These were cassation appeals brought by the appellants, the master and crew of the Natalia, against their convictions and sentences for crimes against public health.

On 8 August 2021, the Natalia, owned by Natalia Marine Co Ltd, domiciled in the Marshall Islands, and registered in the Republic of Palau, was sailing through the Atlantic Ocean in an advanced state of deterioration and without flying any flag, 44 nm from the coast of Morocco and 38 nm from the Island of Fuerteventura, carrying in its holds 638 bales of a substance which, when later analysed, turned out to be hashish. Until 13 July 2021, the vessel had been known as The Lady Lara, registered in Togo, and owned by Lara Shipping Maritime SA, domiciled in Tegucigalpa, Honduras. The 638 bales of hashish were plainly visible, as they were placed on top of 4,618 mt of gypsum that the ship was transporting in the same holds from Iskenderun (Turkey) to Port Harcourt (Nigeria).

The Natalia was intercepted and boarded by officials of the Spanish Customs Surveillance Service, who had received information from the Intelligence Centre against Terrorism and Organised Crime (CITCO) that the ship was likely to be carrying narcotic substances. On 6 August 2021, CITCO had requested confirmation from Palau authorities that the ship was registered in that country and, where applicable, boarding and inspection was authorised. CITCO received confirmation and authorisation on the following day.

One of the grounds of appeal was that this confirmation and authorisation had, in fact, not been obtained, rendering the prosecutions a nullity.

Held: Appeals dismissed.

The trial Court found that, although the authorisation documentation had not been incorporated into the court documentation by mistake, it did exist, based on the evidential statements given by the officials who prepared the report, where they detailed how the authorisation of the Republic of Palau for boarding and inspection had been requested and granted, with indication of the precise dates. The trial Court’s ruling granted credibility to the agents' statements regarding the existence of the authorisation, without providing reasons to doubt the credibility of their testimonies. The ruling evaluated the statements, took into consideration what was recorded in the report, and concluded that there were no reasons to doubt its reliability. The assessment made by the trial Court was confirmed by the appellate ruling which is on cassation appeal, and conforms to the rules of logic and the maxims of experience, regarding the existence of the authorisation. This being so, the claim of the appellants to declare the nullity of the entire judicial procedure by virtue of the fruit of the poisoned tree theory becomes implausible.

It is important to note, in relation to whether this hypothetical lack of authorisation for boarding would render that procedure radically null and void, that the appealed ruling, citing STS 681/2017, 18-10, states:

According to our jurisprudence, by reference to STS 720/2013, of 8 October, regarding the legality of the boarding itself, this Chamber, as stated in the contested ruling, has indicated that the international standards that regulate boarding on the high seas are not aimed at the protection of individual fundamental rights whose violation could determine the prohibition of evaluation of the evidence obtained through these procedures. In this respect, their violation, even if it could give rise to a conflict between States, would not necessarily determine the nullity of what was done.

This criterion was reiterated in STS 720/2017, 6-11, which points out that art 92 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) provides: 'Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.' Art 94.2.b of the same Convention states: "In particular, every State shall ... assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.'

Furthermore, art 108.1 of the Convention, under the heading of 'Illicit trafficking in narcotic drugs or psychotropic substances', provides: 'All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.'

The judgment concludes:

The intervention of the State that exercises sovereignty in international waters, refers to the norms that regulate relations between the respective nations, in accordance with the provisions of Conventions such as that of the United Nations of 20 December 1988, or that of Montego Bay on the Law of the Sea of 1982, but in no way is its purpose the protection or guardianship of fundamental rights of a personal nature, the infringement of which, according to our system, and specifically article 11.1 of the Organic Law of the Judiciary, would have to give rise to any evidentiary nullity.

Therefore, in any event, this hypothetical issue would be a matter to be debated in the field of international relations between States, but without any repercussion in terms of the procedural value of the evidence obtained.