Spain: The Constitutional Court’s Move from Categorical Exclusion to Limited Balancing

Abstract

Spain inherited the French tradition of “nullities” but, since the end of the Franco dictatorship and the passage of a new constitution in 1978, a doctrine of evidentiary exclusion has developed which is perhaps the most rigorous in Europe. The move from dominance of the “search for truth” to emphasis on the protection of constitutional rights began with a decision of the new Constitutional Court of Spain in 1984, in which it held that violations of fundamental constitutional rights should lead to exclusion of evidence gathered as a result thereof. This decision led to the enactment of a law in the Judicial Code, which required exclusion of any direct and derivative evidence gained from violation of fundamental rights, that is, a clear adoption of the doctrine of the “fruits of the poisonous tree”. This Chapter documents this development and the application of the doctrine to violations of the right to privacy and to illegal confessions, but also lays out some subtle changes in the approach of the Constitutional Court which were triggered in a decision of 1998, where the court required trial courts to engage in a kind of balancing before it found whether evidence gathered following a fundamental violation was linked to the violation by a “nexus of illegality”. This has opened the door to exceptions to the earlier regime of nearly absolute exclusion in cases of constitutional violations.