Fiches Belges

The investigation should concern one of the following criminal offences (Art. 588 ter a in relationship with art.579.1 Criminal Procedural Code): 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 General requirements: 1. principles of speciality (a measure is related to the investigation of a specific crime), 2. adequacy (the objective and subjective scope and the duration of the measure depending on its usefulness), 3. exceptional nature and necessity (where the investigation, given its nature, does not have other measures available which are less onerous to the fundamental rights of the accused, and when discovering of the facts is seriously hampered without recourse to this measure) 4. proportionality of the measure (when the detriment of the rights and interests at stake is not greater than the benefit that their adoption provides for public interest and third parties). 5. judicial authorization, specifying the technical means to be used. 6. Obligation of providers, agents and persons to provide the assistance and cooperation needed to the judge, the Public Prosecution Service, or members of the Judiciary Police appointed. Article 221. Execution of a European Investigation Order for interception of telecommunications. When the competent Spanish judicial authority receives a European Investigation Order for interception of telecommunications, it may execute it in one of the following ways: (a) the immediate transmission of telecommunications to the issuing authority. (b) interception, recording and subsequent transmission of the result of the interception of telecommunications to the issuing authority. The choice of the manner in which the European Investigation Order is to be executed shall be agreed with the issuing authority. 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 with 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 human 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 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. In order to balance 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. KEY POINTS: 1) An investigation into a serious offence must exist; 2) There must be serious indications of the crime that justify implementation of the measure; 3) Agreement to the measure must be supported by reasons, taking into consideration the necessity and the scale of the operation; 4) The communications that are going to be subjected to the measure must be specified; 5) The term of the measure must be specified

At national level: Spanish Criminal Procedural Law Spanish Act 23/2014 of 20 November 2014, on mutual recognition of judicial decision in criminal matters in the European Union, refers to this measure in its Title X, chapter III, section 2º, art. 221

* receive the request/decision for judicial cooperation The Prosecutor's Office in the case of EIO (see atlas) and in the case of MLA the Public Prosecutor's Office or Investigating Judge. As regards to incoming EIOs the Spanish Public Prosecutor is the new receiving authority or SpOC in accordance to Article 187 (2) of Law 23/2014 on mutual recognition of judicial decisions in criminal matters in the European Union as amended in 2018 for the implementation of the EIO 2014 Directive As regards to MLA requests issued by DK or IE the receiving authorities could be either the Public Prosecutor or the Investigating Judge * execute/recognise the measure (if other than the receiving authority) Investigating Judge and Central Investigating Judge

The only accepted language is Spanish.

-There is not a deadline for the execution of rogatory letters or MLA. -The decision to recognise and execute the European Investigation Order (EIO) or, where applicable, to refuse to execute it shall be taken as soon as possible and at the latest within 30 days of its receipt by the competent authority. Where, in a specific case, the competent Spanish authority finds that the time limit for the recognition and enforcement of the order cannot be met, it shall inform the issuing authority without delay, giving the reasons and stating the estimated time needed to take the decision. In this case, the time limit for issuing the decision on recognition and enforcement may be extended up to a maximum of 30 days. The Spanish competent authority shall carry out the execution of the investigative measure without delay and at the latest within 90 days after the adoption of the decision on recognition and enforcement.

According to Article 588 ter f, Spanish Criminal Procedural Code on Control of the measure: In compliance with the provisions of Article 588 bis g, the Judicial Police will put at the disposal of the Investigating Judge, with the frequency determined by the latter and on different digital carriers, the transcription of the passages deemed of interest and the complete recordings made. The source and destination of each of them shall be indicated and it shall be secured by means of a system of stamping or advanced electronic signature or a sufficiently reliable certification system, the authenticity and integrity of the information transferred from the central computer to the digital carriers on which the communications would have been recorded.