Invalid Evidence in Spain: Defence and Nullity

A police measure without judicial authorisation, a home search without valid consent or a telephone interception without sufficient reasoning may completely change the course of a criminal case. The nullity of evidence is the legal tool that allows elements obtained in breach of fundamental rights to be excluded from the proceedings. Knowing when it applies and how it is challenged is decisive for any person under investigation or accused in Spain.

What is the nullity of evidence and where is it regulated?

The nullity of evidence is the procedural sanction that prevents evidence obtained in breach of fundamental rights or freedoms from being assessed at trial. Therefore, it is not enough for the evidence to be merely irregular: it must affect constitutional guarantees such as the inviolability of the home, the secrecy of communications or the right of defence.

The main legal basis is found in Article 11.1 of the Organic Law on the Judiciary, which provides that evidence obtained, directly or indirectly, in breach of fundamental rights shall have no effect. It is also connected with Article 24.2 of the Spanish Constitution, which recognises the fundamental right to a trial with all guarantees.

Consequently, we speak of unlawful evidence when such a constitutional breach exists. By contrast, irregular evidence only affects ordinary procedural rules and is usually capable of being remedied. It should also be noted that case law distinguishes derivative effects: the “fruit of the poisonous tree” doctrine extends nullity to derived evidence connected to the original unlawful evidence.

Practical cases where evidence is challenged

In forensic practice, the scenarios that give rise to challenges to evidence are numerous and easily recognisable. For example, home searches authorised with insufficient reasoning, telephone interceptions extended without effective judicial control, or arrests in which the right to legal assistance under Article 520 of the Spanish Criminal Procedure Act has not been respected.

Conflicts also frequently arise in relation to self-incriminating statements made without a lawyer, irregular police identifications or broken chains of custody in DNA evidence, narcotic substances or electronic devices. In these cases, the defence must analyse the police report in detail and identify the exact point at which the breach occurred.

The most frequent case: searches and intercepted communications

Unlawful evidence linked to home searches and telephone interceptions accounts for most challenges. In these cases, the enabling court order is examined: if it lacks reasoning, if the indications were mere conjecture or if extensions were granted without effective control, nullity should be requested.

Therefore, an effective defence requires an extremely precise technical review of court orders, police communications and procedural deadlines.

How evidence is challenged: procedure and defence strategy

The nullity of evidence may be raised at different procedural stages, depending on when the breach is detected. During the investigation stage, it may be raised by written applications requesting the removal of the unlawful material from the case file. At the intermediate stage, it may be included in the defence brief when submitting the legal classification. It may also be raised as a preliminary issue at the beginning of the oral trial, pursuant to Article 786.2 of the Spanish Criminal Procedure Act in abbreviated proceedings.

The criminal defence lawyer therefore identifies the specific breach, substantiates the connection of unlawfulness with the derivative evidence and submits the request before the competent court. Consequently, if nullity is dismissed, it may be raised again on appeal or cassation before the Provincial Court or the Supreme Court.

At Fechenbach Abogados, we regularly deal with this type of procedural issue. David Fechenbach Marcos, criminal defence lawyer registered with the Madrid Bar Association, ICAM No. 122770, conducts cases in which challenging evidence is decisive for the outcome of the proceedings. Each case requires an individualised review of the police report and of the judicial orders authorising the investigative measures.

Consequences of failing to challenge unlawful evidence in time

Failing to act quickly when potentially unlawful evidence exists has significant procedural consequences. If nullity is not raised at the required procedural moments, the court may consider the issue precluded and assess the evidence in the judgment. Therefore, a technical omission may result in a conviction based on evidence that should have been excluded from the proceedings.

In addition, procedural deadlines are strict. However, intervention from the moment of arrest makes it possible to monitor compliance with the maximum 72-hour detention period under Article 17.2 of the Spanish Constitution and the right to legal assistance under Article 520 of the Spanish Criminal Procedure Act. Consequently, specialised technical defence from the very beginning makes it possible to preserve procedural guarantees and build the defence strategy using all available tools.

Contact Fechenbach Abogados

If you are under investigation or accused in criminal proceedings and suspect that evidence has been obtained in breach of your rights, Fechenbach Abogados can analyse your case with technical rigour.

We have offices in Madrid, Ibiza and Cádiz. Contact us without obligation and we will assess the available grounds for challenging the evidence.