A trial vs. a judge of the Spanish Audiencia Nacional accused of breach of legal duty has been held a few days ago before the Spanish Supreme Court.

Mr Garzon, as a magistrate of the Audiencia Nacional, was in charge of a criminal investigation related with the Guertel case, for charges of money laundering, tax evasion, bribery and insider dealing.

Prosecuted facts

Judge Garzon authorized to wiretap conversations held in jail between the defendants in protective custody (waiting for their trial) and their defence lawyers.

The Spanish penitentiary legislation (supported by the Constitutional Court case law) only allows wiretapping of a detainee’s communications with his lawyers by means of a court order for alleged terrorism. In this case, the investigated crimes were not related to terrorism.


Judge Garzon said to defend himself that he had ordered wiretapping to prevent the attorneys to collaborate with their clients in custody to continue with the money laundering as, according to the police, there were pieces of circumstantial evidence.

He also claims that the purpose of the measure was to get to know not the defence strategy of the attorneys, but the statements of the detainees regarding the alleged money laundering activity, indicating that he would erase from the proceedings anything that would affect the right of defence.


According to the private prosecution, a procedural guarantee has been infringed as the wiretapping has been authorized without the required legal context. Also, the right of defence of the defendants has been violated when communications between them and their attorneys were tapped, as it disclosed the procedural strategy of the defence both to the judging body and to the prosecution.

Merits of the case

Once again, we are facing the never ending debate between the end and the means used to meet it, between material right and formal right: whether it is right to disregard formal guarantees to obtain material justice.

The interpretation of the criminal precept is at stake, giving rise to the following question: it is right to wiretap conversations between a lawyer and his client in pre-trial custody in cases different from alleged terrorism when there are clues indicating that the lawyer may be collaborating with the detainee to commit a crime?


The truth is that the Spanish legal order regarding criminal – and even constitutional – issues faced a decision that could have shaken the foundations of the current procedural guarantees and determined in the future a significant change in the conception of the right of defence as well as in the way to understand a lawyer’s job.

The question was unanimously solved by the Magistrates of the Supreme Court, who have decided to keep protecting the invulnerability of the conversations between a lawyer and his defendant, as they consider this protection as the best guaranty of the right of defence, without whom the State couldn’t be said to be ruled by law.

Javier Cabello