Spanish court accused of violating journalists’ rights in corruption case

Politicians and legal experts are protesting a judge’s decision to seize two reporters’ phones and computers to discover the source of a leak

Journalists from the ‘Diario de Mallorca’ protest the court's decision.
Journalists from the ‘Diario de Mallorca’ protest the court's decision.CATI CLADERA / EFE

Spanish politicians, journalists and legal experts have strongly criticized a Mallorca judge’s decision to confiscate cellphones and computers used by two investigative journalists in order to find the source of an information leak in a far-reaching corruption case codenamed Cursach.

The case revolves around Tolo Cursach, a well-known Mallorca entrepreneur who built a business empire on a fortune of obscure origins and who once mingled with royalty and high-placed government officials. Long considered the island’s most powerful figure, he was arrested in March 2017 on 16 charges that include bribery, extortion, threats, money-laundering, homicide, corruption of minors and possession of firearms.

The public prosecution underscored that it is not the journalists who are being investigated for criminal acts, but their sources

Critics say that the decision to confiscate the reporters’ material is a clear violation of their right to the confidentiality of their sources, which is encoded in Article 20 of the Spanish Constitution.

Judge Miquel Florit, who is overseeing the Cursach investigation in Palma de Mallorca, ordered the police to seize the cellphones and computers used by Blanca Pou, a reporter with the news agency Europa Press, and José Francisco Mestre, of the island daily Diario de Mallorca. Spain’s Attorney General María José Segarra has defended the move, but legal experts consulted by EL PAÍS said that it violates the reporters’ rights.

While the case is under seal, the reporters were served with a warrant authorizing “the analysis of WhatsApp messages, emails and other social media in order to detect possible leaks of information by the individuals under investigation.”

The public prosecution underscored that it is not the journalists who are being investigated for criminal acts, but their sources. The latter may have incurred in disclosure of secrets for leaking a report that is part of an ongoing investigation.

But legal experts say that a line has been crossed.

Jacobo Dopico, a professor of criminal law at Carlos III University in Madrid, notes that protecting a reporter’s sources is a basic tenet of democracy. “If sources are not protected, there is no freedom of the press,” he says.

“The ultimate goal of confidentiality is freedom of information and thus the existence of free public opinion, which is essential in a democratic state,” adds Manuel Sánchez de Diego, who teaches constitutional law at Madrid’s Complutense University.

Jacobo Dopico, Carlos III University

These experts note that the European Court of Human Rights has always ruled in favor of reporters in cases where the protection of sources and the interests of a judicial investigation have clashed.

Despite this, the courts have repeatedly targeted journalists for investigation as a way to get them to reveal their sources.

The remarkable thing about this particular case, said the experts, is that neither reporter is formally under investigation, nor have they been summoned to give testimony in court, yet their phones and computers have been seized. Experts described this as “highly unusual.”

The head of the prosecution service for the Balearic Islands, Bartomeu Barceló, played down the relevance of the move.

“Great social alarm has been created, perhaps because there hadn’t been such a situation before, but it is of no particular relevance,” he said in a radio interview on the Cadena SER radio network. “Law firms have been searched on many occasions without this kind of repercussion, although lawyers are entitled to attorney-client privilege.”

Politicians have also voiced their concern. Asked about the case at a debate panel, Foreign Minister Josep Borrell said he was not aware of the facts, but added in a surprised tone: “I thought this had happened in Venezuela.”

The regional premier of the Balearics, Francina Armengol, said she respects judicial decisions but that “for citizens to receive relevant information, the rights and the confidentiality of sources must be respected,” she said. “This is a fundamental element of the rule of law.”

English version by Susana Urra.

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