The recent ruling of the Constitutional Court, of 16 July 2019, resolves appeal No. 1805/2017, which was filed by a person convicted in a criminal case as the author of two crimes against the Treasury, with civil liability of EUR 2,842,304.08. The conviction was based decisively on economic data which a then employee of the banking entity HSBC Private Bank Suisse had taken without authorization. The information was found after searching his French home and the French tax authorities passed it on to the Spanish tax authority.

The appellant seeking constitutional protection of fundamental rights alleges a violation of the fundamental right to a fair trial and right to the presumption of innocence, arguing that the economic data had been obtained illegally, violating his right to privacy.

The Court recalls its own doctrine on the constitutional significance of illegal evidence, noting:

  • Giving probative force to evidence obtained in violation of fundamental rights does not, in itself, constitute a violation of fundamental rights.
  • The claim to exclude illegally obtained evidence is of a strictly procedural nature and must be addressed vis-à-vis Article 24.2 of the Spanish Constitution.
  • The violation of Article 24.2 of the Spanish Constitution must be determined by means of a weighted judgment aimed at ensuring the integrity of the proceedings and equality of arms.

Constitutional doctrine has established a double trial to weigh up conflicting interests against illegally obtained evidence. In this respect, it must be first proven that the violation of the fundamental right is committed when the evidence is obtained and, secondly, there must be an examination of whether including such evidence implies a breach of the procedural balance between the parties and a breach of the integrity of the proceedings, with a view to seeking procedural advantages.

To assess the specific need for protection of fundamental rights in the procedural scope and the exclusion of evidence, the Court uses two parameters:

  • The "internal" oversight, in which the effect on the proceedings of the "nature, characteristics and degree" of the violation is assessed.
  • The "external" oversight, which requires assessing whether or not there are general needs that discourage the commission of the violation and affect the criminal proceedings.

Applying this doctrine to the case, the Constitutional Court, without considering the recognised violation of the fundamental right to privacy, concludes that the Supreme Court's decision according to which Article 11.1 of the Organic Law of the Judiciary does not refer to any violation of fundamental rights, but to the prohibition of instrumentally using investigative means that violate fundamental rights is compatible with the legal guarantee provided for in Article 24.2 of the Spanish Constitution.

Accordingly, it considers that if the violation of the fundamental right was not aimed at gaining an evidentiary advantage in the proceedings for which the evidence was provided, there is no provision for inadmissibility of the evidence or any other impact on the proceedings in question without prejudice to the right of the parties concerned to bring separate civil or criminal proceedings for the facts leading to the violation of the fundamental right.

Therefore, the Court considers that the invasion of privacy has no instrumental, objective or subjective connection with investigative actions carried out by Spanish authorities. The Court also states that the disputed data is only the existence of a bank account and the amount paid into it and, consequently, the invasion of privacy is not such that it merits extending the need for legal protection of substantive law to the criminal proceedings.

Lastly, the Court highlights the fact that the admission of evidence does not imply a certain risk of encouraging practices that may compromise the effectiveness of the fundamental right at stake in the Spanish legal system, since in Spain, the authorities' obtaining banking data in order to carry out tax or criminal investigations is provided for in law and is possible via ordinary procedural instruments.

It can therefore be concluded that, from the perspective of Article 24.2 of the Spanish Constitution, Article 11.1 of the Organic Law of the Judiciary does not impose a restrictive rule on inadmissibility of any corroborating evidence arising from a violation of fundamental rights, but rather allows there to be a balance between the decisive act of infringing the fundamental right and the procedural rights of the parties, from the perspective of a fair and equitable trial, in order to decide whether the admission of evidence is appropriate.

This doctrine could be applied in similar future cases.

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