When the violation of privacy does not invalidate the evidence: Commentary on Supreme Court Judgment 1189/2024
One of the decisive factors for the Spanish Supreme Court when tipping the balance in assessing the legality of evidence obtained with a potential violation of fundamental rights lies, perhaps surprisingly, in the subjective position of the agent who carried out the intrusion. It is not irrelevant — though it might seem so from a strictly formal perspective on rights — whether the person accessing content protected by the right to privacy is a private individual driven by personal motivations unrelated to criminal proceedings, or a legal operator, public or private, acting with the intention of obtaining procedural advantage. This distinction, as emphasised by the recent Supreme Court Judgment 1189/2024 of 20th January 2025, is not only decisive, but sits at the very heart of the criterion that separates unlawful evidence from admissible and usable evidence within proceedings.
The issue addressed by the Supreme Court concerned revolved around the evidentiary validity of a USB stick found by the accused’s wife inside his rucksack, which she handed over to the police. The device contained videos and photographs of minors in sexually abusive situations, recorded and stored by the accused himself, and these materials formed the basis of charges for sexual abuse and the production of child pornography. The defence argued that the wife’s actions infringed upon the right to privacy (Article 18.1 of the Spanish Constitution), and that, as a result, the legal consequence set out in Article 11.1 of the Organic Law on the Judiciary should apply: the exclusion of the evidentiary value of the discovery and, by extension, of all derivative evidence.
However, the Court rejects this conclusion. The key reason is that the wife’s actions, however invasive, were entirely devoid of any procedural purpose. She was not acting as an agent of the State, nor as a party with vested interests in litigation; she did not seek to gather evidence for judicial proceedings, nor did she have any immediate defensive or accusatory strategy in mind. Rather, she was motivated by personal reasons. And it is precisely this subjective motivation — external to the process — that underpins the jurisprudential doctrine allowing the evidence to be used. Her actions may be morally or even legally reproachable in other jurisdictions, but that alone does not lead to procedural nullity if there is no instrumental link to gaining advantage in the criminal proceeding.
In addition, the Court pauses for a deeper reflection: the exclusionary rule is not some sort of automatic mechanism applied blindly whenever a fundamental right is infringed. It is, in reality, a safeguard of due process, designed to prevent abuse, to preserve equality between the parties, and to deter legal actors — particularly public authorities — from resorting to rights-infringing shortcuts to obtain evidence. But when the origin of the interference is unrelated to the proceedings, when there is no sign of an attempt to influence the position of the parties at trial, triggering the exclusion clause lacks constitutional justification. It would be, in the Court’s own words, a disproportionate application of a tool that should only operate when it is necessary to preserve the integrity of the proceedings, not as a reflex response to any intrusion into privacy.
Thus, Supreme Court Judgment 130/2025 forms part of a line of case law that seeks to ensure the effective protection of fundamental rights without overlooking the need for balance with other legal interests of equal standing, such as the victim’s right to effective judicial protection or the public interest in prosecuting particularly serious crimes. It is not a matter of lowering protection standards, but rather of applying the exclusionary rule in its true sense: as a barrier against the improper use of evidence obtained in conditions incompatible with a fair trial.
To this reasoning, the Court adds a second, no less important, line of argument that reinforces the validity of the evidence from a judicial perspective. The subsequent analysis of the contents of the USB stick was authorised by an order from the investigating judge, who explicitly permitted access to the devices due to the presence of clear indications of a child pornography offence. The defence attempted to argue that this order did not cover evidence relating to the sexual abuse charges, which were ultimately also prosecuted. However, the Court recalls that when lawful access is granted to a digital file containing evidence of a crime, and that same file also reveals — directly and foreseeably — the commission of other criminal offences of a similar nature, no further specific judicial authorisation is required. The evidence remains valid because it falls within what can reasonably be expected and because the initial access was lawful. In this context, there can be no talk of a chance discovery or of investigative overreach.
In short, the judgment not only upholds the conviction based on the contested evidence — affirming the sufficiency of the judicial order that authorised it — but also offers a lesson in constitutional balance: not every violation requires exclusion, and not every exclusion serves the cause of justice.
Rania Zitouni
Internal Investigations Department – Molins Defensa Penal