The First Section of the Provincial Court of Las Palmas has revoked one of the sentences against the local police officer of Arrecife Narciso Pérez and has acquitted him of the crime of revealing secrets for which he was convicted a year ago by the Criminal Court Number 1 of Arrecife, for publicly disseminating the content of emails from the City Council.
The new ruling accepts the facts that that sentence considered proven and questions the attitude of this agent and union representative, calling it "reprehensible" and even pointing out that "it would border on defamation", but concludes that what happened cannot be framed in the criminal type for which he was convicted.
In this regard, the Court points out that it is "a certainly complex criminal type, which has gone through countless interpretative vicissitudes as well as legislative reforms." Thus, after analyzing different jurisprudence, it points out that what happened does not fit into the articles of the Penal Code to which the first instance sentence referred, because it concludes that the "intimacy" of those affected was not violated. "No matter how much confidentiality is reflected in the nature of a private conversation (...) we cannot ignore the scope where they operate, within email accounts created by the same administration to which they belong so that they can develop their work through them, and therefore a priori limited to professional and not intimate issues," the ruling states.
Similarly, it does not consider that these communications - which occurred between the secretary of the City Council, the former councilor Nayra Callero and an external lawyer of the Consistory - can be "protected by professional secrecy between lawyer and client", since it understands that they exchanged legal consultations related to the institution and that they cannot be compared with "the conversations between a citizen and the lawyer who defends him in specific matters".
Therefore, the Court annuls the sentence that in November 2019 condemned Narciso Pérez to two years in prison and a fine of 3,240 euros for having disseminated those emails in the media, since it considers that his conduct is not typified in the Penal Code.
However, the ruling does agree that those emails were obtained illicitly. "Concluding, as the appealed sentence does, that the accused knew of the illicit origin of the access to those emails, is not an assertion lacking in rational sense, far from it. On the contrary, the way in which they come into the possession of the accused reveals precisely that whoever accessed them did so in a furtive and illicit way," the new sentence underlines.
In this regard, the first instance ruling had described as "striking" and lacking in "credibility" the version of the accused about how he accessed those emails, since he claimed that he found them in a garbage container near the City Council, after someone left an anonymous note in his locker indicating where he should look. For its part, the Provincial Court concludes that "regardless of all the possible alternatives" about how he really got those emails, the "illegality" of the origin does not necessarily imply a crime (unlike what happens for example with the crime of receiving stolen goods, for which someone who acquires stolen objects is condemned), since in this case it has not been proven who got those emails in the first instance nor, above all, how he obtained them.
However, the sentence describes as "questionable", "unjustified" and even "incomprehensible" what Narciso Pérez did later with those emails, which he used to disseminate them in the media and to even insinuate alleged "criminal" behaviors, coinciding with the "bitter disputes" he had with the councilor who intervened in them.
In this regard, the Court not only recalls that there is no open criminal case as a result of the content of those emails - which rules out the theses that Narciso Pérez publicly maintained - but also underlines that the agent did not even go to the "competent authority" - that is, "judicial, fiscal or police authority" - to carry out investigations if he had any suspicion.
"If it is already highly questionable that the accused arrogates the power to determine what may or may not be constitutive of a crime, what is clearly unjustified is that instead of going to the authority in charge of investigating it, he goes to two radio stations to disseminate them," the Court underlines. In addition, it raises that as a police officer "his conduct is extremely reprehensible", since he should have known that with this he could have harmed an eventual investigation, in case there really had been something to investigate.
"This deepens that in reality he cared little about investigating the criminal plot beyond acting moved by the bitterness with some of those interlocutors, who submitted to a kind of public scrutiny that would border on defamation, stopping us in such an assertion as no accusation has been formalized for crimes against honor," the ruling states, pointing out that the facts could have been framed in that crime, which was not included among those that were denounced at the time.