Until 1988 Spanish legislation did not expressly regulate telephone tapping as an investigative measure within criminal procedure. In 1988, an 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 comparative law proves to be not only a resource for erudition but also an efficient tool to achieve important practical goals in the EU area.
Article 18(3) of the Spanish Constitution (hereinafter SC) provides constitutional protection for the confidentiality of communications in the following terms:
"Communications, particularly postal, telegraphic and telephone communications, shall be confidential unless the court decides otherwise."
The relevant provisions on telephone tapping[1] are included in Chapter VIII of Volume II of the Code of Criminal Procedure (CCRIMP), under the title "on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence."
Before 1988, there was no statutory provision which expressly empowered investigating judges to carry out or order telephone tapping. Tapping of telephones was nevertheless ordered on the basis of the constitutional provisions[2], through an analogical application of the requirements and procedure established by Article 579 of the CCRIMP for the interception of postal and telegraphic correspondence:
"A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified." [3]
Spanish scholars criticized that practice and questioned the compatibility of telephone tapping as carried out in the Spanish criminal procedure with the national and specially with the international rules in force in Spain[4]. 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 application to limit fundamental rights. Nevertheless, the 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. 18(3) SC had no legislative development until 1988. This was the aim of the Implementing Law no. 4/1988, of 25 May 1988, which amended, among others, Art. 579 CCRIMP, whose text was changed as follows:
"1. A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to
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believe that facts or circumstances material to the case may thereby be uncovered or verified.
2. A court may also authorise, in a reasoned decision, the monitoring of the telephone calls of a person charged if there is evidence to show that facts or circumstances material to the case may thereby be uncovered or verified.
3. Likewise, a court may, in a reasoned decision, authorise for a maximum renewable period of three months the monitoring of the postal, telegraphic and telephonic communications of persons reasonably believed to have committed an offence and of communications made for criminal purposes..."[5].
Therefore, since 1988 Art. 18(3) CE and Art. 579 CCRIMP constitute the statutory basis for telephone tapping in Spain, at least from a formal perspective. In this regard, it is important to note that Art. 579 CCRIMP is so incomplete that, in order to meet the requirements set out by the ECHR, its content must be complemented with the case law of the Spanish courts. On the other hand, it is also essential to bear in mind that, according to the Spanish Constitution (Arts. 10(2) and 96(1) SC), Spanish laws on fundamental rights have to be construed in the light of the Universal Declaration of Human Rights and of the international conventions and treaties signed and ratified by Spain[6]. As a consequence, the Spanish law on the issue we analyze here must be interpreted according to the following norms: Art. 12 of the Universal Declaration of Human Rights (10 December 1948); Art. 17 of the International Covenant on Civil and Political Rights (16 December 1960); and Art. 8 of the European Convention on Human Rights (4 November 1950).
Because of the imprecision of the Spanish legislation on telephone tapping, the case law of the European Court of Human Rights has been particularly influential in order to define the scope of legitimate interference in the individuals' fundamental right to privacy and to the confidentiality of their communications.
The departing point of the ECHR's interpretation of Art. 8 of the European Convention is that the interception of telephone conversations constitutes an interference by a public authority in the right to respect for private life and correspondence. Such interference will be a breach of Article 8 unless it is done "in accordance with the law", pursues one or more legitimate aims under Article 8 § 2 and, in addition, can be deemed "necessary in a democratic society to achieve those aims"[7].
It is well known that, according to the ECHR, there are some requirements to accept an interference in fundamental rights as legitimate. These are, in short:
1) legal basis in domestic law;
2) the quality of the law: it must be accessible to the person concerned and must meet the foreseeability requirement (i.e., the law must be sufficiently accessible as to permit citizens to know its meaning and foresee the consequences of their behaviour);
3) legitimate aims according to Article 8 § 2;
4) necessity of the measure in a democratic society to achieve those aims.
The Kruslin and Huvig judgments, as it is stated in the case of Valenzuela Contreras v. Spain[8]), mentioned the minimum safeguards that should be set out in the law in order to avoid abuses of power: "a definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations, the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence and the circumstances in which recordings may or must be erased or the tapes destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court[9]."
The above mentioned case law of the ECHR has clearly influenced the case law of the Spanish Constitutional Court and Supreme Court when establishing the constitutional and legal requirements for the interception of communications within a criminal investigation. We will now analyse to what extent the wire tapping in the Spanish criminal procedure complies with the requirements stated by the ECHR.
The ECHR - in the decisions Valenzuela Contreras v. 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. According to the ECHR case law, an interference with the rights enshrined in Art. 8 § 1 of the Convention is permissible only when it has been done "in accordance with the law":
"The expression 'in accordance with the law' implies that there must be a measure of protection in domestic law against arbitrary interference by public authorities with the rights safeguarded in Articles 8 § 1. Within the meaning of Article 8 § 2, it requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must
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moreover be able to foresee its consequences for him, and compatible with the rule of law"[10].
The requirement of foreseeability implies that the domestic 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. United Kingdom). Furthermore,
"the requirement that the effects of the 'law' be foreseeable means, in the sphere of monitoring telephone communications, that the guarantees stating the extent of the authorities' discretion and the manner in which it is to be exercised must be set out in detail in domestic law so that it has a binding force which circumscribes the judges' discretion in the application of such measures"[11].
Thus, the first issue to be addressed is whether the Spanish law meets the foregoing requirements derived from Art. 8 § 2 of the Convention as interpreted by the ECHR.
As to the legal basis, in the case of Valenzuela Contreras v. Spain the ECHR did not questioned the existence of a legal basis to issue interception orders. In spite of the fact that in that particular case the warrant was issued before the Implementing Law 4/1988 entered into force - and therefore the basis for the judge's order was at that time only Art. 18(3) of the Spanish Constitution -, the ECHR admitted that there was a legal basis (though insufficient). In consequence, if the general provisions of the Constitution where considered to constitute a "legal basis", it seems obvious that, after the modification of Article 579 CCRIMP in 1988, there is a legal basis for an interception of telephone communications ordered by an investigating judge. The next question to be answered is whether this legal provision meets the requirements of the ECHR.
In the Valenzuela Contreras judgment, the European Court decided that there had been a violation of Article 8, for "Spanish law, both written and unwritten, did not indicate with sufficient clarity at the material time the extent of the authorities' discretion in the domain concerned or the way in which it should be exercised"[12]. Although 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. We should keep in mind that, in that particular case, the tapping of the telephone line was ordered under 18(3) of the
Spanish Constitution, the only provision at the time that mentioned the telephone interception, for the Implementing Law 4/1988 had not been enacted yet.
It is important to emphasize that the Court in this judgment recognised "the efforts made by the legislature and the judicial authorities to introduce in both legislation and practice in Spain the guarantees required in this sphere by the Convention"[13]. But the Court notes, however, that those developments have taken place well after the order for the tapping of the applicant's telephone line had been given. The ECHR considered that some of the conditions necessary under the Convention to ensure the foreseeability of the effects of the "law" and, consequently, to guarantee respect for private life and correspondence were not included either in Article 18(3) of the Constitution or in the provisions of the Code of Criminal Procedure[14]. 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. Spain[15] the ECHR held again that there had been a violation of Art. 8 of the European Convention. In this case the interception of the telephone was granted under Article 579 CCRIMP as modified in 1988. However, the ECHR judged that this legal provision was too vague and deficient to meet the guarantees required by the Court's case-law in order to provide adequate protection against the risk of abuse by public authorities[16]. The ECHR noted that, although the Implementing Law 4/1988 had been undeniably a step forward in the Spanish law, there were still certain deficiencies at the time when the telephone tapping was ordered.
In the ECHR's view, the deficiencies of Art. 579 CCRIMP have been remedied, up to a great extent, by the case law of the Constitutional Court and the Supreme Court, especially since the Supreme Court decision (auto) of 18 June 1992 (Naseiro case). 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. 8 of the European Convention[17].
In order to meet the requirements of the ECHR's case law, the Spanish Supreme Court reached the following conclusions in its landmark decision of 18 June 1992 (Naseiro case). It is worth transcribing them literally:
"In summary, the violations that render evidence obtained from telephone tapping inadmissible and determine its
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effects are as follows:
(1) Lack of evidence. Lack of sufficient reasoning
Lack ... of evidence capable, in the judge's view, of justifying a measure restricting fundamental rights to the extent telephone tapping does; mere suspicion on the part of the police, which in principle serves as the basis for the court's decision, cannot suffice.
(2) Lack of supervision
There was an almost total lack of any form of judicial supervision of the actual monitoring of the telephone concerned, which must necessarily be effected in compliance with the proportionality principle, which indeed can only be established through the reasoning, by, for example, listening to conversations recorded over reasonable periods in order for progress in the investigation (in this case a police investigation) to be checked and a decision taken as to whether or not expressly to extend the measure/surveillance - which, moreover, should not be for more than a reasonable period - in accordance with the principles laid down by the Code of Criminal Procedure.
(3) Periodic review. 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 ... so that they may henceforth take such action as they deem appropriate. ...
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 ... but it must cease to remain secret once the investigation has ended. ...
(4) Divergence between the monitoring and the investigation
... 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 ... , during the course of the originally authorised monitoring, it appears possible that one or more new offences may have been committed. At that point ... the police must, without delay, immediately inform the investigating judge who authorised/ordered the monitoring so that he may consider the question of his jurisdiction and the requirement of proportionality ... A blanket authorisation may not be given; nor, without a fresh, express authority from the judge, can the measure/surveillance continue if the new presumed offence revealed on the telephone is found to be independent of the offence covered by the original authorisation. 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. ...
(5) Production of copies rather than originals
There will also be a violation where the measure fails to comply with the Constitution and all the legislation
(Article 579 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. ... as the judge, in the registrar's presence, must select, in the manner he deems appropriate, what is relevant to the investigation ordered by him while the remaining recordings must be kept in the registrar's custody, thereby precluding any undesired or undesirable knowledge of conversations beyond the scope of the decision to monitor. 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 gravity must always be proportionate to what is, in principle, an intolerable interference with private life. ...
(6) Finding of proportionality
On that basis, it is necessary to consider whether or not the preventive measures used were proportionate to the aim pursued. ... 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. ...
(7) Determination of the measure and its limits
... The judicial authority must state what form the measure is to take and ensure that it is implemented with the least possible harm to the person affected by it. ..."
The Naseiro case was the first judicial decision where a Spanish Court defined precisely and in a complete way which are the conditions the telephone interception must comply with[18]. After this Supreme Court decision, the Constitutional Court rendered its judgment 49/1999[19], stating in full detail the legal and constitutional requirements that the measure of telephone tapping must meet in order to be lawful and admissible as evidence. It must be noted that in the Spanish legal system the Constitutional Court decisions are binding precedents and oblige all the inferior courts. Thus, after the important judgment 49/1999 the same requirements have been reiterated by a great number of decisions of diverse Spanish courts[20].
The above mentioned reference to the judgment Prado Bugallo reveals that, in the ECHR's view, the current Spanish law - legislation plus case-law -meet the requirements of the ECHR case law with regard to the lawfulness of the telephone interception within a criminal investigation according to Art. 8 § 2 of the Convention. In effect, the legislative reform of 1988, together with the well-established case law of the Spanish courts since 1992 -reinforced after the unification of the constitutional doctrine since 1999, constitute a body of law on telephone tapping that is adequate to provide a sufficient legal basis for the interception of telephone communications. This has
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been explicitly recognized by the ECHR in its recent decision Abdulkadir Coban v. Spain[21] .
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. 579 CCRIMP in order to define more precisely the nature of the offences that may justify telephone interceptions. Indeed, Spanish scholars, as well as the Constitutional Court itself[22], have 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. 579 CCRIMP and by the case law of the Court are respected[23].
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 before, Article 10(2) of the Spanish Constitution requires that the rules relating to fundamental rights be construed in accordance with the international treaties ratified by Spain. Among them, the European Convention on Human Rights has a special significance. According to Art. 8 of the European Convention, an interference with the individual's right to privacy is justified only when it "is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
It is clear, therefore, that the investigation of a crime within a criminal procedure is one of the aims that justifies the measure of phone tapping -provided that the rest of the formal and material requirements are complied with.
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.e. to obtain data of substantial value that will elucidate the investigation of the crime at issue. The interference should be likely to produce results or material to aid in the investigation.
The necessity of the measure: The measure must be needed. 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[24]. This means that the criminal facts at issue must be sufficiently serious, in themselves and in consideration of their social consequences.
Contrary to the legislation of other countries - as the German Strafprozessordnung, § 100 a StPO[25] -, 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 1992[26] ). Subsequently, the Spanish jurisprudence has repeatedly held that one of the requirements of the legality and the constitutionality of the judicial warrant for the interception of communications is "the existence of an ongoing investigation in relation to a fact that constitutes a punishable offence that is serious from the perspective of both the legal interest under protection and of its social relevance"[27]. In addition, the Constitutional Court has affirmed that the proportionality of the measure must be considered "through an analysis of the circumstances existing at the time it was accorded"[28]. 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.
The Spanish Constitutional Court - in its decisions STC 299/2000, of 11 December 2000, and STC 82/2002, of 22 April 2002 - decided in favour of the proportionality of the phone tapping, although it had been ordered within the investigation of a less serious crime (smuggling of tobacco with a maximum of three years custodial penalty). The Court's main arguments were the following: 1) the seriousness of the crime is not determined exclusively by its penalty; 2) in cases of big scale smuggling, the facts
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have a considerable social and economic impact, and therefore deserve a more serious social reproach; 3) it is necessary to take into account the fact that the crime has been committed by a complex organization, and the potential efficacy of those organizations in their activity against the social and public interests guaranteed by the legal system.
According to Article 579 CCRIMP, the investigating judge can only issue an order authorizing the tapping of a telephone where there is a presumption that a specific offence has been committed - "mere suspicion on the part of the police, which in principle serves as the basis for the court's decision, cannot suffice"[29]. 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 terms of a certain percentage of probability that the suspect is guilty.
The Spanish case law, interpreting Art. 579 CCRIMP, has repeatedly defined the characteristics of the necessary circumstantial evidence. 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[30].
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[31].
According to art. 18(3) SC and to Article 579 CCRIMP, only a judge can issue the warrant for the interception of telephone communications. The only exception is established by Art. 579(4) CCRIMP, previously cited[32].
The judicial warrant must be founded, explaining the legal as well as the factual grounds that justify the limitation on a fundamental right. Article 120(3) SC requires that judgments be duly reasoned. In this regard, the Constitutional Court has held that "the constitutional duty to provide a sufficient reason for the judicial decisions limiting fundamental rights, and to make explicit in them the circumstances that justify the limitation, is a formal requirement derived from the proportionality principle and is aimed at making possible to discuss and verify the legality and rationality of those judicial resolutions"[33].
The rationale of the decision must contain the necessary indications that the material requirements of the measure have been complied with, i.e. the judgment on the adequacy of the measure, on its necessity and on its proportion to the investigated offence. 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 that 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[34]. 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 the 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 reports that accompany the police applications. Sometimes even warrants issued through a standard printed form have been accepted - although this is not a desirable practice - as far as the report of the relevant police application permits to assess the factual grounds of the judge's order.
In addition, the judicial warrant has to express: 1/ The telephone number/s to be intercepted. Ac-
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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[35]. Art. 579(3) CCRIMP specifically foresees the possibility of intercepting a telephone other than the one under the name of the person charged when there are enough data to presume that this particular telephone is being used for criminal purposes.
2/ The identity of the persons whose conversations are to be intercepted. As a rule, only the suspects' conversations can be tapped, and these have to be identified in the warrant. If their names are unknown at that stage of the investigation, they may be identified with the nicknames they use.
3/ The type of crime that is being investigated. 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.
4/ The period of time for which the interception is authorised. Art. 579 CCRIMP permits the tapping for a period of three months, which may be extended. However, the measure must be authorised only for the period of time that seems strictly necessary for the result of the investigation[36].
5/ The date or period of time within which the results of the investigation must be transmitted to the authorising judge. The judicial warrant must express in what time the police shall 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.
6/ The determination of the person or persons that will carry out the phone interception. 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[37]. 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 in the oral proceeding.
The judicial warrant granting the time extension of the telephone tapping must be also founded upon legal and factual grounds. 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.
According to the Constitutional Court's case law, the extension may be granted only if the results obtained until then show that the renewal of the warrant is necessary[38]. 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 has held that the judge is bound to listen to all the recordings. For the same reason, the decision authorising the renewal of the warrant does not become void by the fact that, at the time of the decision, the entirety of the recordings - or their transcript - were not at the judge's disposal[39].
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. 18(3) SC, if: a) the judicial warrant does not state the dates in which the investigating unit has to report the results to the investigating judge; b) the time for reporting has not been respected; c) the judge, for whatever reason, does not keep track of the development of the telephone tapping[40]. 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. Thereby it is possible to verify that the judge has received accurate information in order to keep track of the results of the investigation.
Furthermore, the selection of the useful recordings
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can not be done by the police. All the tapes with the recording of the intercepted conversations must be conveyed to the court. More precisely, for the purposes of the renewal of the telephone tapping, it is sufficient that the police convey to the court a transcript of selected conversations; but, for the purposes of using the recordings as evidence at trial, the investigating judge only, and not the police, is allowed to make the selection of conversations[41]. Therefore, the police must provide all the tapes with the totality of the conversations, no matter whether they are considered useful or not for the case. Otherwise, the tapes would not be admitted as evidence. If the police attaches to the tapes a transcript of the conversations, the registrar of the court (secretario judicial) must compare the transcript with the recordings. If the police provide no transcript, the registrar will be in charge of producing the transcript and authenticating their content.
The judge shall make the selection of those conversations that are relevant for the facts under investigation in the presence of the registrar of the court. There is no a clear position on whether all the interested parties must be present in this selection process. The largest part of Spanish scholars and part of the case law hold that all the parties must be given the opportunity to be present in that process[42]. In practice, however, it is not unusual that the selection is made by the judge without hearing the parties and only the selected recordings are transcribed; however, the original complete recording is kept in order to make it possible to listen to its integral version in the oral trial[43].
What occurs if no selection of conversations has been made, or if the registrar does not compare the transcript provided by the police with the recordings? These are considered deficiencies or irregularities that can be corrected, provided that it is possible to hear the complete original recording at the trial.
The regulation of the telephone tapping was introduced quite late in the statutory provisions of the Spanish Code of Criminal Procedure, and not until the ECHR stated that the lack of a specific regulation constituted a violation of art. 8 of the European Convention. As a consequence, the law was changed to meet the ECHR requirements of "legal basis", but unfortunately in a very incomplete manner. The Article 579 CCRIMP, as reformed in 1988, still did not comply with the required foreseeability standard, as declared in the case Prado Bugallo. The insufficiency of the statutory provisions has been completed with a well defined and clear case law, specially since the Spanish Constitutional Court's decision 49/1999. In the last fifteen years, the Spanish Constitutional Court has established a precise doctrine about the necessary conditions of lawful telephone tapping.
Certainly, a more detailed legislation of telephone tapping in the Code of Criminal Procedure seems much more appropriate for the Spanish legal system. But the fact that the statutory provisions are to be completed with the case law is not contrary to the Spanish legal order and does not entail lesser guarantees for the citizens.
At present, it can be affirmed that the telephone tapping provisions in Spain are in full compliance with the standards set by the ECHR and that the requirements set out by the Spanish Constitutional Court constitute a broad safeguard against interferences with the right to the privacy of communications. Actually, the fact that the warrant can only be issued by a judicial authority entails a guarantee beyond the standards required by the ECHR.
Still, there are some points that can be improved. In my opinion, the accepted practice that the judicial warrants are deemed fully reasoned if the police reports attached to them permit to establish the factual grounds, is not the best of the solutions. The judicial warrant should be complete in itself, even at the cost of demanding more time from the investigating judges.
Furthermore, a precise regulation on the protection of the third parties affected by the telephone tapping is also missing and should be completed in a future reform[44]. There is a general agreement in legal scholarship about the prohibition to intercept the telephone of the defending lawyer[45], but there is no legal provision that states it clearly. Confusion exists also in regard with the possibility of the interception of communications of the suspect with persons who are obliged to respect confidentiality[46]. Could the conversations with a doctor be tapped? And those communications regarding the fundamental right to religious freedom? It is true that these situations do not often appear during the surveillance of a criminal suspect. But they are not unusual either. We only have to think of the conversations between a suspect and a religious leader. Are they confidential as they belong to the sphere of religious freedom, and therefore not possible to be tapped? Or, on the contrary, can they be tapped if there are enough grounds to issue the warrant, regardless the religious condition of the person involved in the conversation? These issues are not expressly regulated and should be considered in a future reform. ■
NOTES
* This paper has been written within the Research Project «Integración europea y armonización de las garantías fundamentales» (SEJ2005-05719), funded by the Spanish Ministry of Education.
[1] In general, on the telephone tapping in Spain see, J. López Barja De Quiroga, Las escuchas telefónicas y la prueba
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ilegalmente obtenida, Madrid 1989; T. López-Fragoso Álvarez, Las intervenciones telefónicas en el proceso penal, Madrid 1991; R. Martin Morales, El régimen constitucional del secreto de las comunicaciones, Madrid 1995; J. Montero Aroca, La intervención de las comunicaciones telefónicas en el proceso penal. Un estudio jurisprudencial, Valencia 1999; J.L. Gómez Colomer, La intervención judicial de las comunicaciones telefónicas a la luz de la jurisprudencia, in Revista Jurídica de Catalunya núm.1 (1998), 145-167.
[2] V. Moreno Catena, "Garantía de los derechos fundamentales en la investigación penal", in Jornadas sobre la justicia penal en España, CGPJ, Madrid 1987, 155-161.
[3] There was no mention of the wire tapping, as to the time this provision was enacted no telephones existed. It should be noted that the legislator should have introduced the necessary amendments long before 1988.
[4] See T. López-Fragoso Álvarez, cit., 30-35.
[5] Paragraph 4 of Article 579 provides that, in urgent cases regarding offences committed by armed bands or terrorist groups, the interception of the telephone calls may be authorised by the Ministry of Home Affairs or the Director for the State Security, whose order that has to be communicated to the judge within 72 hours. The judge will revoke or confirm it in a reasoned decision.
[6] Art. 10(2) SC: "Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.". Art. 96(1) SC: " Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law." See L. Martín Retortillo, La recepción por el Tribunal Constitucional de la Jurisprudencia del Tribunal Europeo de Derechos Humanos, RAE, núm 137 (1995), págs. 7-29.
[7] See, among others, Klass and Others v. Germany, 6.9.1978; Malone v. United Kingdom, 2.8.1984; Kruslin v. France, 24.4.1990 and Huvig v. France, 28.9.1995; Kopp v. Switzerland, 25.3.1998; Valenzuela Contreras v. Spain, 30.7.1998; Amman v. Switzerland, 4.5.2000; and, Prado Bugallo v. Spain, 8.2.2003.
[8] Prado Bugallo v. Spain, § 46.
[9] Loc. cit. p. 24, § 35, and p. 56, § 34, respectively.
[10] Case Huvig v. France.
[11] Valenzuela Contreras v. Spain, § 60. In the same sense, also, Kruslin v. France; Huvig v. France; Kopp v. Switzerland.
[12] Valenzuela Contreras v. Spain, § 61.
[13] Valenzuela Contreras v. Spain, § 58.
[14] Valenzuela Contreras v. Spain, § 59.
[15] Prado Bugallo v. Spain, 18.2.2003.
[16] Prado Bugallo v. Spain, §§ 29-30.
[17] Prado Bugallo v. Spain, §§ 31-32.
[18] Vid. A. Montón Redondo, Las interceptaciones telefónicas constitucionalmente correctas, "La Ley" 1995-4, págs. 1043-1052; V. GIMENO SENDRA, Las intervenciones telefónicas en la jurisprudencia del Tribunal Constitucional y del Tribunal Supremo, "La Ley", 1996-2, págs. 1617-1624.
[19] STC 49/1999, 5.4.1999.
[20] See, for instance, the following decisions of the Spanish Constitutional Court: STC 239/1999, 20.12.1999; STC 47/2000, 17.2.2000; STC 126/2000, 16.5.2000; STC 299/2000, 11.12.2000; STC 202/2001, 15.10. 2001; STC 87/2002, of 22.4.2002; STC 167/2002, 18.9. 2002; STC 184/2003, 23.10. 2003; STC 165/2005, 20.6.2005; STC 205/2005, 18.7.2005; and STC 26/2006, 30.1.2006. See also the following decisions of the Supreme Court: STS 25.6.1993; STS 2.7.1993; STS 5.7.1993; STS of 26.1.1994; STS of 7.5.1994; STS of 20.5.1994; STS of 15.2.1996; STS of 2.4.1996; STS 10.3.1997; STS 22.4.1998; STS of 24.1.2000; STS 3.3.2000; STS 10.2.2001; STS 18.6.2001; STS 25.6.2001; STS 30.1.2002; STS 4.4. 2002; STS 24.4.2002; STS 4.7.2003.
[21] Abdulkadir Coban v. Spain, 26.9.2006.
[22] SSTC 96/1996, 30.5.1996; 235/1999, 20.12.1999, and 184/2003, 23.10. 2003.
[23] See the decisions of the Constitutional Court 49/1999 and 184/2003.
[24]About the principle of proportionality see, W. DEGENER, Grundsatz des Verhältnismääigkeitsprinzips und strafprozessuale Zwangsmaßnahmen, Berlin 1985
[25] See, A. NACK, § 100 StPO in Karlsruher Kommentar Strafprozessordnung, 5[th] ed., München 2003, 472-483.
[26] See § 6, quoted in section 3.B of this paper.
[27] Constitutional Court's decision STC 166/1999, 27.9. 1999, § 3.a.
[28] STC 126/2000, 16.5. 2000, § 8.
[29] See, for example, the Supreme Court decisions of 18.6.1992, 16.11 1992, 5.7. 1993, 11.11.2004, 6.4.2006 and 14.2.2007.
[30] STS of 11.11.1996, STS 6.5.1997 or STS 10.10.1998. See also the Constitutional Court's decision STC 184/2003, of 23.10.2003, § 11, in which the Court held that it was unconstitutional to issue a warrant of phone tapping on the exclusive basis of an anonymous denunciation of a possible crime of corruption.
[31] In the judgment 165/2005, 20.6.2005, the Constitutional Court stated that the fact that a person did not have a job, but spent great sums of money, was not ground enough to issue a warrant, as this is not an objective fact that defines the necessity of the phone tapping.
[32] See supra, note 5.
[33] See STC 47/2000, 17.10. 2000.
[34] Supreme Court's decision, STS 24.4. 2002.
[35] Supreme Court's decision STS 18.6. 1992.
[36] Supreme Court's decision STS 9.5.1994.
[37] Supreme Court's decision STS 2.12.1995.
[38] SSTC 49/1999, 5.4.1999, and 171/1999, 27.9.1999.
[39] Constitutional Court's decisions STC 202/2001, 15.10.2001, STC 82/2002, 22.4. 2002, and ATC 25.2.2002.
[40] Constitutional Court's decisions STC 166/1999, 27.9.1999, and STC 202/2001, 15.10. 2002.
[41] See, e.g., the Supreme Court's decisions STS 23.1.1995; STS 4.2.1998. and STS 25.6. 1993. In the same sense, J. Montero Aroca, La intervención de las comunicaciones telefónicas en el proceso penal, Valencia 1999, pp. 246-247.
[42] See STS 25.6. 1993. In the same sense, J. Montero Aroca, La intervención de las comunicaciones telefónicas en el proceso penal, Valencia 1999, pp. 246-247. However, there are other decisions that do not require any hearing of the parties in the selection process (see the Supreme Court's decisions STS 17.10.1994, and STS 23.1.1995).
[43] STS 4.11.1994.
[44] As stated in the case Amman v. Switzerland, where the ECHR criticised the absence of special protection for third persons whose conversations where heard by chance.
[45] See. J. Jiménez Campo, La garantía constitucional del secreto de las comunicaciones, "RDC", 1987, núm. 20, págs. 3582, 51. See also the ECHR decision S. v. Switzerland, 28.11.1991.
[46] See L. Bachmaier Winter, Intervenciones telefónicas y derechos de terceros en el proceso penal. La necesidad de una regulación legal del secreto profesional y de otras relaciones
Lábjegyzetek:
[1] The Author is a Profesora Titular de Derecho Procesal Universidad Complutense, Madrid.
Visszaugrás
