This measure is not legally provided under the Spanish procedural legislation for evidence-gathering purposes.
The only possibility foreseen in the Procedural Criminal Law for the telephone conference is related to the assistance of an interpreter for arrested subjects. Such assistance can be provided by telephone if needed unless the judge, the prosecutor or the defendant's counselor otherwise request. This rule can also be applied to witnesses.
The Spanish Public Prosecutor, which is the competent receiving and executing authority when a EIO refers to a phone hearing, cannot refuse the execution of the EIO and shall have recourse to other investigative measure as provided in Article 10 (a) of the 2014/41/EU Directive - implemented in Article 206 (3) of Law 23/2014- considering that the phone hearing itself does not exist under the Spanish law but also bearing in mind that witness, expert and victims hearings are considered “privileged measures” to be executed at least according to the traditional fashion (e.g. in writing) as art. 11 of the Directive does not apply to this measure in the territory of Spain (Article 206 (1) c) Law 23/2014)
The Spanish competent authority shall execute the EIO in the manner agreed with the issuing authority and:
. - Will notify the witness or expert witness of the measure, indicating the time and place of the appearance.
. - Will summon the persons under investigation or prosecution to attend the appearance in accordance with the specific rules established by Spanish law, and inform them of their rights under the law of the issuing State, with sufficient time for them to be able to effectively avail themselves of the procedural guarantees;
.- Will ensure the identity of the person who is to give evidence.
In any case the execution of the EIO shall be governed by the following rules:
. - During the declaration, the competent Spanish authority shall be present, assisted by an interpreter when necessary, to identify the person who is to give a statement and to ensure that the Spanish legal system is respected.
. - The competent Spanish authority shall agree, if necessary, with the issuing authority, the adoption of protective measures for the person to be deposed.
. - The declaration shall take place before the competent authority of the issuing State or under its direction.
.- If so requested by the issuing authority or the person appearing, the Spanish authority shall provide an interpreter to assist him/her.
.- Prior to the statement, the witnesses or experts shall be informed of their procedural rights under both the law of the issuing State and Spanish law, including the right not to testify when so provided.
. - Once the statement has been completed, the Spanish authority in whose territory the measure has been carried out shall draw up minutes of the same, in which the date and place, the identity of the person heard, the identity of the other persons who have participated, the oath taken and the technical conditions under which the statement has been made shall be recorded. The record shall be transmitted to the competent authority of the issuing State.
. - In the event that the person to be heard in Spain in execution of a European Investigation Order does not give testimony while subject to the obligation to testify or does not give truthful testimony, the Spanish legal system shall be applied in the same way as if the appearance had been held within a national process.