To establish a hypothesis about the facts in any process, whether criminal or of any other kind, it is necessary that sufficient evidence has been presented to the proceedings in that regard. If the matter at hand is a condemning decision in a judgment, it is commonly said that the hypothesis of guilt must be proven beyond a reasonable doubt. For other decisions or for other kinds of proceedings, it is customary to consider that it is enough, instead, for the hypothesis to be the most probable. Despite its vagueness, we can say that these are forms of setting thresholds of evidentiary sufficiency (standards of proof) so that one or the other decision corresponds to be adopted.
The importance of the standards of proof is crucial, because their precise definition and understanding determines the content of the obligation to motivate in matters of evidence: all justification, ultimately, must be aimed at explaining whether the evidence is sufficient or insufficient to adopt the decision in question. If the threshold of evidentiary sufficiency is indeterminate or if judges are allowed to raise or lower it at will, due process and, with it, the presumption of innocence, are reduced to a mere rhetorical facade.
This reflection is relevant in light of Order 21797/2025 from the Appeals Chamber of the Supreme Court in the case in which the Attorney General of the State is charged with revealing secrets. This order is the ruling on the appeals filed against the judge’s order of inquiry, which had ordered the continuation of the proceedings in the abbreviated procedure. In brief, the investigating judge, once the procedure’s investigation was concluded, understood that there are sufficient elements of evidence (which they prefer to call indications) to open an oral trial against the Attorney General of the State, Álvaro García Ortiz, and against the Madrid provincial chief prosecutor, María Pilar Rodríguez Fernández, for a crime of revealing secrets.
“On what basis do they found their prognosis of ‘near certainty’ (always subjective) that the Madrid provincial chief prosecutor could not be convicted and neither could the other twenty people who are shown to have had access to the leaked email and who have not even been investigated?”
Let us minimally recall the case: The Tax Agency and the Prosecutor attributed to Mr. Alberto González Amador, partner of the president of the Community of Madrid, a tax fraud offense for the nonpayment of 350,000 euros through the issuance of false invoices to avoid taxation on incomes of a little over one million euros. In the framework of that proceeding, the defense attorney for Mr. Amador contacted the Prosecutor’s Office by email to express acknowledgment of the crimes by his client, aiming to reach an agreement that would facilitate a more lenient sentence, in accordance. A crucial email in this sense was sent by Mr. Amador’s attorney to the Prosecutor’s Office on February 2, 2024.
The next relevant episode occurred on March 13 of that same year: in the morning, the president of the Community of Madrid, Isabel Díaz Ayuso, held a press conference in which she attributed the investigation against her partner to a political operation of persecution and denied that her boyfriend owed money to the Hacienda (Tax Office), stating that the opposite was true. Mr. Miguel Ángel Rodríguez, the president’s chief of staff, for his part, disseminated to the media distorted information and emails indicating that it was the Prosecutor’s Office that had offered a deal to Mr. González Amador and that the offer had been withdrawn “by orders from above.” This version was published in its digital edition by the newspaper El Mundo at 21:29 hours.
From there, the Attorney General of the State contacted by telephone the Madrid provincial chief prosecutor to request that she send him the case file and, in particular, the emails exchanged between the prosecutor handling Mr. González Amador’s case and his defense attorney. All with the stated intent of producing an informational note denying the information published by El Mundo. After several diligences, the chief prosecutor sent the emails to the Attorney General at 21:59 hours that day.
“Why do they assume there is a connection between the Attorney General’s intention to issue an informational note and the act of leaking an email the day before?”
Later, at 23:25, Cadena Ser reported that it had access to the emails exchanged by the case’s prosecutor and Mr. González Amador’s lawyer and that with them it could fully refute the information published and disseminated by the chief of staff to Ms. Díaz Ayuso: the initiative of the agreement had proceeded from the defense attorney, following acknowledgment of the crimes, and there was never a rejection of the possible agreement by the Prosecutor’s Office. Other media outlets such as elDiario.es, laSexta, El País, etc., also echoed these claims.
During the morning of March 14, the Madrid Provincial Prosecutor’s Office released an informational note, drafted by the Attorney General of the State, explaining the chronology of the González Amador case. From that moment on, a new criminal case was initiated, upon a complaint filed by Mr. González Amador, accusing the Prosecutor’s Office of having disclosed personal and procedural data that it was obliged to keep confidential.
This is the case we are dealing with now. During its development, the Supreme Court had already ruled that the publication of the informational note of the 14th did not constitute a crime of revealing secrets, because the data it contained were already public knowledge. But, by contrast, the leaking of the emails between the lawyer and the prosecutor to Cadena Ser and other media outlets, allegedly produced on the night of the 13th, could have been a crime.
The Access to the Email
With the facts already explained, the suspicions and the investigation originally targeted the Attorney General, the Madrid provincial chief prosecutor and several other members of the Prosecutor’s Office. Searches were ordered in the official offices of the investigated persons, their phones and computers were seized, expert evidence was requested on the information contained therein, Google and other platforms and service providers were asked to report whether they could retrieve information from emails, messages and calls, testimonies from journalists who had access to the information were collected, as well as statements from Mr. González Amador, Miguel Ángel Rodríguez, some intervening prosecutors and the investigated themselves.
From all this, two data points appear crucial in my view:
- It could be verified that at least 21 people, in addition to the Attorney General, had access to the February 2, 2024 email sent by González Amador’s lawyer and subsequently leaked to the press: the email was sent by the lawyer to the generic mailbox of the Madrid Provincial Prosecutor’s Office’s Economic Crimes Section, which twelve prosecutors and four staff had access to, with a copy to the dean of prosecutors; and the State Advocacy also had access to the email, whether to an individual mailbox or a shared one is unknown, the Madrid provincial chief prosecutor Pilar Rodríguez, and Madrid’s senior prosecutor Almudena Lastra, to whom Julián Salto (the case prosecutor) sent a copy. These 21 people had access to the email well before the Attorney General, and any of them (or others not identified) could have leaked it to the press.
- The statements of journalists Esteban Urreiztieta (El Mundo); José Manuel Romero-Salazar, Luis Ramón Manuel Gómez Arrojo, Fernando Peinado Alcaraz and Berta Carrero Franch, (El País); Miguel Ángel Campos Peñarroja (Cadena SER); Alfonso Pérez Medina (laSexta), and José Manuel Precedo, (elDiario.es) were consistent in that all of them had access to the February 2, 2024 email or to the information contained in it hours or even days before it was sent to the Attorney General on the night of March 13, 2024. All the journalists asserted their right to protect their sources, but if they received the information before the Attorney General, it is evident that he could not have been the source of the secret leak.
Given these two compelling data points, the defense of the investigated and the Prosecutor’s Office requested the dismissal of the case, which was denied by the examining judge, who, however, concluded that there are sufficient elements of evidence to open trial against the Attorney General and the Madrid chief prosecutor. The Court of Appeals, composed of three judges, in its order issued this Tuesday, in turn, orders the dismissal of the case regarding the Madrid chief prosecutor and the continuation of the process regarding the Attorney General. Judge Andrés Palomo del Arco disagrees with his colleagues on the panel and in his separate opinion defends the dismissal also with respect to the Attorney General.
What Are the Bases for the Decisions?
On what grounds do the examining judge and the majority of the Court of Appeals base their decisions? And on what ground does the separate opinion dissent from them? In my view, two argumentative steps are crucial.
The majority’s order states (p. 10): “In STS 705/2022, cited above, we declared that to grant dismissal there must be a prognosis, ‘near certainty,’ that the evidentiary base is so fragile that the crime cannot be demonstrated. By contrast, if there is a sufficient evidentiary basis that makes not only highly probable but rationally possible a conviction, even if not certain, it would be premature to abort the proceedings (in dubio pro juicio).”
And the separate opinion of Judge Palomo says: “Prosecution is only warranted if ‘the perpetration of the crime is sufficiently justified. The preliminary investigative phase in the criminal process serves not only to prepare the oral trial but also to avoid opening unnecessary trials” (p. 40). “Thus, at this procedural stage, a tightly plotted, plausible narrative, as if it were a work of fiction, that would allow the so-called suspension of disbelief, is not enough; what is required is an assessment of the sufficiency of the prosecutorial evidence regarding the perpetration of the act by the accused, where his participation is at least as possible or as strong as the opposite” (p. 41).
Thus, the disagreement centers on the standard of proof that must be satisfied for an oral trial to proceed: the majority holds that it suffices not to have the certainty that the crime cannot be demonstrated (thus undermining the presumption of innocence) and the separate opinion maintains that the accusatory hypothesis must be at least as probable as that of innocence, in light of the evidence collected. Both, the majority and the separate opinion, cite prior jurisprudence of the Supreme Court in their favor. This is not surprising, because if there is one thing I can say with certainty it is that we do not know when the evidence (the indications, as they would call them) is enough to proceed. And we can all recall important cases where not only the opening of a trial but even the designation as an investigated person with much more compelling evidentiary bases than this were denied.
“According to the Court of Appeals, the coincidence of journalists from five media outlets with different ideological orientations is not a reliable evidentiary element because they refused to reveal their sources”
In any case, even assuming the standard of proof proposed by the majority, on what basis do they justify their “near certainty” prognosis (always subjective) that the Madrid’s Madrid provincial chief prosecutor could not be convicted and that the other twenty people who are shown to have had access to the leaked email, and who have not been investigated, could not be convicted? Why do they assume there is a connection between the Attorney General’s request to issue a note and the act of leaking an email the day before? Everything seems to slide toward a colossal confirmation bias of a starting hypothesis for the entire process: the main involvement of the Attorney General. Therefore, it is not surprising that the majority finds the answer in the erasure of information from their devices, because “it is common experience that data deletion is performed on items that may be unfavorable” (p. 23), thus biasingly assuming the content of those devices and the obstructive intent of the investigation on the part of the Attorney General.
But all of this would not have been enough to rebut the journalists’ consistent statements that they had access to the February 2, 2024 email hours or days before the Attorney General, so he could not have been the one to leak it. With those statements, one would have to dismiss the case even under the majority’s standard of proof. Therefore, it is essential for the majority of the Court of Appeals to cast doubt on those statements. It does so by asserting, on the one hand, their lack of credibility and, on the other, emphasizing “that the journalists who claimed to know or have seen the February 2, 2024 email have invoked their right to professional secrecy, which deprives their statements of any possibility of corroboration, objectively limiting their probative strength” (p. 16). In other words, the coincidence of journalists from five media outlets with different ideologies is not a reliable evidentiary element because they refused to reveal their sources. Only remains to say that all of them are lying to defend the Attorney General from a crime we already know he committed.
Unfortunately, these untenable arguments not only trample the rights of the defendants but also contribute to the discrediting of institutions, starting with the Supreme Court itself.
