk of the defendant committing further criminal acts) in order to justify the suppression of confidentiality in the communications of a defendant with his defence lawyer. This course of action would result in an across-the-board destruction of the right of defence, which has no place under the Constitution.

In this case, with his decision the accused brought about a drastic and unjustified curtailment of the right of defence and other affected annexed rights, or in other words, as has been said by the investigating judge of this case, a chipping away at those rights, putting the specific jurisdictional action which he headed, and even if it were admitted as arguable, putting the whole Spanish criminal process, theoretically provided with the constitutional and legal guarantees which are proper to a modern Constitutional State, on the same level as political and procedural systems characteristic of time past, before the introduction and generalised acceptance of the modern liberal criminal process, allowing practices which at the present time one could  only found in totalitarian regimes, in which anything is considered to be valid in order to obtain information of interest, or assumed to be of interest, to the State, dispensing with the minimum effective guarantees for citizens and thus turning the constitutional and legal provisions on this matter into mere hollow proclamations.

The decision is unjust, because it arbitrarily restricts the right of defence of suspects in custody, without any reason whatsoever which may be minimally acceptable.

In addition, and as added elements, that application of the law to the case was made in an absolute departure from the opinion of the Constitutional Court (article 5.1 of the Organic Law on the Judiciary) and this Division of the Supreme Court, stated above, which, setting the limits of the fundamental right of defence, expressly reject the interpretation accepted by the accused, and his choice of interpretation is not accompanied by a minimum explanation of the reasons which lay behind it. Assessed as a whole, this was revealed to be an act of mere arbitrariness, in anyone’s eyes, which, by its content, departed arbitrarily and absolutely from the reasoned enforcement of the Law, causing harm, that is both wholly unjustified harm and difficult to repair, to the rights of defence of the defendants and, to an extent, to the rights of the lawyers affected, in particular the right and duty of professional privilege which is essential for a proper defence.

Provisions listed:

European Convention on Human Rights Article 6 § 3

Spanish Constitution. Article 9§1, 17, 24, 25§2, 55 and 117§1.

Organic Law on the Judiciary. Article 5§1

Organic General Penitentiary Law. Article 51.2 Communications between inmates and their defence lawyer or the lawyer expressly summoned to deal with criminal matters, as well as with Counsel representing them, shall be held on appropriate premises and may not be suspended or intercepted, except by order of the judicial authority and in cases of terrorism.

Penal Code

Article 8.3. Actssusceptible of being specified in accordance with two or more provisions of this Code, and not comprised in articles 73 to 77, will be punished in accordance with the following rules: (…) 3. The broader or more complex penal provision will absorb those that punish the infractions subsumed into it.

Article 536, paragraph one. Any authority, public official or agent of these who, where there are criminal proceedings, intercepts telecommunications or uses  technical devices for listening, transmission, recording or reproduction of sound, image or any other communication signal, in violation of the constitutional or legal guarantees, shall incur the penalty of special disqualification from public employment or posts of two to six years.

Article 446.3 Any Magistrate or Judge who knowingly hands down an unjust judgment or decision shall be punished: (…) 3. With a penalty of a fine 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 hand down any other unjust judgment or decision.

Case Law:

Judgment of the Court (Grand Chamber) of 14 September 2010. Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission. (Case C-550/07 P)

European Court of Human Rights. ECHR. S. v. Switzerland, 28 November 1991

European Court of Human Rights. ECHR Judgment of 5 October 2006, the case of Viola versus Italy

European Court of Human Rights. ECHR Judgment Castravet versus  Moldova, of 13 March 2007

European Court of Human Rights. ECHR Judgment Foxley versus United Kingdom, of 20 June 2000

Tribunal Constitucional. Constitutional Court Judgment 141/1999

Tribunal Supremo. Supreme Court Judgment No 245/1995, of 6 March

Tribunal Supremo. Supreme Court Judgment No 538/1997, of 23 April

Tribunal Supremo. Supreme Court Judgment No 513/2010 of 2 june