Case 37/1989

On November 5 1986, the Court of First Instance and Preliminary Investigations No. 10 of Malaga ordered the search of a medical clinic where criminal actions (specifically, the administration of abortions) were allegedly taking place. In so doing, information regarding the medical history of Ms. Ximena’s (the appellant) was recorded.

On November 21, 1986, the Court of First Instance and Preliminary Investigations No. 10 ordered that the appellant testify as to whether she underwent an abortion, and further that she undergo a medical examination to determine if she had had an abortion in that hospital. The appellant did not appear for the medical examination on the date established by the court. On February 10, 1987, the Court of First Instance and Preliminary Investigations No. 2 of Jerez de la Frontera reiterated the order for the appellant to undergo a medical examination. The appellant once again refused.

This appeal was filed as an expression of the Ms. Ximena’s fear that if she underwent the medical examination and it yielded negative results, she would face a possible charge of contempt of court. Furthermore, Ms. Ximena alleged that these measures ordered by the Court of First Instance and Preliminary Investigations infringed her right to be presumed innocent, her right to proper defense, and her right to privacy.

With respect to the right to be presumed innocent until proven guilty, the Court held that Ms Ximena’s right to a presumption of innocence had not been violated because every indictment must be preceded by a legitimate investigation that proved the charges. Thus, this right was only violated when a court decided to sanction or restrict a person’s rights where there was only minimal evidence against such person. Here, no such resolution was adopted. Thus, because Ms. Ximena’s presumption of innocence remained unscathed in the procedural stage of this appeal, her right was not harmed.

With respect to the right to proper defense, the Court held that Ms. Ximena’s rights had been violated in practice because she was not informed of her rights, particularly her right to receive the assistance of a lawyer. An accused person who has not yet been prosecuted still enjoyed the right to be informed about the charge (while there was no indictment specifying the charge) and the right to proper defense. These rights must be communicated to anyone involved in the case before such person testifies. The Court noted that during the interrogation itself, Ms. Ximena should have been considered a “charged” person rather than merely a “witness.” Thus, Ms. Ximena’s procedurals rights were violated when she was not informed of the rights she possessed under the Constitution. However, such violation was merely declaratory in nature. The appellant’s ignorance regarding her rights had no negative consequences for her because a conviction did not arise from it, so her fundamental right had not been harmed.

With respect to the right to privacy, the Court held that Ms. Ximena’s right had not been violated when her medical history was seized during the search of the medical center. The Court noted that there were no unlimited rights, and privacy was not an exception. Searching an establishment was permitted pursuant to Article 18.2 of the Constitution if such search was to determine whether criminal activities were taking place. Thus, the search of the medical clinic to determine if abortions were being performed was legitimate. Accordingly, although Ms. Ximena’s personal medical history was seized during the search, it cannot be said that her privacy was injured due to the fact that the search had been sufficiently motivated and connected to investigation of an alleged crime.

As for the medical examination that Ms. Ximena was ordered to undergo, the Court held that this was a violation of her right to privacy. The Court discussed the well-settled constitutional doctrine called the rule of proportionality of sacrifices. This rule, which says that there must be a legitimate motivation to restrict a person’s fundamental rights, must be applied when determining whether a fundamental right (such as the right to privacy) may be limited. In this case, the Court held that the medical examination was an unmotivated resolution. This was because that decision to order the medical examination was made without any consideration of the necessity of the measure in comparison to the fundamental right that was restricted. Rather, the Court of First Instance and Preliminary Investigations merely indicated that “it [would be] interested to examine her (the appellant) by the forensic surgeon on that end.”

In summary, the Spanish Constitutional Court held that Ms. Ximena’s testimony before the Court of First Instance and Preliminary Investigations No. 2 of Jerez de la Frontera must be preceded by a warning that the accused had certain rights under the law, and it further held that Ms. Ximena’s right to privacy must be recognized by cancelling the order for the medical examination.

“It is about considering the opposing values herein, as they are on the one hand, for example, liberty and privacy, and on the other hand, respect to Law (art. 10.1) or obedience to judicial orders [art. 118 CE).” Page 7

“…it is obvious that the warrant permitting the entrance and search in a house (Art. 18.2 CE) is justified, in the criminal law, by the need to investigate and if appropriate to take whatever relevant to the preliminary investigation, without being object any secret that, facing such an inquiry ordered legitimately, inside the house being investigated, imposes itself to the judicial acts in course (Art. 552 “in fine” LECr). . . we cannot thus offer . . . the protection the appellant applied for since the warrant has not injured her privacy; it was sufficiently motivated and it has not led to actions that did not have immediate relationship with the aimed pursued.”  Pages 10-11

“According to a well settled doctrine, the rule of proportionality of sacrifices (Constitutional Court Judgment 26/1981, f.j. 5^th), must be performed when proceeding to the limitation of a fundamental right (Constitutional Court Judgment 13/1985, f.j. 2^nd), and it is well understood that the respect of this rule imposes the motivation of judicial resolution that makes exceptional the right or restricts it (Constitutional Court Judgment 62/1982, f.j. 2^nd), because only such ground will allow to be appreciated, in the first place, by the affected that can be controlled, and in the second place, by the reason that justified, according to the judicial body, the sacrifice of human rights” Page 14