Article 579 Spanish Criminal Procedure Act: Interception of Correspondence and Postal Communications

Article 579 of the Criminal Procedure Act governs the interception, opening and examination of private, postal and telegraphic correspondence, and the observation of postal communications. It is important for two reasons that are easily missed. First, the measure is available only where the investigation concerns intentional offences punishable by at least three years, offences committed within a criminal group or organisation, or terrorism, which is the same catalogue that governs the interception of telephone and internet communications. Second, its fourth paragraph lists the cases in which no judicial authorisation is required at all, and those cases are what customs and postal inspections of parcels rely on.

Wording of Article 579 of the Spanish Criminal Procedure Act

Requirements and procedure

1. An investigation concerning one of the three categories of offence listed. The measure is unavailable for offences outside them, whatever the investigative interest.
2. A reasoned judicial decision identifying the correspondence, the person and the period, subject to a maximum of three months renewable up to eighteen.
3. Indications that the measure will produce the discovery or verification of a fact relevant to the case, which requires objective material and not a mere hypothesis.
4. For the cases in the fourth paragraph, that the item genuinely falls within one of them, which is determined by its external characteristics or by the applicable customs or postal rules.

Defence strategy

The offence investigated was outside the catalogue. The first thing to examine is whether the offence under investigation at the time the measure was ordered carried a maximum of at least three years, or fell within the group or terrorism categories. Where the investigation began as something less serious and the classification was raised afterwards, the authorisation was granted without a legal basis, and the material obtained is void. The defence obtains the separate and secret file in which the measure was processed and reads the application as it stood on that date.

Whether the item was correspondence at all. The fourth paragraph places outside judicial control items whose external characteristics show them to serve the transport of goods, items with a declaration of content and items inspected under customs or postal rules. Conversely, where a parcel did bear the characteristics of individual correspondence and was opened without authorisation on the assumption that it was merely goods, the opening was unlawful. This is the argument that arises in almost every case founded on a package intercepted at a postal or courier facility.

Duration, extensions and reasons. The measure is limited to three months, renewable up to eighteen. Extensions granted by standard form, without a report on the results obtained so far, and extensions granted after the previous period had expired are all challenged. The defence constructs a chronology of the decisions and their notifications, since a gap in the sequence renders void everything obtained in that interval.

Access to the separate file and the chain of custody. Because the measure is processed in a separate and secret file, the defence must apply expressly for access once the secrecy is lifted, and must then verify the chain of custody of the items intercepted: who opened them, in whose presence, whether the person under investigation or a judicial officer attended, and how the contents were recorded. Defects in the record of the opening deprive the material of evidential value even where the authorisation was lawful.

• Article 588 ter a: interception of communications
• Article 545: inviolability of the home
• Drug offences: defence service
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.