Article 588 ter a Spanish Criminal Procedure Act: Interception of Telephone and Internet Communications

Article 588 ter a of the Criminal Procedure Act states the condition on which every telephone tap and every interception of internet communications in Spain depends: the authorisation may be granted only where the investigation concerns one of the offences listed in article 579.1, that is intentional offences punishable by at least three years, offences committed within a criminal group or organisation and offences of terrorism, or offences committed through computer instruments or any other information or communication technology or service. The provision is short, and it is the first point of attack whenever a case rests on intercepted communications.

Wording of Article 588 ter a of the Spanish Criminal Procedure Act

Requirements and procedure

1. An investigation concerning an intentional offence punishable by a maximum of at least three years, an offence committed within a criminal group or organisation, or an offence of terrorism.
2. Alternatively, an offence committed through computer instruments or through any information or communication technology or service, which is the head relied on in cases of online fraud and cybercrime.
3. A reasoned judicial decision identifying the line or account, the person, the duration and the offence under investigation.
4. Compliance with the guiding principles of article 588 bis a, which the judge must address expressly in the decision.

Defence strategy

The classification at the moment of authorisation. What matters is the offence under investigation when the measure was authorised, not the offence eventually charged. Where the tap was granted in an investigation into an offence carrying less than three years, and the more serious classification emerged only from what the tap produced, the authorisation was unlawful from the outset. The defence obtains the police application and the judicial decision as they stood on that date and compares them with the catalogue in article 579.1.

The scope of the technology head. The second head covers offences committed through information or communication technology. It is habitually invoked to bring within the article offences that were merely arranged by telephone, which is not the same thing: the technology must be the instrument of the offence and not merely the means of communication between the participants. Where the underlying offence is an ordinary one arranged by telephone, this head does not apply and the three-year threshold must be met.

Sufficiency of the reasons and of the underlying material. A tap cannot rest on anonymous information, on unverified intelligence or on the mere assertion that a person is suspected. The decision must set out the objective indications and address specialty, necessity and proportionality. The defence examines whether any prior investigative step was taken before the tap was sought, since the exceptionality requirement is not satisfied where ordinary means had not been attempted.

Duration, extensions and the integrity of the recordings. Extensions require a report on the results obtained and a fresh reasoned decision, and the total duration is capped. Beyond the authorisation itself, the defence verifies the integrity of the material: the completeness of the recordings, whether the transcripts were verified against the audio by a judicial officer, whether exculpatory passages were omitted, and whether the material relied on at trial corresponds to what was lawfully seized.

• Article 579: interception of correspondence
• Spanish Criminal Procedure Act by article
• Online fraud: 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.