Investigating judge may authorize to place and use electronic devices which enable the capture and recording of direct verbal communications by the party under investigation on public roads or other open spaces, in their domicile or in any other enclosed spaces.
Listening and recording devices may be place outside and inside the domicile or enclosed space.
Listening to and recording private conversations may be supplemented by obtaining images where expressly authorised by the judicial decision ordering it.
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.
Requirements:
1. The use of the devices referred to in the previous article must be associated with communications which may take place in one or several specific encounters of the party under investigation.
2. The facts under investigation must constitute one of the following crimes: Intentional crimes punished with a maximum sentence of, at least, three years imprisonment, Crimes committed as a member of a criminal group or organization or Crimes of terrorism.
3. It must be reasonably foreseen that the use of the devices will provide essential data, with evidentiary relevance for clarification of the events and identification of their perpetrator.
• for private room surveillance
In the event that it is necessary to enter the domicile, or any of the spaces used privately, the enabling decision must set out its grounds for proceeding with access to such places.
• which rules apply for placing a secret camera in a public place (e.g., in an office room) for investigative purposes. Are they different for placing a device in a private room/residence?
Decision enabling the measure does not need to set out the grounds for accessing to the public place.
• for which offences could be performed
1. Intentional crimes punished with a maximum sentence of, at least, three years imprisonment,
2. Crimes committed as a member of a criminal group or organization or
3. Crimes of terrorism
• authorities that are competent to decide on the measure
Investigating Judge and Central Investigating Judge
• time limits for performing the measure
Only for one or several specific encounters of the party under investigation with other people.
• are there legal differences between placing audio recorder and video recorder
No, if the judge specifically authorize it, placing video recorder is possible.