09 Feb Garzon Suspended for Wiretapping Lawyer-Client Conversations
Should human rights folks still defend him?
Spain’s Supreme Court on Thursday convicted the crusading human rights judge Baltasar Garzón of illegally ordering wiretapping in a corruption case and suspended him from the courts for 11 years.
I don’t know much about the background of this case. It appears to be a very serious conviction, unrelated to his more celebrated investigation of Franco-era crimes.
The 7-0 ruling came in a 2008 corruption case in which Mr. Garzón ordered wiretaps to monitor conversations between lawyers and their clients. The judge argued that such taps were needed to ensure that the main defendants would not be able to transfer money garnered from their corrupt business dealings while held in jail under investigation. In a case brought by the defendants who had been monitored, the Supreme Court ruled that such an order not only contravened defense rights but also “damaged the right to confidentiality.”
Emphasis added. Of course, the main criticism here is not that Garzon was necessarily right to order this type of wiretap, but that he should punished for what is essentially a legal mistake via a criminal conviction and a judicial suspension. I don’t know enough about Spanish law to know if this is an unusual remedy for an illegal wiretap (it certainly would be in the U.S.).
Response…
Do you suggest that Garzon “was necessarily right to order this type of wiretap”? It seems so.
Are there implications for GTMO? since lawyer-client communications have been wiretapped and letters read, etc. in the passt.
I’m not from Spain but I have read the judgment (see here http://www.scribd.com/doc/81241443/SENTENCIA-GARZON).
Spanish law provides that wire-tapping of attorney-client conversations are only permitted “with a warrant and in cases of terrorism”. In the 90s, the Constitutional Tribunal and the Supreme Court interpreted that “warrant + terrorism cases” were cumulative rather than alternative requirements. So, in sum, attorney-client communications could only be intervened in terrorism cases. Garzon ordered wire-tapping of such communications in a corruption case, thus exceeding his authority and committing prevaricato (don’t know how to say it in English but it basically means that as a judge he did something he wasn’t allowed to).
In Spanish Law “prevaricar” means pronouncing deliberately wrongful decisions. And criminal convictions for “prevaricación” are not unusual. Supreme Court Judgement about Garzón gives some instances of judicial actions considered to constitute that offence: performing a civil marriage without any prior proceedings, quashing a judicial foreclosure because of susbstantive reasons, passing decisions to delay an adoption by two lesbian women…
In 1999 a Investigative Judge of National Court was found guilty of prevarication by Supreme Court for keeping judicial proceedings secret disobeying the decision of a superior court and taking provisional measures without legal cause
And not long ago, the Superior Court of Andalucía convicted a Judge of “prevaricación imprudente” (pronouncing wrongful decisions because of serious negligence or inexcusable ignorance) for modifying, without due process, the visiting arrangements in order to let an eleven- year- old boy to take part in a Holy Week procession.
I think it’s clear that monitoring conversations between lawyers and their clients without authority is much more serious than all of those examples. Conviction of Judge Garzón was almost inevitable.