Spanish Judge Baltasar Garzón has been found guilty of prevaricación in the Gürtel wiretapping case, for willfully and knowingly violating the law by ordering the interception of conversations between the Gürtel defendants and lawyers who visited them in jail.
The sentence of 11 years disqualification from any judicial or comparable office will end Garzón’s career at the Audiencia Nacional in Spain.
The Supreme Court’s conviction of Garzon for prevaricación (willful decision against justice, i.e., to violate the law) in the Gürtel case appears to rest, at bottom, on a finding that there was no evidence against the specific lawyers whose conversations with defendants in jail were intercepted as a result of Garzon’s orders approving the wiretapping. His orders were in fact issued before some of the lawyers were selected.
Garzón argued that those orders were issued on the basis of suspicions the police, the prosecutors and ultimately he, the investigating judge, had that the Gürtel defendants were using their lawyers to continue committing crimes including money laundering, from jail.
The court found no evidence of criminal behavior in the record to justify those suspicions against the specific lawyers named in the private action. Earlier, the court had refused to admit evidence proposed by Garzón.
See Tribuanl Suprema, Sala de lo Penal, “Sentencia No. 79/2012,” Causa Especial No. 20716/2009, 09/02/12.
For full reporting on and reactions to the case, see El País, 9 de febrero de 2019.
After taking two years to process the case, and then rushing to make sure it was heard before the “historical memory” case which has just concluded and is awaiting judgment, the Supreme Court produced an intricate and tightly reasoned opinion in 17 working days after the conclusion of the final hearing on January 19–an extraordinary feat given the exhaustive references to the Court’s case law contained in the judgment.
One crucial fact is that the Public Prosecutor’s Office (la Fiscalía) supported Garzón’s positions throughout the case. This fact is hard to square with the Court’s conclusion that no reasonable legal interpretation could support Garzón’s order to initiate the wiretaps, as is the fact that another judge subsequently reached the same conclusion as Garzón when he extended the wiretaps.
Lawyers, law professors, and journalists will now pore over the court’s opinion, and much critical analysis will follow.
A key factual issue which the Court resolved, without hearing all of Garzon’s proffered evidence, was whether there were reasonable indicia of continuing criminal activity by the Gürtel defendants and their lawyers, operating from jail. The court’s argument that the evidence had to be against specific lawyers, when some of them had not yet been selected, raises questions.
An important legal issue is whether Garzón reached the correct decision in ordering the wiretaps. If he did not–and a panel held earlier that his decision should be overturned–he would be guilty of making a judicial error. In itself, that is not a career-ending offense.
Signficantly, as noted above, the wiretaps were ordered to be extended twice, by at least one other judge, after Garzón’s involvement in the case ended. Whether the other judge will now be charged with prevaricación is unknown.
The critical legal and factual issue on which the case ultimately turned was whether Garzón willfully decided to order the wiretaps, knowing that there was no reasonable legal interpretation which could justify his decision. The Supreme Court found that there was no such interpretation, and that Garzón knowingly decided to act against the law.
These issues will remain hotly disputed, as Garzón appeals his conviction, possibly to the Constitutional Court in Spain, and ultimately to the European Court of Human Rights in Strasbourg.
The Trenchant Observer
For earlier articles on the Garzón case, please use the Search Box on the main page which, if you are not already there, can be accessed by clicking on “The Trenchant Observer” at the top of this page. Articles have been published in both English and Spanish.