In its judgment, the Supreme Court examined in detail the admissibility of pre-trial evidence. Specifically, the Defence argued for the inadmissibility of declarations provided by a protected witness that did not attend court sessions. It contended that there had not been an exhaustion of all means to ensure the presence of the witness in court or his or her statements by videoconference. In response, the Supreme held as follows:

• Pre-trial evidence, duly documented and obtained in compliance with the principle of contradictory, is admissible in court if reasonable measures to ensure the presence of the witness in court were taken (even though ultimately with no success, as in the present case). The rights of the accused and principles of due process will not be breached if such conditions are fulfilled (e.g. witness interviewed in presence of the Prosecutor, investigative judge, and legal counsel).
• If the Defence did not question the witness at the time of the pre-trial hearing for reasons imputable to itself, it may not later invoke this argument to challenge the admissibility of pre-trial evidence. Importantly, the constitutional protection refers to the possibility of exercising the contradictory rather than occurrence of contradiction.

 

The Supreme Court further clarified that the information provided by investigative authorities to the victims/witnesses regarding the possibility of obtaining residence permit were they to collaborate in the context of proceedings does not amount to witness tampering. Accordingly, it is not per se a valid motive to challenge the admissibility of evidence provided by such victim/witness.

 

The Supreme Court assessed indicia of the knowledge and willingness to commit the crime. It noted that the behaviour of a recidivist offender that repeatedly illegally enters the territory of the State concerned then endeavouring to be expelled to his country of origin so as to again procure the illegal entry of migrants in another country (as part of a structured modus operandi) provides important indication of mens rea.

 

Finally the Supreme Court dismissed the argument that alleged economic difficulties of the defendants could consubstantiate a state of necessity and, consequently, exculpate their criminal responsibility. In so concluding, the Court explained that in order to invoke a state of necessity it is necessary: (i) an objective, inevitable, unfair, illicit and impending harm that cannot be avoided without committing the offence, (ii) proportionality of the harm caused in order to prevent the feared harm, (iii) exhaustion of all legitimate means of action to prevent or neutralise the harm before acting illegally, and (iv) the existence of any subjective motivations will not allow resort to the defence of state of necessity. The Court reiterated that alleged economic difficulties do not meet the necessary criteria and does exculpate the criminal conduct of the appellants.

 

It is worth noting the effective police cooperation between Spanish and French authorities in this case. Conversely, the considerable time-demands for the execution of requests for mutual legal assistance appears as an aspect that may constrain investigations and prosecutions.

 

NOTE: As per Spanish national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – Spain).