Introduction Until Spanish legislation did not expressly regulate telephone tapping as an investigative measure within criminal procedure.
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Inan important legislative reform was passed by the Congress in order to provide a legal basis for the interception of communications as required in the decisions of the European Court of Human Rights hereinafter ECHR. However, there were several issues not clearly regulated that raised some questions about the compliance of the Spanish rule with the standards set out by the ECHR. The aim of this paper is to present the evolution of the Spanish legislation on telephone tapping, its constitutional requirements and the role that the case law of the ECHR has played in that evolution.
As in other European countries, a better understanding of the requisites to issue an interception order in Spain should contribute to enhance the mutual confidence among EU member States, which is in turn indispensable for the full implementation of the principle of mutual recognition.
Once again, the use of privatim suisse anti aging law proves to be not only a resource for erudition but also an efficient tool to achieve important practical privatim suisse anti aging in the EU area. There was a virtually unanimous agreement that constitutional provisions have a direct application in order to warrant and confer protection to the fundamental rights, but they cannot have a direct privatim suisse anti aging to limit fundamental rights.
Nevertheless, privatim suisse anti aging courts, lacking a statutory provision and bound to provide a legal solution to the investigative requirements, issued the interception warrants on the basis of the general constitutional provisions and a questionable analogical application of statutory rules.
The provisions of Art. This was the aim of the Implementing Law no. A court may also authorise, in a reasoned decision, the monitoring of the telephone calls of privatim suisse anti aging person charged if there is evidence to show that facts or circumstances material to the case may thereby be uncovered or verified.
Therefore, since Art. In this regard, it is important to note that Art. On the other hand, it is also essential to bear in mind that, according to the Spanish Constitution Arts.
As a consequence, the Spanish law on the issue we analyze here must be interpreted according to the following norms: Art. It is well known that, according to the ECHR, there are some requirements to accept an interference in fundamental rights as legitimate.
The Kruslin and Huvig judgments, as it is stated in the case of Valenzuela Contreras v. We will now analyse to what extent the wire tapping in the Spanish criminal procedure complies with the requirements stated by the ECHR. Spain and Prado Bugallo v.
Spain — has raised the crucial question of whether Spanish law provided a sufficient legal basis to permit an interference with the fundamental right to the privacy of communications through the measure of telephone tapping. The requirement of foreseeability implies that the enterprise frigorifique suisse anti aging law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to take secret measures Malone v.
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Thus, the first issue to be addressed is whether the Spanish privatim suisse anti aging meets the foregoing requirements derived from Art. Spain the ECHR did not questioned the existence of a legal basis to issue interception orders. The next question to be answered is whether this legal provision meets the requirements of the ECHR.
Privatim suisse anti privatim suisse anti aging the decision of the Spanish investigating judge complied with the safeguards recommended by the ECHR, the quality of the law did not meet adequately the requirements of foreseeability defined by the ECHR.
Hence the Court affirmed that Mr Valenzuela Contreras did not enjoy the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society.
In Prado Bugallo v. Nevertheless, the Court noted that this evolution of the Spanish case law took place after the telephone interception at issue in Prado Bugallo, and could not therefore be taken into account in the current case. When the facts of the case occurred, the Spanish law on phone tapping did not meet the foreseeability requirement as set out by the ECHR, and there was, consequently, a violation of Art.
Lack of sufficient reasoning Lack Effects Once the conversations have been recorded on the tapes, the judge must periodically, in the manner he deems appropriate in the light of all the circumstances, examine them in the presence of the court registrar and, after hearing the recorded voices, decide on the proper course of action and, if appropriate, order that the monitoring continue, in which case he determines the appropriate guidelines to be followed by those responsible for implementing the measure.
If he orders that the measure should cease, the person or persons affected by that measure must be informed of the operation that has ended Only in exceptional cases can the measure remain secret until the end of the investigation so as not to frustrate the legitimate interest in pursuing it There is a violation of the right to private life or, even more simply, the confidentiality of communications in general and of telephone communications in particular where At that point Such situations, if uncontrollable and not directly supervised by the judge, cause or are apt to cause a total failure to comply with the proportionality principle.
It will never be known whether or not that principle was complied with in the present case. Article of the Code of Criminal Procedure. The fact that the tape recordings produced to the court were copies, not originals, and moreover represented a selection made by the police without any judicial supervision, is a serious violation of the system. The judge must order the immediate cessation of the measure when it is no longer relevant to the legitimate aim of establishing the commission of a serious offence, whose privatim suisse anti aging must always be proportionate to what is, in principle, an intolerable interference with private life.
The judge, who is the essential guarantor of fundamental rights and public freedoms, must consider each offence in the light of all the circumstances and decide whether the legitimate interests in investigation, prosecution and, where appropriate, conviction warrant in a given case the sacrifice of legal interests as important as the dignity, privacy and freedom of the individual.
It must be noted that in the Spanish privatim suisse anti aging system the Constitutional Court decisions are binding precedents and oblige all the inferior courts. In effect, the legislative reform oftogether with the well-established case law of the Spanish növényi plex 7 anti aging szemkörnyékápoló since —reinforced after the unification of the constitutional best anti aging eye cream for 60s uk sinceconstitute a body of law on telephone tapping that is privatim suisse anti aging to provide a sufficient legal basis for the interception of telephone communications.
However, being the Spanish law a typical civil law system that relies heavily on legislation or statutory law, it would be desirable that the Spanish Parliament Cortes amended the insufficient provisions of Art. Indeed, Spanish scholars, as well as the Constitutional Court itself22have repeatedly claimed for a more complete statutory regulation of telephone tapping.
In any event, the Spanish Constitutional Court has affirmed that telephone interception is legitimate and the evidence gathered through it is admissible in a criminal trial, as far as the conditions set out by Art.
Legitimate aims and justification of the measure In addition to having a sufficient legal basis, according to Spanish law interception of telephone communications must meet another essential requisite to be justified: the aim pursued must be consistent with the Constitution.
As indicated privatim suisse anti aging, Article 10 2 of the Spanish Constitution requires that the rules relating to fundamental rights be construed in accordance with the international treaties ratified privatim suisse anti aging Spain. Among them, the European Convention on Human Rights has a special significance. According to Art. Moreover, the justification of the measure of phone tapping accorded by the judge must be evaluated with relation to the following factors: The adequacy of the measure: The measure must be adequate to achieve the goal pursued, i.
The interference should be likely to produce results or material to aid in the investigation. Consequently, phone tapping has to be excluded if there is a different means to achieve the aim pursued which produces a lesser interference with the rights of the person who is investigated.
When considering whether it is necessary to issue a warrant, the judge must take into account whether the information which must be collected could be reasonably acquired by other means.
The proportionality of the measure in relation to the offence under investigation: There must be a reasonable proportion between the fundamental right at stake and the expected result that the measure should obtain This means that the criminal facts at issue must be sufficiently serious, in themselves and in consideration of their social consequences.
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Contrary to the legislation of other countries — as the German Strafprozessordnung, § a StPO25 —, the Spanish law does not contain a list of crimes with regard to which it is permitted to order the tapping of telephones. Whether the measure of telephone tapping is a proportionate measure or not is something that must be balanced in relation with the seriousness of the offence and the circumstances in which the crime was committed in the particular case.
The requirement of proportionality was expressly defined by the decision auto of the Spanish Supreme Court of 18 June Thus, the penalty imposed to a certain crime is not the only element to take in account.
In other words, the seriousness of the offence must be assessed taking into account the penalty imposed by the law, the protected legal interest and the social relevance of the facts. There must be reasonable grounds to suspect that the person using the telephone is committing or participating in the commission of a crime. However, neither Spanish statutory law nor case law define the intensity of the circumstantial evidence in privatim suisse anti aging of a certain percentage privatim suisse anti aging probability that the eucerin anti age hyaluron filler is guilty.
The Spanish case law, interpreting Art. Evidence must consist of external data, accessible to third parties, that provide a real basis from which it is possible to infer that a crime has been or is to be committed; the mere appraisal of the behaviour or the quality of a person is not admissible The initial circumstantial evidence must refer to precise criminal facts and precise persons, and must be grounded on objective data.
In addition, this circumstantial evidence must lead to establish a connection between the people using the telephones intercepted and the criminal facts that are investigated. These requirements are aimed to prevent the judge from issuing a warrant of phone tapping for the mere purpose of an exploratory search, without being linked to a concrete criminal fact The judicial warrant According to art.
Article 3 SC requires that judgments be duly reasoned.
The rationale of the decision must contain the necessary indications that the material requirements of the measure have been complied with, i. Therefore, the decision must express why the measure is useful and necessary to find out the facts and it must also specify the type of crime, the circumstances that determine its seriousness and the circumstantial evidence anti aging nikolai ostrovskog leads to the investigation of that crime.
It would be highly desirable that all judicial orders articulated directly and in sufficient detail all the foregoing elements, which are essential to consider that the measure of phone tapping is justified. Nevertheless, according to the Spanish case law it is sufficient that the text of the decision shows the reasons that — from an objective perspective — justify the restriction of a fundamental right in the particular case Even when a warrant has neither made explicit its factual grounds nor expressed the precise reasoning that led the judge to assess the necessity and proportionality of the measure, it is considered correctly reasoned if compliance with the material requirements can be inferred from privatim suisse anti aging facts described in the respective police application.
This explains why the texts of these warrants tend to be rather short and usually refer to the 2020.
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május 28. suisse anti aging that accompany the police applications. Ac- 13 Lorena Bachmaier Winter: Telephone Tapping in the Spanish Criminal Procedure… cording to Spanish law it is permissible to carry out the tapping of a telephone registered under the name of a person who is not a suspect in the case in question, if it is suspected that the phone is being used by a person involved in the case.
The warrant must identify both the telephone number to be tapped and the person or persons whose conversations must be intercepted. It is not required, however, that the telephone is registered under the name of the person charged If their names are unknown at that stage of the investigation, they may be identified with the nicknames they use.
It is not admissible to order a telephone tapping to facilitate a general search of possible criminal offences. The reference to the specific kind of crime under investigation is also crucial, as we have already noted, in order to control the proportionality of the interception. Privatim suisse anti aging, the measure must be authorised only for the period of time that seems strictly necessary for the result of the investigation The judicial warrant must express in what time the police privatim suisse anti aging report on the results of the wire tapping in order to make it possible for the judge to control the execution of the measure and evaluate its maintenance or conclusion.
Although this is stated as a requisite by the Spanish case law, in fact it is not required that the warrant includes a specific mention of the person carrying out the interception and it is not indispensable either to indicate the specific unit or agents in charge of the operation When the application is filed by the police, it is assumed that the applying unit will be the one authorised to carry out the measure. The report relating to the actual tapping must specify who were the officers in charge of the listening and recording, so that they can be called, if necessary, as witnesses privatim suisse anti aging the oral proceeding.
The renewal warrant, as well as the initial warrant, is deemed valid and sufficiently reasoned when the necessity to extend the interception can be inferred from the account of the facts contained in the relevant police application. Consequently, in order to appreciate whether the interception may be prolonged, the judge must evaluate the results reached so far in the investigation. This can be done through listening to the recordings.
However, no decision of the Supreme Court or of the Constitutional Court privatim suisse anti aging held that the judge is bound to listen to all the recordings.
Judicial control over the execution of the phone tapping The requirement of judicial control over the interception of the communications implies that, once the warrant has been issued, the judge must control its development and results. This is aimed at: 1 confirming that there are sufficient reasons for the renewal as explained above ; 2 preventing an improper or abusive use of the measure; 3 selecting those conversations that may serve as evidence and eliminate those others not related to the facts under investigation.
There is a lack of judicial supervision, and therefore a violation of art. In order to make the judicial supervision possible, the police report shall explain the investigation results to the court at the time specified in the warrant. This includes the recordings of the relevant conversations, and their transcript, as well as the internal reports drafted during the corresponding period.