Article 588 bis a Spanish Criminal Procedure Act: Guiding Principles of Technological Investigation Measures

Article 588 bis a of the Criminal Procedure Act sets out the five principles that govern every technological investigation measure: specialty, suitability, exceptionality, necessity and proportionality. It is the provision the defence invokes first whenever a case rests on a tap, a device examination, a tracking device or a remote search, because it forbids measures aimed at preventing or detecting offences in general or at dispelling suspicions without an objective basis, and it obliges the court to weigh the sacrifice of rights against the public interest served.

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

Requirements and procedure

1. A judicial authorisation, which cannot be replaced by police or prosecutorial decision except in the urgent cases the chapter itself provides.
2. Specialty: a link to a specific offence under investigation, which excludes prospective measures and those aimed at dispelling unfounded suspicion.
3. Suitability: a definition of the objective scope, the subjective scope and the duration by reference to the usefulness of the measure.
4. Exceptionality, necessity and proportionality: the unavailability of less intrusive means, the serious hindrance of the investigation without the measure, and a weighing of interests based on the gravity of the act and the intensity of the existing indications.

Defence strategy

Prospective measures and the specialty principle. The second paragraph is the most useful sentence in the chapter. Where the application rests on generic intelligence, on an anonymous report, or on the assertion that a person is suspected of unspecified trafficking, the measure was sought to dispel suspicion without an objective basis and is prohibited. The defence obtains the police application as it stood on the date of the authorisation, since what matters is what the judge had before him, not what the measure later produced.

Absence of less intrusive means. Exceptionality requires that ordinary means were unavailable or insufficient. Where no prior investigative step had been taken, where surveillance had not been attempted, or where the information sought could have been obtained from a public source, the requirement fails. This is established by reading the file in chronological order and identifying what was done before the measure was requested.

Sufficiency of the reasons in the decision. The court must address the principles, not recite them. A decision that adopts the police application by reference, without its own reasoning on proportionality, is challenged on that basis. The case law admits reasoning by reference to the application only where the application itself contains the objective indications, so the defence examines whether it did.

Scope and duration. Suitability limits the objective scope, the subjective scope and the duration. An authorisation covering all the communications of several persons for an indeterminate period, or extended by standard form without a report on the results obtained, exceeds the article. Material obtained outside the authorised scope or period is excluded, and identifying that surplus is often more productive than attacking the measure as a whole.

• Article 588 ter a: interception of communications
• Article 588 sexies a: seizure of computers
• Article 588 octies: data preservation orders
• 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.