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

Exclusionary Rules in Comparative Law

“…158 The problem with the term "fairness" is, as Chalmers notes, its malleability. 161 It is regrettable (yet perhaps unsurprising) that aside from the issue of confessions obtained in the absence of legal assistance, the ECHR has failed to have much of an impact in this regard, itself focussing on the fairness test, albeit in a different guise: that of what constitutes a "fair" trial. 160 There is little doubt that, although at one point lauded elsewhere, the Scots approach to illegally obtained evidence is in need of a more concrete basis.…”

“…159 The Scottish courts also occasionally refer to whether there was bad faith on the part of the police in deciding whether to exclude. 161 Here we see an incorporation of the "good faith" rule articulated in Leon in relation to wiretaps, a step even the USSC has not yet taken. In 1998 the Spanish Constitutional Court allowed for a "good faith" exception to the otherwise categorical exclusionary rule codi fi ed in § 11.1 LOPJ-Spain.…”

“…169 Since the aforementioned Constitutional Court decision in 1998, Spain's courts now engage in a balancing test to determine whether to exclude the fruits of a constitutional violation and the test is framed in terms of a limitation on the doctrine of the "fruits of the poisonous tree". And it is here that the famous exception of "attenuated taint", and its closely related subcategories "inevitable discovery" or "independent source", are invoked to admit arguably derivative evidence.…”

Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

“…It is unsurprising that several countries reject this broadening of the exclusionary rules, which they consider to be too far-reaching, as is the case for instance of Germany and Italy (Gless, 2018: 173; Weigend, 2007: 254). There are, however, jurisdictions (such as Greece) which are shown to be open to the exclusion of the ‘venomous fruits’ albeit to a different extent (see, for instance, Greece and Spain; Giannoulopolous, 2019: 32; Winter, 2013: 215).…”