The evidentiary value of the Falciani List regarding offences against the Public Treasury

Written on 21 Jan 2016

By its decision of 9 December 2015, the Appeal Court of Madrid (Audiencia Provincial de Madrid), Section 6 (ruling no. 852/2015) states that the economic information included in the Falciani List has the evidentiary value to justify conviction for an offence against the Public Treasury.

The Falciani List was delivered by the French Government to the Spanish tax authorities following its theft from HSBC Suisse databases by IT expert Herve Daniel Marcel Falciani.

Based on the information included in the Falciani List, in this particular case the Treasury made the necessary Personal Income Tax (PIT) statements to the defendant corresponding to 2005 and 2006 according to the account balances of the defendant’s HSBC bank accounts not declared to the Tax Office at the time, which led to his subsequent conviction in criminal proceedings. The first instance judgment sentenced the defendant to a term of imprisonment of 7 years for 3 offences committed against the Treasury and to pay fines amounting to 21.63 million euros. In response to the argument of the accused on the use of illegal evidence, the Appeal Court of Madrid (Audiencia Provincial de Madrid), in accordance with the guidelines of the Prosecutor’s Office, considers that the information included in the Falciani List is admissible as evidence in criminal proceedings given that “under international conventions and treaties, the French authorities shared data that was investigated, and no objection has been raised”.

The Appeal Court confirms the first instance ruling (ruling no. 221/2015, of 2 June 2015, Criminal Court of Madrid no. 31). The first instance ruling considers that it is not possible to conclude that the evidence on which the ruling is based “comes from a criminal offence in Spain nor that such evidence violates the defendant’s right to privacy, because the right to privacy is outweighed by other constitutionally protected rights, thus the evidence is considered lawful and effective as such to weaken the presumption of innocence.”

The judgment of the Appeal Court of Madrid (Audiencia Provincial de Madrid) is the first that involves imprisonment on the basis of Falciani List.