Article 588 sexies a Spanish Criminal Procedure Act: Seizure of Computers and Access to Their Contents

Article 588 sexies a of the Criminal Procedure Act separates two things that police practice tends to merge: seizing a device and reading what is inside it. Where a search of premises is likely to involve the seizure of computers, telephones or mass storage devices, the judicial decision authorising the search must extend its reasoning to the access to the information they contain. And the second paragraph states the rule that decides most cases: the mere seizure of a device during a search does not legitimate access to its content, which requires a separate judicial authorisation.

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

Requirements and procedure

1. A search of premises in the course of which devices are seized or telematic repositories accessed.
2. A judicial decision whose reasoning extends specifically to the access to the information contained in the devices, and not merely to the entry and search.
3. Where that reasoning is absent, a subsequent and separate judicial authorisation before any examination of the content.
4. Compliance with the principles of specialty, suitability, exceptionality, necessity and proportionality of article 588 bis a in relation to the access.

Defence strategy

Seizure is not access. This is the argument the article was written for. Officers regularly examine a telephone at the premises or at the police station on the strength of the search warrant alone. The second paragraph forbids it. The defence establishes when the device was first examined, from the forensic report and the device logs, and compares that moment with the date of any authorisation for access. Where the examination came first, its product is excluded.

Consent given at the moment of seizure. Where access is said to rest on the owner’s consent, that consent must be free, informed and given by a person not under arrest or, if under arrest, with the safeguards. Consent obtained by presenting the examination as unavoidable, or by asking for the unlock code among other formalities, is contested, and the request for the code from a detainee engages the privilege against self-incrimination.

Scope of the authorisation granted. Even where access was authorised, the authorisation defines its limits: which device, which applications, which period. A general authorisation to examine the entire content of a telephone, without temporal or thematic limitation, is disproportionate under article 588 bis a, and the material outside the scope is excluded. The defence compares the forensic extraction report, which lists everything acquired, with the terms of the decision.

Integrity and chain of custody of the copy. Beyond lawfulness, the defence verifies the technical integrity: whether a forensic image with a hash was taken, whether the hash was verified, who held the device between seizure and examination, and whether the original was preserved. A finding cannot be attributed to the accused where the copy examined cannot be shown to correspond to the device seized.

• Article 588 bis a: guiding principles of technological measures
• Article 569: formalities of a search
• Article 588 ter a: interception of communications
• 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.