Where investigations affecting activities related to organised crime are concerned, the competent authority may authorise the Judiciary Police to act under an assumed identity and to acquire and transport objects, effects and instruments of the crime and defer confiscation of them. The Investigative Judge may authorise members of the Judiciary Police to act under an assumed identity in communications held on closed communication channels for the purposes of solving any the same crimes.
During an investigation carried out using an undercover agent, the competent Judge may authorise images to be obtained and conversations to be recorded which may be held in the meetings foreseen between the agent and the party under investigation, even where these take place inside a residence.
The undercover computer specialist, with specific authorisation to do so, may exchange or send, by themselves, fileswhich are illegal due to their content and analyse the results of the algorithms applied to identify such illegal files.
Summary of general requirements for a measure;
For the purposes of authorising undercover agents, organised crime is considered to be the association of three or more persons to engage, either permanently or repeatedly, in behaviour which has the purpose of committing one or several of the following crimes:
a) Crimes of procurement and illegal trafficking of human organs and their transplant, provided for in article 156 a of the Criminal Code.
b) Crime of abduction of persons provided for in articles 164 to 166 of the Criminal Code.
c) Crime of human trafficking provided for in article 177 a of the Criminal Code.
d) Crimes relating to prostitution provided for in articles 187 to 189 of the Criminal Code.
e) Crimes against property and against socio-economic order provided for in articles 237, 243, 244, 248 and 301 of the Criminal Code.
f) Crimes relating to intellectual and industrial property provided for in articles 270 to 277 of the Criminal Code.
g) Crimes against workers’ rights provided for in articles 312 and 313 of the Criminal Code.
h) Crimes against the rights of foreign citizens provided for in article 318 a of the Criminal Code.
i) Crimes of trafficking endangered species of flora or fauna provided for in articles 332 and 334 of the Criminal Code.
j) Crime of trafficking nuclear and radioactive material provided for in article 345 of the Criminal Code.
k) Crimes relating to public health provided for in articles 368 to 373 of the Criminal Code.
l) Crimes of currency forgery, provided for in article 386 of the Criminal Code, and forgery of credit or debit cards or travellers’ cheques, provided for in article 399 a of the Criminal Code.
m) Crime of arms, munitions or explosives trafficking and warehousing provided for in articles 566 to 568 of the Criminal Code.
n) Crimes of terrorism provided for in articles 572 to 578 of the Criminal Code.
o) Crimes against historical heritage provided for in article 2.1.e of Organic Law 12/1995, of 12 December, on repression of smuggling.
The authorities that shall authorise the request are the competent Investigative Judge or the Public Prosecution Services, giving immediate account to the Judge.
• the rules to use the acquired information as an evidence
Where the proceedings in an investigation may affect fundamental rights, the undercover agent must request the competent judicial body for the authorisations established for that purpose in the Constitution and the Law, and also comply with all other applicable legal provisions.
• whether a private person can be an agent
According to the Spanish Criminal Law Procedure, a private person cannot be an undercover agent.