Article 282 bis Spanish Criminal Procedure Act: Undercover agents

1. For the purposes provided for in the preceding article, and where the investigations affect activities proper to organised crime, the competent investigating judge, or the public prosecutor giving immediate notice to the judge, may authorise officers of the judicial police, by a reasoned decision and having regard to its necessity for the purposes of the investigation, to act under an assumed identity and to acquire and transport the objects, effects and instruments of the offence and to defer their seizure. The assumed identity shall be granted by the Ministry of the Interior for a period of six months, renewable for periods of the same duration, the officers being lawfully entitled to act in everything relating to the specific investigation and to take part in legal and social relations under that identity.

The decision ordering the measure must record the true name of the agent and the assumed identity under which the agent will act in the specific case. The decision shall be confidential and must be kept outside the file with due security.

The information which the undercover agent obtains must be brought as soon as possible to the knowledge of the authority which authorised the investigation. That information must likewise be produced in the proceedings in its entirety and shall be assessed in conscience by the competent judicial body.

2. Officers of the judicial police who have acted in an investigation under a false identity in accordance with the provisions of paragraph 1 may maintain that identity when they testify in the proceedings which may arise from the acts in which they intervened, provided that it is so ordered by a reasoned judicial decision, the provisions of Organic Act 19/1994 of 23 December being also applicable to them.

No officer of the judicial police may be compelled to act as an undercover agent.

3. Where the acts of investigation may affect fundamental rights, the undercover agent must apply to the competent judicial body for the authorisations which the Constitution and the law establish in that regard, and must comply with the other applicable legal provisions.

4. For the purposes indicated in paragraph 1 of this article, organised crime shall be taken to mean the association of three or more persons in order to carry out, on a permanent or repeated basis, conduct having as its purpose the commission of one or more of the following offences:

a) Offences of obtaining and unlawful trafficking in human organs and their transplantation, provided for in Article 156 bis of the Criminal Code.

b) The offence of abduction of persons provided for in Articles 164 to 166 of the Criminal Code.

c) The offence of trafficking in human beings provided for in Article 177 bis of the Criminal Code.

d) Offences relating to prostitution provided for in Articles 187 to 189 of the Criminal Code.

e) Offences against property and against the socioeconomic order provided for in Articles 237, 243, 244, 248 and 301 of the Criminal Code.

f) Offences relating to intellectual and industrial property provided for in Articles 270 to 277 of the Criminal Code.

g) Offences against the rights of workers provided for in Articles 312 and 313 of the Criminal Code.

h) Offences against the rights of foreign citizens provided for in Article 318 bis of the Criminal Code.

i) Offences of trafficking in threatened species of flora or fauna provided for in Articles 332 and 334 of the Criminal Code.

j) The offence of trafficking in nuclear and radioactive material provided for in Article 345 of the Criminal Code.

k) Offences against public health provided for in Articles 368 to 373 of the Criminal Code.

l) Offences of counterfeiting currency, provided for in Article 386 of the Criminal Code, and of forgery of credit or debit cards or travellers cheques, provided for in Article 399 bis of the Criminal Code.

m) The offence of trafficking in and storage of weapons, ammunition or explosives provided for in Articles 566 to 568 of the Criminal Code.

n) Terrorism offences provided for in Articles 572 to 578 of the Criminal Code.

o) Offences against the historical heritage provided for in Article 2.1(e) of Organic Act 12/1995 of 12 December, on the suppression of smuggling.

5. The undercover agent shall be exempt from criminal liability for those acts which are a necessary consequence of the conduct of the investigation, provided that they maintain due proportionality with its purpose and do not constitute a provocation to commit an offence.

In order to proceed criminally against the agent for the acts carried out for the purposes of the investigation, the judge having jurisdiction over the case must, as soon as becoming aware of the intervention of an undercover agent in it, require a report as to that circumstance from the authority which authorised the assumed identity, in the light of which the judge shall determine what is appropriate.

6. The investigating judge may authorise officers of the judicial police to act under an assumed identity in communications maintained in closed channels of communication for the purpose of clarifying one of the offences referred to in paragraph 4 of this article or any offence provided for in Article 588 ter a.

The computer undercover agent, with a specific authorisation for that purpose, may exchange or send unlawful files by reason of their content and analyse the results of the algorithms applied for the identification of those unlawful files.

7. In the course of an investigation conducted by means of an undercover agent, the competent judge may authorise the obtaining of images and the recording of the conversations which may be held in the encounters arranged between the agent and the investigated person, even where they take place inside a dwelling.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.