B Law & Tax
20 July 2023

Tax advisor: The Supreme Court validates evidence obtained by the Treasury in home entry without prior notification of the start of the inspection process

Not every violation of the right to inviolability of the home automatically implies a violation of the right to due process. The application of Article 11.1 of the LOPJ requires a considered analysis to determine whether there is a connection between the interference with the fundamental right and the obtaining of evidence. In addition, it must be evaluated whether, in order to ensure a fair and balanced process, it is necessary to exclude such evidentiary material, as established by constitutional jurisprudence.

The Supreme Court has expressed its position through judgments No. 772/2023, of June 9, and No. 773/2023. Both cases dealt with situations in which the State Tax Administration Agency (AEAT) obtained evidence by means of an entry into the taxpayer’s home, supported by a judicial authorization, but with a violation of the fundamental right to inviolability of the home by not notifying the taxpayer beforehand of the opening of the inspection process for which the entry authorization was requested. This requirement was established by a jurisprudential criterion subsequent to the confirmation of the judicial authorization.

In such cases, the Supreme Court holds that it is not necessary to apply an invalidating effect to the evidence obtained, since the equality of the parties has not been infringed. The lack of clarity in the interpretation of the legal framework is the cause of the violation, which leads the investigating body to act with the well-founded conviction that it is respecting the Constitution. The Supreme Court points out that, in short, it is a failure to comply with an ordinary legal requirement to carry out the act in question, which entails the violation of the right to inviolability of the home. The judicial authorization referred to in Article 18.2 of the Constitution is not a generic authorization, but one granted in accordance with the laws and their specific requirements. However, the scarce legal regulation on the procedure and conditions for granting such authorization has been supplemented by case law, which has developed the regulations in more detail. In this case, the lack of prior notification of the inspection procedure was not questioned during the request for entry nor in the order authorizing it, since such issue is based on a subsequent jurisprudential interpretation. In situations such as this, it is not necessary to invalidate the evidence obtained, since the right to procedural equality of the parties is not affected when the investigating bodies act in good faith and in compliance with the Constitution, even if there exists an insufficient interpretation of the legal system.

The admission and evaluation of the evidence obtained by the Tax Administration does not affect due process, since the only legal connection between the defect that violates the right to inviolability of the domicile and the obtaining of the evidence is the evolutionary interpretation of a requirement of prior notification to the taxpayer, without affecting fundamental elements of the judgment of authorization of entry.

The rulings conclude that the connection between the violation of the right to inviolability of the home and the obtaining of evidence does not imply an injury to the right to due process. Therefore, evidence obtained during the authorized house search should not be excluded. The challenged resolutions are annulled and a review of the applications is ordered considering all the evidence submitted.

B Law & Tax International Tax & Legal Advisors.


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