The Civil and Criminal Chamber of the Superior Court of Justice of Andalusia (TSJA) has agreed to reduce from four to three years the prison sentence imposed by the Provincial Court of Seville on a Civil Guard officer convicted of providing his ex-brother-in-law, in exchange for a "gift or financial remuneration", information linked to motor vehicle license plates obtained from the internal databases of the Armed Institute, reserved for the exclusive use of its members. The Andalusian high court upholds the conviction for passive bribery, but acquits him of the offense of discovery and disclosure of reserved data, for which he had been given one year in prison after the guilty verdict issued by a popular jury.
In the ruling, dated October 28 and released by the TSJA Communication Office, the magistrates partially uphold the appeal filed by the Civil Guard officer's defense against the Seville Court ruling. That decision declared him the perpetrator of an offense of passive bribery and imposed three years in prison, a fine of 2,160 euros and special disqualification from public employment or office for nine years. In addition, it sentenced him for an offense of discovery and disclosure of secrets to another year in prison and payment of a second fine of 2,160 euros, the latter ruling now being overturned.
The Provincial Court also convicted his ex-brother-in-law as the perpetrator of an offense of active bribery, imposing three years in prison and payment of a fine of 2,160 euros. This conviction is fully upheld by the TSJA.
The popular jury found proven that both defendants maintained between July 27 and September 25, 2023 "a relationship of friendship that had been forged since years earlier," noting that the second of the defendants had been married to the agent's sister until 2005, the year the divorce took place.
According to the verdict, "that relationship made" the accused citizen "aware" that the Civil Guard officer, "by reason of his position and posting, had access to the different databases used by members of the Traffic Civil Guard previously authorized," specifying that the databases to which members of the Civil Guard have access by reason of their position or employment "are protected and audited sources of information whose use is exclusively for the performance of the functions assigned to the State Security Forces and Corps by competence".
In relation to these applications, "in any case, users who access them are warned", when opening them, with the message "you are accessing a computer application that contains legal rights protected by the regulations on the protection of personal data. All operations carried out in the system are audited. Access and/or improper use of this application is conduct deemed punishable by Law".
The trial court ruling stated that the convicted officer "was aware of the duty of confidentiality that he had to maintain with respect to the information that was recorded in the Guardia Civil databases and of the prohibition on accessing that information or using it for purposes other than strictly professional ones", adding that, in 2023, his ex-brother-in-law "was carrying out paid work" for a private investigation agency, "and for that task he was interested in obtaining data associated with certain motor vehicles, such as the identity or address of their owners, insurance and ITV".
In this way, and "knowing" this defendant that "such information was contained in the Guardia Civil databases for the exclusive use of its members for professional purposes, he asked" the accused civil guard "to provide it to him", offering him in return "a gift or financial remuneration". The judgment details that the officer, "despite being aware of those duties and prohibitions, the information being requested" by the other investigated person, "was willing to provide it in exchange for a gift or financial remuneration".
The jury considered it proven that the civil guard "provided the information on the identity, ID number and address of vehicle owners, and their insurance and ITV, knowing that he needed it, at least in part, for the work or collaboration he was carrying out in a private investigation agency". To obtain that data, the officer "approached other colleagues in the Guardia Civil so that they would provide it to him", so that "the fact that the requested data was obtained from other colleagues prevented" him "from being recorded in the computer system as the requester of the information".
The ruling of the Audiencia also detailed the list of license plates and the information associated with motor vehicles that appeared in the Guardia Civil databases and that the officer transmitted to his ex-brother-in-law, "upon the latter's request", between July 27 and September 21, 2023.
Acquittal for the crime of disclosure of secrets
In the appeal briefs, according to the TSJA, "there is no dispute either about the obtaining of the information referred to, or about the manner of obtaining it, or about its transfer" by the civil guard to the other accused, "but it is disputed whether there had been an offer or request of consideration or gift (which conditions the classification as bribery), as well as the criminal relevance of the obtaining and transfer of the information referred to because of its harmlessness and because of its being accessible to the public through the DGT website".
At this point, the agent's defense argued that the conduct lacked harmfulness, "since neither has it been alleged nor proven nor included in the statement of facts the existence of harm to the data subject or to a third party due to the improper use of the same". The TSJA shares this approach and underlines that "in the present case no individualized effects for third parties have been alleged or, of course, proven".
While the defenses "tried to give explanations about the harmlessness of a large part of the queries, since they concerned data to facilitate certain procedures and formalities", the prosecution "did not provide any evidence that the use of the data obtained with any of the queries put at risk the privacy or legitimate interests of the data subject or of third parties, and this prevents resorting to the criminal remedy for conduct that would not even have activated the civil remedy of compensation, and not because of the lack of consummation of the damage, but, we insist, because not even a specific and individualized risk derived from the data leak had been alleged". For all these reasons, the TSJA acquits the civil guard of the crime of discovery and disclosure of secrets.
The TSJA upholds the conviction for bribery
On the contrary, the court does confirm the criminal liability of both for bribery. In the opinion of the Chamber, "the set of conversations" exchanged by whatsapp between the two accused "indicates circumstantially the existence of payments or offers and requests for moderate amounts of money related to the favors that repeatedly" his ex-brother-in-law asked of the agent, "and the jury's assessment in the exercise of its competence we cannot in any way qualify as unreasonable".
"There is, therefore, no error in the evaluation of the evidence, nor violation of the presumption of innocence, nor infringement of the duty to motivate the verdict", states the TSJA, which concludes that the man convicted of active bribery offered the civil guard "some amounts of money in exchange for favors related to the consultation of vehicle data in the police database".