Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: Spania

Interceptarea şi înregistrarea altor forme de comunicaţie (103)

1. MEASURE IMPLEMENTATION

Spania

Is this measure possible in your Member State under International Judicial Cooperation?

Yes, it is possible. The applicable law is the Criminal Procedural Act, which refers to this measure for national cases in articles 588 quater a-e. Applicable cases (article 588 quater b): The use of electronic devices enabling to capture and record direct oral communications must be linked to communications that may take place between the investigated person and other people, in one or several particular meetings that, according to evidence provided by the investigation, are likely to take place and may only be authorised under the following circumstances: a) When the facts being investigated may constitute one of the following criminal offences: a) Intentional crimes punished with a maximum of, at least, three years’ imprisonment sentence, b) Offences committed within a criminal group or organisation; c) Terrorist offences. In all cases, only when it can be rationally expected that the use of such devices shall provide essential information, important as evidence for the clarification of facts and the identification of the offender.

2. LEGAL FRAMEWORK

Spania

International legal framework applicable for this measure in your Member State

Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union European Convention on Mutual Assistance in Criminal Matters of 1959

3. COMPETENT AUTHORITY TO:

Spania

* receive the request/decision for judicial cooperation

The competent judicial authority is the Investigating Judge or the Central Investigating Judge at the National Court, according to the scope of their respective objective competence (see Judicial Atlas).

* execute/recognise the measure (if other than the receiving authority)

Investigating Judge and Central Investigating Judge

4. ACCEPTED LANGUAGES

Spania

Accepted languages for the request/decision

The only accepted language is Spanish.

5. EXECUTION DEADLINE

Spania

Deadlines for the execution of the request/decision (where applicable)

Criminal Procedural Act. Article 588 bis c: The Investigating Judge shall authorize or refuse the requested measure through a reasoned order, having heard the Public Prosecutor. This decision will be rendered within the twenty-four hours following the submission of the request. Whenever it is necessary to rule on the compliance of some of the requirements, the Judge may require an extension or clarification of the request terms, interrupting thus the term referred to in the preceding subsection,.

6. CONCISE LEGAL PRACTICAL INFORMATION

Spania

a. Special requirements

Article 588 quater a. Recording direct oral communications. 1. It may be allowed to install and use electronic devices enabling to capture and record direct oral communications held by the person investigated on a public road or in any other open space, at home or in any other enclosed location. Listening and recording devices may be placed both outside and inside the home or enclosed space. 2. Should it be necessary to enter into a home or into any of the areas for the exercise of the right to privacy, the enabling decision shall justify the pertinence of entering such places 3. The measure of listening and recording private conversations may be complemented by the capture of images when this is specifically authorized by the judicial decision. Article 588 bis a. Guiding principles for gathering judicial authoritation regarding these measures. During the pre-trial investigation, some of the inquiry measures can be applied as long as it is through a judicial authorization fully abiding by the principles of speciality, suitability, exceptionality, necessity and proportionality of the measure. -The principle of speciality requires that a measure should be related to the investigation of a specific crime. Measures of technological investigation aiming at preventing or discovering offences or clearing up suspicions without an objective basis shall not be authorized. -The principle of suitability will define the objective and subjective scope and the duration of the measure according to its utility. -According to the principles of exceptionality and necessity, the measure can only be applied: a) when other measures less harmful for the basic rights of the investigated or accused person but equally useful for the clarification of the fact are not available, or b) when the discovery or the verification of the investigated fact, the identification of its perpetrator or perpetrators and their whereabouts, or the location of the effects of crime could be seriously hampered without resorting to this measure. -The investigation measures provided for in this chapter will only be deemed as proportional when, having considered all the circumstances of the case, the sacrifice of the involved rights and interests does not exceed the benefit resulting from its adoption to the public and third party interest. For the balance of the conflicting interests, the assessment of the public interest will be based on the seriousness of the fact, its social significance or the technological field of production, the intensity of the existing pieces of circumstantial evidence and the relevance of the results pursued with the restriction of the right.

b. Other useful information

Article 588 quater d. Control of the measure In compliance with the provisions set down under Article 588 bis g., the Judicial Police shall make available to the judicial authority the original carrier or a certified electronic copy of the recordings and images, which shall be accompanied by a transcription of the conversations deemed of interest. The report shall identify all the officers having participated in the implementation and monitoring of the measure.

Last reviewed on 6 iulie 2016 by Secretariatul RJE

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