Article 588 quater a Spanish Criminal Procedure Act: Recording of direct oral communications

Article 588 quater a permits the authorisation of electronic devices for the capture and recording of the direct oral communications of the investigated person, in public places or in closed premises including the dwelling, and the complementary obtaining of images where the judicial decision so provides.

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

Requirements and procedure

1. A reasoned judicial decision meeting the general requirements of Articles 588 bis a and following, in particular those of specialty, suitability, exceptionality, necessity and proportionality.
2. Precise identification of the place in which the devices are to be placed and of the conversations which are the object of the measure.
3. Specific reasoning as to the appropriateness of access where entry into the dwelling or into a space intended for the exercise of privacy is necessary.
4. An express authorisation where the recording is to be complemented by the obtaining of images.

Defence strategy

Specialty of the authorisation. The measure is authorised for specific encounters and not as a general form of surveillance. A decision which authorises indefinite listening, or listening not linked to determinate meetings, exceeds the framework of Article 588 quater b and is capable of challenge in its entirety.

Reasoning as to entry into the dwelling. Paragraph 2 requires the reasoning to extend expressly to the access to the dwelling. Where the decision authorises the recording without ruling upon that access, the entry lacks judicial cover and the material obtained is unusable.

Obtaining of images without express authorisation. Paragraph 3 conditions the obtaining of images upon an express authorisation. Images captured without it are excluded, even where the recording of the sound was lawfully authorised.

Integrity of the recordings. The defence is entitled to the complete original recording and not to a selection of passages. Gaps, edits and the absence of a verified transfer of the master copy to the court are grounds which affect the evidential value of the material.

• Article 588 bis a LECrim: guiding principles of technological measures
• Article 588 sexies a LECrim: seizure of computer devices
• Technological investigation measures in Spain
• Disclosure of secrets and privacy offences

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.