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Interception of communications in Spanish criminal proceedings
Quick answerThe interception of telephone and electronic communications requires judicial authorisation subject to the principles of specificity, suitability, exceptionality, necessity and proportionality under article 588 bis a of the Criminal Procedure Act, and is available only for the offences listed in article 579.1 or offences committed through information technologies. The initial maximum duration is three months, extendable up to eighteen.
Also cited as: telephone tapping · interception of electronic communications · wiretap Spain · article 588 ter a Criminal Procedure Act · technological investigation measures
Organic Act 13/2015 gave technological investigation a complete statutory regime for the first time, replacing the terseness of the former article 579. The chapter of common provisions lays down five governing principles and eight mandatory contents of the authorising order, so that a challenge to an interception no longer rests on general formulae but on a literal comparison of the order against those requirements.
Legal framework
Article 588 bis a of the Criminal Procedure Act: every technological investigation measure requires judicial authorisation in full compliance with the principles of specificity, suitability, exceptionality, necessity and proportionality. The principle of specificity expressly prohibits authorising measures aimed at preventing or detecting offences or at dispelling suspicions without an objective basis.
Article 588 bis c of the Criminal Procedure Act: the judge rules by reasoned order, having heard the public prosecutor, within a maximum of twenty-four hours. The order must specify the offence and its legal classification with an account of the reasonable grounds, the identity of those affected, the extent of the interference with reasons as to the governing principles, the judicial police unit in charge, the duration, the form and frequency of reporting, the purpose pursued and the party under a duty to comply, with express mention of the duties of cooperation and secrecy.
Article 588 ter a of the Criminal Procedure Act: authorisation may be granted only where the investigation concerns one of the offences under article 579.1 or offences committed through computer instruments or any other information or communication technology or service.
Article 579.1 of the Criminal Procedure Act: intentional offences punishable by a maximum of at least three years’ imprisonment; offences committed within a criminal group or organisation; and terrorist offences.
Article 588 ter g of the Criminal Procedure Act: the initial maximum duration of the interception, running from the date of the judicial authorisation, is three months, extendable for successive periods of the same length up to a maximum of eighteen months.
Article 588 ter i of the Criminal Procedure Act: once secrecy is lifted and the measure has expired, the parties are given copies of the recordings and transcripts, and any party may request the inclusion of relevant communications that have been excluded.
Statutory texts cited from the consolidated versions published by the Spanish Official State Gazette. Unofficial English rendering; the Spanish text is the authentic one.
Key rule. The reasoning of the order is not satisfied by a reference to the police request. Article 588 bis c requires eight specific contents and independent reasoning on each of the five governing principles; their absence opens the route of article 11.1 of the Judiciary Act.
Key facts
| Regime in force | Organic Act 13/2015, in force since 6 December 2015 |
|---|---|
| Right affected | Secrecy of communications, article 18.3 of the Constitution |
| Governing principles | Specificity, suitability, exceptionality, necessity and proportionality |
| Qualifying offences | Article 579.1 and offences committed through information technologies |
| Form | Reasoned order of the investigating judge, having heard the public prosecutor |
| Time to decide | Twenty-four hours from the request |
| Initial duration | Three months from the authorisation |
| Maximum duration | Eighteen months through successive extensions |
| Procedure | Separate and secret file, without any need to declare the case secret |
| Access by the parties | Copies of recordings and transcripts once secrecy is lifted, article 588 ter i |
Elements and scope
- Prior and objective reasonable grounds. Specificity requires the measure to be tied to an already defined offence; the prohibition of fishing expeditions bars authorisations intended to dispel suspicions without an objective basis.
- Effective subsidiarity. Exceptionality and necessity require reasoning as to why less intrusive and equally useful measures would not suffice, or why without the interference the investigation would be seriously hampered.
- Definition of the objective and subjective scope. The order must identify the specific terminals or identifiers and the persons affected, without open-ended clauses allowing the measure to be extended.
- Periodic judicial supervision. The order fixes the form and frequency of police reporting, and any extension requires a fresh balancing exercise in the light of the results obtained so far.
- Deferred confrontation. Once secrecy is lifted, the defence gains access to the full recordings and may request the inclusion of excluded communications that are relevant, including exculpatory material.
Points of application
Reasoning by reference. An order may refer to the police request provided that the latter contains the objective data enabling the proportionality assessment, but not where the request merely asserts suspicions or invokes confidential sources with no verifiable substance.
Chance discovery. Detection of an offence other than the one under investigation requires a judicial order extending the measure and reassessing the governing principles; without it, the material has no evidential effect as regards the new offence.
Connection of unlawfulness. Nullity of the interception extends to derivative evidence, unless there is an independent source, inevitable discovery, or a confession made with sufficient information about the prior unlawfulness.
Verification and authenticity. Failure by the court clerk to verify the transcripts does not of itself render the interception void, but it reduces their evidential value, and they must be replaced by listening to the recordings at trial.
Automatic extensions. An extension granted without examining the results obtained and without a fresh assessment of necessity suffers from the same defect of reasoning as the original order.
Defence strategy
Obtain the complete separate file. The defence must secure the initial police request, the order, the periodic reports and the extension orders; without the full record the chain of authorisations cannot be verified.
Compare the order against the eight contents of article 588 bis c. The examination must be literal: offence and classification, reasonable grounds, persons affected, extent, unit in charge, duration, reporting frequency, purpose and party under a duty to comply.
Challenge the objective basis of the grounds. Unverified confidential sources, generic police suspicion and the subject’s previous record do not amount to sufficient reasonable grounds.
Examine each extension separately. Every extension requires its own reasoning on the results obtained; an extension that merely reproduces the original order can be challenged in its own right.
Request the inclusion of exculpatory communications. Article 588 ter i allows relevant communications excluded from the transcript to be added, which is decisive where the police selection has been one-sided.
Raise nullity as a preliminary issue and repeat it in the final submissions. The plea under article 11.1 of the Judiciary Act must be made at the opening of the trial and maintained in the final submissions in order to preserve the route of appeal.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 23 September 2026.
Frequently asked questions
Which offences allow a telephone to be tapped in Spain?
Intentional offences punishable by a maximum of at least three years’ imprisonment, offences committed within a criminal group or organisation, terrorist offences, and offences committed through computer instruments or other information technologies.
How long may an interception last?
Three months as the initial maximum, extendable for successive periods of the same length up to a maximum of eighteen months, under article 588 ter g.
Can the police intercept communications without judicial authorisation?
Not under the ordinary regime. Only article 579.3 provides for an urgent authorisation by the Minister of the Interior or the Secretary of State for Security in offences connected with armed gangs or terrorist elements, with immediate notification to the judge and confirmation or revocation within seventy-two hours.
When does the defence gain access to the recordings?
Once secrecy is lifted and the measure has expired, under article 588 ter i, which requires copies of the recordings and of the transcripts to be handed over.
What happens if the order is insufficiently reasoned?
The interception is void for breach of article 18.3 of the Constitution and the material obtained can have no effect, to the extent determined by the connection of unlawfulness as regards derivative evidence.
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