Contamination of evidence due to the nullity of telephone taps
Unlawfully obtained evidence
Doctrine of the fruit of the poisonous tree
Exclusion of evidence
Projection of the suppression of a previous act onto a subsequent act
RULING Nº 198/04
24 of March of 2004
The constitutional principle of guarantees in criminal proceedings (Article 32 of the Constitution) comprises a general clause embracing all the guarantees deriving from the principle of complete, comprehensive protection of the rights of the defence in criminal proceedings (which indubitably includes all the requisite and appropriate rights and instruments to ensure that accused persons can defend themselves against and deny the criminal charge). The right of access to evidence which is unlawful in terms of important constitutional values and which is excluded from the proceedings must constitute one of the rights of the defence. The "procedural formality requirement" is eminently applicable here. One further question is, aside from the invalidity of the rejected pieces of evidence, whether these ("all") "safeguards for the defence" also include the affirmation of the "remote effect" of the said invalid evidence on other valid pieces of evidence.
The purpose of a provision to the effect that the invalidity of the rejected document extends to all other documents depending on it or which it may affect (Article 122.1 of the Code of Criminal Procedure) is to pave the way for the underlying subject of the so-called "forbidden fruit" doctrine (Fernwirkung des Beweisverbots or "fruit of the poisonous tree"). Comparison with the scope of the safeguards for the defence as set out in Article 32 of the Constitution has led the Constitutional Court to consider that there are indeed certain situations involving the "remote effect" which constitute one of the aspects guaranteeing the lawfulness of criminal proceedings. These situations can demonstrate whether the natural link established on a case-by-case basis between invalid evidence and subsequent evidence is also an "illegal" link providing the basis for the "remote effect" or whether, on the contrary, the subsequent evidence is so independent from the invalid evidence that it differs from it in substantive terms.
The "fruit of the poisonous tree" doctrine is used to extend the "exclusion rule" to pieces of evidence that derive from other evidence. Nevertheless, since the very beginnings of this doctrine, such an extension of invalidity has been qualified by a series of circumstances in which the derivative evidence ("derivative" because linked to the invalid evidence) may nonetheless be admissible as valid evidence. After accumulating a great deal of relevant case-law, the Supreme Court of the United States of America has pinpointed the special circumstances in which derivative evidence must be excluded from the specific effect of the "fruit of the poisonous tree" doctrine. These circumstances basically break down into three categories: "independent source limitation", "inevitable discovery limitation" and "purged taint limitation".
The doctrine at issue facilitates a wide-ranging reflection on actual situations, that is to say an interpretation, which is far from justifying, through its mere mention, the sole option of invalidating all the pieces of evidence that follow on from an unlawful piece of evidence. On the other hand, the doctrine's aim is to identify model decisions based on criteria consistent with the balancing of interests, which, in certain circumstances, justifies extending the invalidity of a prohibited piece of evidence and, in others, rejects such an extension. For instance, when interpreting Article 122 of the Code of Criminal Procedure in the light of the "fruit of the poisonous tree", we must look for relations based on the creation of dependence or effect which, being based on rational criteria, necessitate extending the negative values attaching to the previous piece of evidence.
The constitutional appeal concerns Article 122.1 of the Code of Criminal Procedure (CCP). Nevertheless, the alleged unconstitutionality takes a specific form: the unconstitutional point at issue concerns the interpretation or recognised scope of a specific legal provision in the decision complained of, rather than the provision as expressed in a declarative interpretation. That being the case, the investigation into the unconstitutionality in question presupposes determining the interpretation of the provision which is the subject of the accusations of non-conformity with the Constitution, as well as the meaning ascribed to this provision in the decision complained of.
The starting point was a court decision declaring null and void a piece of evidence produced during the preliminary investigations, which had involved intercepting a number of telephone calls. This declaration had led to a court ban on the use of those tapped telephone calls in evidence. Subsequently, the Court of appeal ruled that the "remote effect" deriving from the nullity of the tapped calls had to be interpreted (meaning that Article 122.1 CCP had to be interpreted) as follows: firstly, nullity (the "remote effect") did not prohibit using the outcome of straightforward consideration of the facts as they stood; secondly, the invalidity of the tapping procedure did not affect the cogent data; thirdly, the said nullity did not undermine the evidence as "transformed into a tangible object"; and fourthly, the nullity of the phone tapping procedure did not affect the status of the defendant's voluntary confession.
Apart from the judgment (in this constitutional appeal), the factual presuppositions in the decisions and the correspondence between the facts and the law deemed applicable, the Constitutional Court is only responsible for appraising the provision as interpreted and ascertaining whether the latter is compatible, in these circumstances, with the constitutional rules relied on. In other words, it is incumbent on the Court to assess the constitutionality of the provisions of Article 122.1 CCP, interpreted as authorising the use (in view of the nullity/invalidity of the phone tapping procedure conducted) of other separate, ulterior pieces of evidence where such pieces of evidence consist in declarations by the defendants themselves, particularly confessions by the latter.
The point at issue is therefore the use of evidence consisting in a confession or, more broadly, significant statements made by the defendants themselves. Such a piece of evidence (confession) functions as a veritable paradigm for an independent subsequent piece of evidence, because in fact it derives from a voluntary act by a person who has been informed of the significance of any statements he or she may make (the evidence in question was produced during the reading of the judgment) and who, lastly, is assisted by counsel. The applicant party had previously (during the adversarial proceedings) challenged the lawfulness of the telephone tapping procedure, and their arguments on this point had been accepted by the trial court.
The whole instant case therefore hinges on the interpretation of Article 122.1 CCP and the relationship between a piece of evidence which takes the form of a confession and another, prior piece of evidence deemed invalid and which is corroborated by a phone tapping procedure. In connection with the former aspect, the legal opinion to the effect that the "remote effect" is an interpretation which, under certain conditions, suggests that the legal bases for invalidating a piece of evidence subsist and must consequently be extended to any subsequent piece of evidence; under other conditions, it is acceptable to reject this possibility. As for the confession itself, it has been considered that such admissions are sufficiently independent to permit an access to facts, which is completely separate from any other access to evidence that has emerged previously and been rejected.
In conclusion, the interpretation of Article 122.1 CCP to the effect that it allows the Court to take account of the significance of subsequent pieces of evidence because it does not declare the latter invalid where they consist in statements taking the form of a confession, is compatible with the Constitution.