Last March, a Madrid court convicted the editor of the news website Periodista Digital, Alfonso Rojo, of violating the right to honour of lawyer Gonzalo Boye. The Provincial Audience of Madrid considered that Rojo had exceeded the limits of freedom of expression by repeatedly labeling the lawyer as gentuza ("scum"), etarra (member of the Basque terrorist group ETA), a "criminal element", "lawyer to a buffoon", "disgraceful and dangerous type" or "dirty jailbird", among other descriptions. However, the Periodista Digital editor appealed the sentence and the Supreme Court prosecutor José Miguel de la Rosa Cortina has backed him up, arguing that the lawyer's public activity and, in particular, his defence of the leaders of the Catalan independence process provide an argument to make freedom of expression prevail over Boye's right to honour and image. In response, Boye's own defence has written to the Supreme Court, prosecutor general and justice minister accusing the prosecutor of breaching his duties of impartiality and legality. Not for the first time, asserts Boye's defence, De la Rosa Cortina has "transferred his ideological position into his job".
In the prosecutor's submission, dated December 21st, he argues that while the expressions used against the Gonzalo Boye may be hurtful and annoying, “Mr Boye is not just a lawyer." "Many of the cases in which he is involved are characterized by being extremely controversial and generating debates of high political tension, such as, for example, the proceedings against Mr Puigdemont”. Over this point, to argue that his role goes beyond that of a lawyer, the prosecutor states that Boye ran as a candidate for Junts in the European elections - in reference to the fact that he temporarily put his own name in place of that of Puigdemont until it was confirmed that the exiled politicians were able to form part of the list for the European elections. "That is, he has acted as a politician," he said.
Throughout the text, the prosecutor argues that many of the website articles which form part of the complaint were written in the context of the tension resulting from the independence process, which he describes as a situation of politics and conflict, in which, he asserts, the jurisprudence of the Supreme Court enables the right to freedom of expression to be prioritised over the right to honour. Among these high-tension episodes, the prosecutor points to the civil suit presented by Boye against the Supreme Court judge Pablo Llarena in Belgium.
Controversial prosecutor
The prosecutor José Miguel de la Rosa is an old acquaintance of the independence movement. He sparked serious controversy in October 2017 for the label he put on the press dossier of prosecution complaints against pro-independence leaders: Más dura será la caída - "The harder they fall".
This submission on Boye responds to the appeal filed by Alfonso Rojo after he and his news site were sentenced by the Provincial Audience to pay the lawyer 5,000 euros in compensation for illegitimate damage to his honour and image. He had previously been acquitted by a lower court. The sentence of the Provincial Audience forced the newspaper to publish the details of the verdict against it on its website and on social media. This court found that the repeated slurs against Boye exceeded the limits of freedom of expression.
'Cocomocho' lawyer
However, the prosecutor rejects this assessment and argues that some of the expressions that the Provincial Audience considers insulting do not have harmful connotations for the right to honour. "The term abogado de cocomocho - something like "lawyer to a buffoon" - refers to his status as a lawyer for Mr Puigdemont, to whom this nickname -"cocomocho" - was applied in various media. If the expression is considered insulting, it must be for Mr Puigdemont, not for the plaintiff", argues prosecutor De la Rosa.
The letter considers that the level of offensiveness of descriptive terms such as un personaje tan escasamente recomendable ("a character so scarcely commendable"), siniestro - "sinister" - or de por sí escalofriante, "creepy in himself" is "very minor". Other expressions which translate closely to a "disgraceful and dangerous type", "criminal element", "scum", "smooth talker", or "dirty and immoral jailbird", he argues, are not strong enough to substantiate a conviction as they are directed by a journalist to a public figure who acts as a lawyer in controversial and media cases, who has been prominent in public affairs of his own volition and who "has come to practice as a politician", in addition to having been convicted for being part of group that supported an armed organization. In the opinion of the prosecutor, this means that all the terms used must be contextualized in "an area of political criticism and within what the Supreme Court has considered as contexts of contention and conflict." In these contexts, he adds, "the jurisprudence accepts that the prevalence of freedom of expression over the right to honour is strengthened."
Boye demands that the law be impartial
Lawyer Gonzalo Boye has reacted to the submission from prosecutor José Miguel de la Rosa Cortina, by sending a letter to the Supreme Court warning that the prosecutor has breached his duties of impartiality and legality, which constitutes very serious misconduct, requiring the intervention of the prosecutor general, Dolores Delgado, to whom the letter is addressed, and even the minister of justice, Pilar Llop.
Boye's defence submission recalls that prosecutor De la Rosa was responsible for "The harder they fall" title given to the October 2017 prosecution dossier on the accusations against the leaders of the Catalan independence process. It was a title that "clearly reflects the political position" of the prosecutor, which was projected in the report, and that "only the transfer of his ideological position into his job" as a prosecutor explains the arguments he gave in response to the Periodista Digital case in his 21st December text.
"The law, as prosecutor De la Rosa Cortina is well aware, does not protect insults," warns the lawyer's defence writ, as well as arguing that "contextualizing" in the way the prosecutor does "is nothing more than an extrapolation of his own feelings ”towards Boye, thus reflecting again“ an ideological stance that separates him from his obligatory adherence to the principles of legality and impartiality”.