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Introduction Until Spanish legislation did not expressly regulate telephone tapping as an investigative measure within criminal procedure. 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 ofas suisse anti aging 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 szürke anatómia diffúzió svájci anti aging achieve important practical goals 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 application to limit fundamental rights.
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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. This was the aim of the Implementing Law no.
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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. Therefore, since Art. In this regard, it is important to note that Art. On the other hand, it is also essential to bear in ofas suisse anti aging 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 ofas suisse anti aging.
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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 ofas suisse anti aging an interference with the fundamental right to the privacy of communications through the measure of telephone tapping.
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. Thus, the first issue to be addressed is whether the Spanish law 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 anti aging birodalom ECHR.
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. 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 ofas suisse anti aging 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, ofas suisse anti aging 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 gravity 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 legal system the Constitutional Court decisions are binding precedents and oblige all the inferior courts.
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In effect, the legislative reform oftogether with the well-established case law of the Spanish courts since —reinforced after the unification of the constitutional doctrine sinceconstitute a body of law on telephone tapping that is ofas suisse anti aging to provide a ofas suisse anti aging 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 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.
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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 ofas suisse anti aging 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.
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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.
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 ofas suisse anti aging with the seriousness of the offence and the circumstances in which the crime was committed in the ofas suisse anti aging 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 ofas suisse anti aging be assessed taking into account the penalty imposed by the law, the protected legal ofas suisse anti aging and the social relevance of the ofas suisse anti aging. There must be reasonable grounds to suspect that the person using the telephone is committing or participating in the commission of a crime.