Exclusion of Evidence: Telephone Taps
| DOI | 10.1350/jcla.2006.70.3.211 |
| Date | 01 June 2006 |
| Published date | 01 June 2006 |
| Author | Michael Bohlander |
| Subject Matter | Tribunal Supremo, Sala De Lo Penal (Supreme Court of Spain, Criminal Division) |
Tribunal Supremo, Sala de lo Penal
(Supreme Court of Spain, Criminal
Division)
Exclusion of Evidence: Telephone Taps
Judgment of 15 March 2005, Case No. 336/2005
Judgment of 13 April 2005, Case No. 463/2005
In these two cases, the Tribunal Supremo took issue with phone-tapping
authorisation orders handed down by investigating judges (‘juez in-
structor’) in cases dealing with the prosecution of serious drug offences.
In one of the two proceedings, the amount of heroin smuggled was 26
kg, a very large amount with an astronomical street value. In both cases,
the bulk of the prosecution evidence linking the accused to the offence
essentially consisted of phone conversations recorded on the basis of
these authorisation orders. The trial courts in both instances used the
evidence to convict the accused and to sentence them to long prison
terms. The defendants appealed the cases by way of cassation to the
Tribunal Supremo and argued that the phone-tapping orders violated
their right of privacy, and in consequence, that the convictions infringed
the presumption of innocence, because they were based on inadmissible
evidence, without which there would be no case to answer.
H
ELD
,
QUASHING BOTH CONVICTIONS
,
WITHOUT THE REQUIREMENT OF A
RETRIAL
,the phone-tapping orders were not sufficiently specific and
appeared more or less merely to rubber-stamp the applications by the
police. In Case No. 463/2005, the court said under No. 4 of the ‘Funda-
mentos de derecho’ (the part of the judgment setting out the legal
evaluation of the case), ‘Que, en la práctica y por su carácter sólo ritual
y burocrático, cumplen el mismo papel que una estampilla que sobre el
oficio policial dijera:’ejecútese’ [In practice, by their merely ritual and
bureaucratic character, they serve the same purpose as a rubber stamp on
the police file that says: ‘Execute!’] (emphasis added). In that case, the
justices even expressly acknowledged that the police had acted pro-
fessionally and in good faith, but then, in an act of scathing criticism of
their judicial colleagues, went on to say that the same could not be said
of the actions of the investigating judges, which it termed ‘disgraceful’
and attesting to a ‘lamentable lack of rigour’, in the case of one of the
judges even ‘extremely’ so.
C
OMMENTARY
It would be a strange reflection on our law if a man who has admitted his
participation in the illegal importation of a large quantity of heroin should
have his conviction set aside on the grounds that his privacy has been
invaded.
211
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