Supreme Court Judge Ángel Hurtado gave an unusual order this Wednesday: to intervene all the content of the computers, mobile phone and tablet of the State Attorney General, Álvaro García Ortiz. At 9:17 in the morning, the high court reported that the judge had asked him to find a lawyer to defend himself in the case opened against him for the alleged leak of an email related 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 about that alleged leak that he is investigating as a 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, agenda, contacts, geolocation indicators… An enormous amount of information that, given his status as the highest representative of the Public Ministry, may include sensitive data on ongoing judicial proceedings and even relevant state secrets. The decision caused discontent in judicial circles, where the proportionality of an unprecedented measure in democracy is questioned and which, in addition, deviates from the actions of the courts in other investigations into alleged revelations of secrets.
“The telephone or mobile phone of the interested party will be seized,” the judge wrote in writing. And not even González Amador’s defense aspired to that much. In a document presented before the Superior Court of Justice in July, his lawyer limited the diligence to requesting from Google the emails from García Ortiz’s personal account that contained the text of his client’s confession, as well as the emails exchanged from his account. with the provincial prosecutor of Madrid Pilar Rodríguez between March 5 and 18. In addition, the defense asked the technology company for verification of possible emails deleted between those dates.
“The attorney general’s files are full of secrets, court cases, communications with prosecutors and other authorities. No precaution has been adopted to protect them, which is why all these interests have been disregarded,” maintains a source from the Constitutional Court. “In 50 years I have not seen an action of this nature to resolve an alleged case of leaking information to a journalist. It is absolutely disproportionate,” adds another voice from the guarantee court.
The tapping of telephones or computers is an exceptional measure, as it compromises fundamental rights such as privacy or the secrecy of communications. That is why the judge who agrees must make what is called a “proportionality judgment” taking into account the seriousness of the crime he is investigating and what he wants to protect with that investigation. In this case, the revelation of secrets is punishable by between two and four years in prison and what is supposedly intended to be protected is the confidentiality of the information held by the Prosecutor’s Office.
In addition to those mentioned, other elements to examine are the nature of the data that will be accessed and how its intervention affects the rights of the person under investigation, according to a circular from the State Attorney General’s Office approved in 2019. “Thus, For example, it may be appropriate to access the folder of sent emails, but not the folder of received emails, or access the internet activity of the interested party, but not their stored data or, in short, only access a certain type of data”, this circular includes. And he adds that there are two ways to clone the content: make a mirror copy or bit-by-bit copy of the original information or a selective copy of certain folders or files. In the case of the attorney general, 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 for the investigation of crimes of a certain magnitude.” In this case, the intervention of the attorney general’s devices was made “to investigate the authorship of a leak of something that was already known to the public; It did not reveal personal data of an intimate nature (it was something that, due to its purpose, would end up having to be known) and it was not considered an official secret.” Issues that, in his opinion, do matter when assessing the proportionality of the measure.
Proportionality principle
“Measures that affect fundamental rights such as the secrecy of communications are protected by 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. The registration of computer devices and equipment was absolutely disproportionate,” says a source from the Constitutional Court.
“The car is brutal. It is a writing that you could see in any drug trafficking or money laundering procedure. It does not respond to the principle of proportionality because the content of the attorney general’s communications goes beyond his own privacy and may affect official or other people’s secrets or information from investigations…”, assures lawyer Isabel Elbal. This lawyer explains that there are less harmful methods such as the so-called “blind search”, which allows the information related to the investigation to be discriminated and avoids cloning all the content.
The excessive scope of these records is an issue that has been addressed by European Justice. In 2021, the Strasbourg Court considered that the European Convention on Human Rights had been violated in the search of a lawyer’s computer in which access had been allowed to all data and not only to the folders referring to clients who were object of investigation. The ECtHR questioned the lack of justification for this scope, since the court that ordered it gave “very brief and quite 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 deviates from the actions of the courts in other investigations into alleged revelations of secrets. The newspaper archive includes cases such as that of Judge Elpidio Silva, who was investigated for the leak and subsequent publication of the emails that Miguel Blesa sent from his corporate address while president of Caja Madrid. Its publication allowed public opinion to learn about the way in which the former banker managed the entity’s public money.
In that case, the first decision made by the instructor, Susana Polo, was to summon him and other witnesses who supposedly had access to the emails and who “studied with him their possible usefulness or helped him publish them” to testify. Among those 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. Finally, the case was archived by the Superior Court of Justice of Madrid when it was about to go to trial. Silva was expelled from the race after being sentenced to 17 and a half years of disqualification for several crimes committed when he was investigating the Blesa case.
Another case with media coverage of revelation of secrets was the leak of a police report reserved within the framework of the investigation of Palma nightlife businessman Bartolomé Cursach. The judge who investigated the case, Miquel Florit, opened a separate piece to investigate this leak and ordered the seizure of cell phones and the tracking of calls of two journalists who covered information about the ties and preferential treatment of that businessman with political and police establishments. .
However, he never agreed to register the computer devices and equipment of the former judge and prosecutor in the case—Manuel Penalva and Miguel Ángel Subírán, respectively—nor of the four police officers from the Laundering Unit investigated. Finally, one of the arrested police officers did voluntarily hand over his phone and authorized that both this device and his computer could be tapped and analyzed by investigators.
The journalists took the matter to the Constitutional Court, which agreed with them, considering that their right to effective judicial protection was violated by preventing them from using the “legitimate defense of their professional interests.” Furthermore, the person who agreed to wiretap 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 the inviolability of the home. However, the ruling recognized that he had acted unfairly and that he did not “duly” weigh the right to professional secrecy of journalists.
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