Module IV. Dynamic and rules on informants and
methods and means of operations research:
Miguel Ángel Botello García, PhD
THE FUNDAMENTAL RIGHT TO THE SECRET OF COMMUNICATIONS
The recognition of the fundamental right is a guarantee and any acceptable course interception
thereof is presented as exceptional. Clashes between the individual right to privacy and the right of
the state to investigate and punish crimes.
Therunder is gathered, with international scope, in the Universal Declaration of Human Rights, he
International Covenant on Civil and Political Rights and European Convention for the Protection of
Human Rights and Fundamental Freedoms.
So the art. 8 of the European Convention points out:
1.- Everyone has the right to respect for his or her private and family life, home and correspondence
2.-Public authorities may interfere with the exercise of that right only in accordance with the law and
where necessary in a democratic society, inter alia, in the interests of national security or public safety,
welfare economic of the country, for the prevention of disorder or crime, for the protection of health
or morals, or the protection of the rights and freedoms of others. "
The Constitution in Art. 18.3 sets out: “Secrecy of communications, particularly
regarding postal, telegraphic, and telephone communication, is guaranteed,
except for infractions by judicial order”.
There is an obvious link between the secrecy of communications and personal and family
privacy. The doctrine distinguishes the existence of three areas: intimate, private and public.
Law may be violated both interception in a strict sense and by the simple unlawful knowledge
of what has been communicated (Supreme Court Judgment 230/07 of 5/11/07). The
constitutionally protected asset is the right of the holders to maintain the confidentiality of
private information, that no third party can intervene in the communication process and learn
the idea, thought or news broadcast by the media.
Any media will be protected, regardless of its content, because the concept of secrecy has a
formal character (including call lists).
In addition to article 18.3, the Spanish Constitution provides in Article 53.1 that only by law may
can be regulated the exercise of the rights and freedoms of the second chapter of Title I of the
This forecast contains three requirements:
Existence of a basis in domestic law(In Spain the Criminal Law, and Law 25/07 on Electronic Data
Retention, Royal Decree 424/05 where the use of the SITEL system is contemplated). The
Jurisprudence of the Constitutional Court and the Supreme Court.
- Accessibility of law for the person involved
- Predictability of law as to the meaning and nature of the measures applicable
INTERCEPTION OF TELEPHONE COMMUNICATIONS
They are a research instrument and further essential procedural accreditation in front of
criminal phenomena very important, organized crime groups. STS 722/08 of 26.12.08
(prosecution of an offense of money laundering).
A series of unavoidable requirements must be fulfilled for you to hold full evidentiary so you
can hold full evidentiary(Judgement of the Second Chamber of the Supreme Court 6855/11
of 19.10.11, 3362/11 of May 25, 592/10 of 20.05, 7141/08 of18.12.08).
The rightholder is kept in complete ignorance for the loss of their defense of his constitutional
right. STS 3567/08 of 30.06.08.
Must differentiate the constitutional relevance and procedural efficiency. Judgement of the
Second Chamber of the Supreme Court 1504/11 of 22.03, 542/10 de 25.05, 132/09 (3.02) and
A breach of the constitution will entail devastating effects to the body of evidence
obtained through "tracks" but not only for the direct result, but to all the
evidence, direct or indirect, arising from them (Article 11.1 of the Organic Law of the
Shall always be checked the existence of a true "causal link. “Disconnecting
unlawfulness(statement with guarantees that it is not contaminated). Judgment of
the Constitutional Court 72/10 of 18.10, Second Chamber of the Supreme Court
3349/11 of May 10, 556/10 of 10.06, 768/10 of15.09.
Omissions or procedural defects concerning to the procedural correctness of its
introduction at trial will extend only its shadow of unproductiveness to the diligence
and its results. Second Chambert of the Supreme Court 3902/11 of June 14, 1088/10 of
The violation of the fundamental right can mean the commission of an offense set
forth in Penal Code articles 197, 198 and 536. (The criminalization was the first which
included breach of secrecy of communications. Penal Code articles 192 bis and 497
General doctrine is contained in the Judgement of the Second Chambert of the
Constitutional Court 26/10 of 27.04, 72/10 of 18.10; Judgement of the Second Chambert
of the Constitutional Court 6855/11 of 19.10.11, 3362/11 of may 25, 3349/11 of may
10, 2432/11 of 20.04, 1792/11 of april 6:
II should contain objective data, subject to assessment by the Instructor to
form a belief about the opportunity and convenience of accepting the
claim. Objective data in two ways: a) accessible to third parties, b) provide
real basis on which has been or is about to commit a crime. It is not required
an exhaustive factual justification, because what is wanted is to deepen in
an unfinished research
Subjective statements should never be collected. Regarding the expression
"confidential sources or news“, it would be required a previous investigation
directed to verify the plausibility of the imputation and quoted in the police
request (judgment of the Second Chambert of the Supreme Court 7266/08
-19.12- in which the request was initally rejected, but must had been duly
justified. The source of knowledge and the known fact can not be the same
thing (differentiate between objective data and crime) as is stated by the
Supreme Court Decision 6646/08 (18.11).
CONTROL OF THE EXECUTION
Track of the strict compliance about what is authorized, facilitating regular, timely and frequent
information to the judge of the performance and results, submitting reports and the integrity of the tapes
(Judgement of the Second Chambert of the Supreme Court 2633/11 of 29.04, 746/10 -15.07-, 679/09,
422/09, 132/09, 7288/08 and 7141/08, also 14/08 of 18.01.08 and 104/08 of 4.02.08).
Avoid overreaching (excess, prolongation or unwarranted interference in other areas or rights of third
Avoid any defencelessness of the person subjected to intervention (Judgment of the Supreme Court
5049/11 of july).
The emergence of information that reveals a possible distinct crime forces immediate communication to
the Judge, to renew the authorization (Judgment of the Second Chambert of the Supreme Court 3891/11
of may 26 distinguish between the different intensity in a wiretap and entry and search 748/10 -23.07-).
Once completed, communication to the affected (Judgment of the Supreme Court 7288/08).
INTRODUCTION IN TRIAL
The contents of recordings can be introduced at trial directly or indirectly (Judgment of the Supreme
Court 3902/11 of 14 June), by the presence, as witnesses, of the police officers who made them
Judgement of the Supreme Court 1075 and 1085/10 of 2 and 20.12, the 966/09-24.02-denied value of
incriminating evidence, as neither proceeded to hearing, or reading transcripts properly collated.
Regarding the first, the form of the provision must be to the presence of the tapes obtained in the "tracks"
and the written transcripts of the conversations, especially those that offer concretized real evidentiary
interest. Judgement of the Second Chamber of the Supreme Court 7048/11 of 26.10.11, 2074/09-7.04.09-,
The contribution of the tapes by the police to Court, allows their hearing and possible forensic operations.
Judgement of the Supreme Court 441/10 of13.05.
Transcripts - quota-half shall be collated under the public faith of the Judicial Secretary, ensuring absolute
fidelity. Judgement of the Second Chamber of the Supreme Court 1009/10 of 10.11, 132/09 of 3.02.
IMSI (International Mobile Subscriber Identity): unique identification code embedded in the SIM card
for each mobile device, which enables identification through networks
GSM and UMTS. The IMSI consists of:
MCC: Country Code (3 digits)
MNC: Mobile Network Code ((2 or 3 dig; eg: 06 movistar)
MSIN:10-digit number that contains the identification of the mobile station
The IMEI (International Mobile Equipment Identity) is a pre-recorded on mobile phones GSM code.
This code uniquely identifies the device worldwide and is transmitted by the network device when
connecting to it. The IMEI code consists of four parts and follows the following scheme:
The first part (6 digits) is called Type Allocation Code (TAC), where the first two digits indicate the country.
The second part (two digits) is the Final Assembly Code (FAC) and indicates the equipment manufacturer.
The third part is the serial number of the phone.
The last digit (5) is the check digit, used to verify that the IMEI is correct.
HOW TO OBTAIN THE NUMBER
They are traffic data if they are seek to obtain from the operator(Law
Validity of screening without judicial authorization to locate the IMSI /
IMEI of the mobile phone ... Judgment of the Supreme Court 249/08
05/08/20: is governed by the Data Protection Law not for the Law of
Conservation Act Related to Public Electronic Communications
Networks and Communications:” technique collection or capture of
IMSI does not need judicial authorization, however, acquiring of full
functionality, by transferring the information available in the files of the
operator, will impose judicial review of their origin. “
WAY TO OBTAIN THE NUMBER
Way to proceed "technically reliable" Judgment of the Supreme Court 573/2012
Possibility to manipulate or alter the outcome of interventions in the
SITEL system is practically impossible. Judgment of the Supreme Court 410/2012, of 17 may
Authenticity of the disks out of the question Judgment of the Supreme Court 1215/09
The Integrity of recordings guaranteed by certification bodies as "AC CAMERFIRMA" (digital
certification authority of the Spanish Chambers of Commerce) »