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Spain: lawyer condemned at Supreme court for defamation

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The Spanish Supreme Court upholds the condemnation to pay €9,000 in damages against a lawyer for violating the right to honour of the judge

Article by: Enrique de la Llave

The lawyer Marcelo Enrique Daghero has to compensate the magistrate Joaquín Gadea Francés, territorial assignment judge in Madrid -currently on secondment as reinforcement judge in the Central Court of Instruction 6 of the Audiencia Nacional- with the 9,000 euros to which he was condemned in first and second instance for having violated the right to honour of Gadea Francés.

At the time of the facts, he was the head of the Court of First Instance 1 of Tarragona and dean of these judicial bodies.

The Civil Chamber of the Supreme Court composed, in this case, by the magistrates Francisco Marín Castán, as president, Ignacio Sancho Gargallo and Rafael Sarazá Jimena -opponent- confirmed the conviction on October 25, by dismissing the appeal of the lawyer Daghero, which was prepared by the lawyer himself.

This was expressed by the three judges of the High Court in sentence number 177/2021, which now has to be executed with the consequent payment of the said amount to the judge Gadea Francés, defended in the cassation by the lawyer Gregorio Arroyo Hernansanz.

An amount that they understand that “is not disproportionate”.

The origin of the lawsuit of the magistrate Gadea Francés against the lawyer Daghero is found, first, in the complaint/complaint that in March 2016 the lawyer filed before the promoter of the Disciplinary Action of the General Council of the Judiciary (CGPJ) against the magistrate and against Francisco Javier Sánchez, the judicial counsel of that Court.

Daghero blamed both for their refusal to process the appeals filed in which he was a party, claiming that such action met the elements of the crime of prevarication and the crime of breach of custody of documents committed by an authority or public official and its penalties.

The promoter of the disciplinary action of the CGPJ, Ricardo Conde, after gathering information on the facts, issued an agreement on June 1, 2016, filing the informative diligence and renouncing to initiate disciplinary proceedings upon finding that there had been no delay or irregularity that could be reproached to the organ or its holder.

As a result of that setback, on June 20, 2016, Daghero filed a complaint before the Civil and Criminal Chamber of the Superior Court of Justice of Catalonia (TSJCat) against Judge Gadea Francés for the alleged crimes of fraudulent judicial malfeasance, obstruction of justice and concealment.

He also charged a substitute judge and two prosecuting attorneys. He also requested compensation of 24,000 euros.

The TSJCat, competent due to the magistrate’s privileges, did not admit the complaint, explaining, notably, that when the lawyer’s resolutions were not favourable to him, “he reacts with the filing of complaints against the aforementioned magistrates and prosecutors, which are clearly unfounded”.

LAWSUIT FOR PROTECTION OF THE RIGHT TO HONOR

After that decision of the TSJCat, Gadea Francés filed a lawsuit for the protection of his right to honour against the lawyer Daghero before the Court of First Instance, which ruled in his favour. There had been a clear violation of his right to honour.

The same result was obtained by the collegiate court of the Third Section of the Provincial Court of Tarragona, to which the lawyer appealed. The Court upheld the sentence of 9,000 euros in compensation, including costs.

In both instances, the lawyer also defended himself.

The Civil Chamber of the Supreme Court ruled in the same direction as the first and second instance.

Moreover, it did so in very harsh terms towards the lawyer. Something that bordered on querulation -although not expressly mentioned by the court-, which is the hostile and vindictive reaction of subjects who believe they have been injured and consider that the damage has been underestimated.

“The Superior Court of Justice of Catalonia, in view of the documentation presented with the complaint [of the lawyer], understood that the actions of the appellant today responded to a strategy of formulating accusations, in criminal and disciplinary proceedings, against how many judges and prosecutors intervened in the criminal matters that affected him and ‘from this perspective imputed to them criminal offenses and partial, malicious and malicious actions,” the Supreme Court refers.

However, the documentation accompanying the complaint and the complainant’s own assertions in this regard show that he does not accept a judicial decision or an action emanating from the Public Prosecutor’s Office that is not favourable to him, and in response to this he reacts by filing complaints against the aforementioned judges and prosecutors, which are clearly unfounded […] instead of using legal defense channels, he massively accused all the professionals involved in the Administration of Justice in the cases that were successively opened,” he adds in point eight. instead of using the legal defense channels, he massively accused all the professionals of the Administration of Justice who intervened in the cases that were successively opened”, he adds in point eight.

THE LAWYER ACCUSED THE MAGISTRATE WITHOUT A MINIMUM REASONABLE BASIS

Judges Marín Castán, Sancho Gargallo and Sarazá Jimena emphasize the disproportion of the accusations.

“The accusations of the defendant attorney attributed to the plaintiff -the magistrate- a conduct of a criminal intensity disproportionate to the reality of the facts.”

“The defendant not only made criticisms of the judicial actions (…) with which he disagreed, describing them as contrary to law,” says the judgment, but also accused “the plaintiff of prevarication, even malicious prevarication, as he considered his decisions unjust and illegal,” they write.

The lawyer accused Judge Gadea Francés and the other defendants of “conduct as serious as obstruction of justice”, of “having concocted from the Dean’s Office of the courts a plot to influence or retaliate against the defendant to modify his procedural actions”, and of “covering up crimes committed by other judges, launching the accusation that he was part of an illicit association with other judges and prosecutors”, and all “without a reasonable basis”.

HE OVERSTEPPED THE LIMITS OF FREEDOM OF EXPRESSION

The Supreme Court recalls, in its ruling, the reinforced nature of the freedom of expression of lawyers in the exercise of the right of defense.

However, “in this case, the seriousness of the conduct that the defendant imputed to the plaintiff, the disproportionality of the expressions used, their profusion and reiteration, the lack of a minimum reasonable basis for his accusations, even if only indirect” are elements that “taken together, determine that the interference with the plaintiff’s honour by the defendant is not legitimized by the exercise of freedom of expression and the right of defense”.

For the High Court, the legitimacy granted by the exercise of the right of defense to a lawyer who makes accusations as serious as these against a judge is lost when – as in this case – the lawyer substitutes the use of the means of challenging the decisions of the judges that are unfavourable to him.

These are the means provided for in the procedural legislation through appeals. Opting for a strategy of systematic denunciation “in disciplinary and criminal proceedings, of those judges and prosecutors who, in the exercise of their functions, carry out actions that affect him unfavourably, formulating against them serious accusations lacking a minimum basis”.

Originally published in Spanish here.

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