There are fraudulent rulings and rulings that are inherently fraudulent. The Supreme Court's ruling that convicts the Attorney General falls into the latter category. This court, boasting of its extensive expertise and the high legal caliber of some of its members, has drafted a decision that appears technically sound, but which falters when it addresses the core issue it is meant to resolve.
The judges excel at discussing ancillary theoretical matters, but fail to justify the defendant's guilt. On this point, the verdict is built on categorical assertions, but lacks convincing legal explanations. Virtually everything stated regarding guilt rests on the judges' personal conviction, which, however, seems to defy rational explanation.
The court states that the criminal leak in question had to have originated from the Attorney General's office and that it is indisputable that the accused or someone with his consent was responsible. It even insists that there is no reasonable alternative explanation, but at no point does it clarify the reasons for such conclusive findings. It simply dismisses the possibility that the leaker was any of the hundreds of prosecutors who had access to the text, but it also fails to explain why. It overlooks the fact that during the investigation, one of his colleagues did not consider it useful to investigate whether any of those individuals accessed the leaked message on the internal computer network. Perhaps this is because he assumes that this case was not initiated to find the culprit, but rather to blame the Attorney General.
Regarding the alleged evidence, several pages of the decision are dedicated to arguing that the Attorney General was not obligated to destroy his messages and emails. And they are convincing. Indeed, he was not required to delete all of that. Now, the only thing the Supreme Court deduces from this is that the absence of messages cannot serve as exculpatory evidence. A clearly unconstitutional line of reasoning, because in our system, proof of guilt, not innocence, is required. Deletion does not prove innocence, that's true. But that doesn't imply, as the judges of our highest court would have us believe, guilt. Democracy is not like that.
In more than a hundred pages, the court also failed to find space to explain why it considers the testimony of the Chief Prosecutor of Madrid—who stated that the Attorney General did not deny having leaked the email in question—credible, but not that of the journalists. It claims that what these journalists said was truthful testimony, and yet it still doesn't believe it, for reasons unknown.
To compensate for this lack of explanation, the text is peppered with phrases that contribute nothing but look good in any headline. It's difficult to disagree with the Supreme Court when it says that one cannot respond to fake news by committing a crime. The problem is that it also hasn't found space to explain what crime is committed by disseminating the press release, nor what exactly the novel concept of "unity of action" between the leak and the press release consists of.
The judges claim that the press release "officializes" the leak. This seems to refer to the fact that when it's unknown whether a leak is true, acknowledging its origin adds a new piece of information that legitimizes it. Again, the idea is valid, but at no point is it explained that this has happened in this case. If the press release didn't provide any new information or even confirm anything doubtful, it's absurd to consider it a crime of dissemination. If the reader wonders why our Supreme Court is putting so much effort into something absurd, there's an obvious explanation. And it's not legal.
The author of the press release is known. The Attorney General himself has admitted to writing it. This proven authorship is behind the absurdity of suddenly reclassifying as a crime an act that clearly is not one and which was already dismissed. It has all the hallmarks of an insurance policy taken out in the hypothetical case that the Constitutional Court finds that the rest of the conviction was not based on sufficient evidence. There is, however, evidence regarding the note.
Thus, beyond the ambiguous or out-of-context phrases highlighted in the media these days, the truly remarkable aspect of the ruling is its failure to sufficiently and unequivocally prove that it was the Attorney General who leaked or ordered the leaking of the email. Hundreds of pages on formal matters and weighty arguments regarding marginal legal issues should not make us forget that this was the core of the decision. And it is not adequately resolved.
It shouldn't be enough for the public that five Supreme Court justices are deeply convinced the prosecutor is guilty. In a democracy, it doesn't matter whether a judge believes something or not, but whether they can present objective evidence to prove it. And when it comes to declaring someone guilty, there is no room for the slightest doubt. This ruling fails to meet expectations. No matter how much scholarly jurisprudence it may establish on ancillary matters, it is not a formally correct judicial decision at its core.
In judging the verdict, the manner in which it was drafted is also crucial. Everything indicates that it was not conducted in accordance with the Constitution and the basic principles of the rule of law. The few hours of deliberation the judges had before the ruling hardly allowed them to discuss all the issues addressed in the 240-page judgment. The fact that 20 days passed before the reasoning was made public raises doubts. It is not unreasonable to imagine that, on this occasion, the most appropriate guilty verdict was decided first, and then a way to justify it was sought. This suspicion is extremely dangerous for public trust in the justice system.
From that point on, everyone is free to believe whether Álvaro García Ortiz is guilty or not, even though it hasn't been proven. Therefore, for some, the sentence constitutes an act of substantive justice, formally deficient but morally justified. For others, however, we are facing yet another politically motivated sentence, designed to damage the government. Perhaps that's the least of it, and thinking in such terms is falling into the trap set by a body that is now more supreme than a court.
