Article 588 quinquies b Spanish Criminal Procedure Act: Tracking and location devices

Article 588 quinquies b permits the authorisation of technical devices for tracking and location where established reasons of necessity are present and the measure is proportionate, and it regulates the urgent placing by the judicial police subject to judicial ratification within twenty four hours.

Wording of Article 588 quinquies b of the Spanish Criminal Procedure Act

Requirements and procedure

1. Established reasons of necessity and the proportionality of the measure, assessed under Article 588 bis a.
2. A judicial authorisation specifying the technical means which is to be used.
3. The duty of cooperation of the providers and persons referred to in Article 588 ter e, under warning of the offence of disobedience.
4. In cases of urgency, the placing by the judicial police and the report to the judicial authority within a maximum of twenty four hours, followed by ratification or cessation within that same period.

Defence strategy

Specification of the technical means. Paragraph 2 requires the authorisation to identify the means to be used. A generic authorisation, or the use of a means other than that authorised, exceeds the judicial cover and is a ground for the exclusion of the data obtained.

Compliance with the periods in urgent cases. The urgent placing must be reported within twenty four hours and ratified within the same period. A report or a ratification which is out of time is not remedied retrospectively, and paragraph 4 itself provides that the information obtained shall have no effect.

Insufficiency of the reasons of necessity. The measure is subsidiary. Where the same result could have been obtained by ordinary surveillance or by data already held, the requirement of necessity is not met, which is the ordinary ground of challenge to the authorising decision.

Scope of the data obtained. Location data reveal the movements of persons other than the person under investigation. Contesting the retention and use of data unconnected with the object of the investigation limits the material which may be relied upon at trial.

• Article 588 bis a LECrim: guiding principles of technological measures
• Article 588 quater a LECrim: recording of oral communications
• Technological investigation measures in Spain
• Rights of the investigated person

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.