Art. 588 bis a LECrim
Guiding principles
Every measure requires judicial authorisation founded on the principles of specialty (a specific offence, not general prospecting), suitability, exceptionality, necessity and proportionality. The interception “to see what comes up” is the most classic nullity of the system. Specialty is the principle that produces the most nullities: interceptions requested for one offence and exploited for another without extension, or orders investigating “criminal activities” without specification. STS 155/2022 and its concordant rulings summarise the standard: objective indications, a specific offence, an identified or identifiable subject. Everything else is prohibited prospecting.
Arts. 588 bis c to k LECrim
Common regime
They regulate the police request, the content of the order (facts, subjects, means, scope, duration), secrecy, reasoned extensions, cessation when the prerequisites disappear and the destruction of recordings once the case is closed. Every automatic or late extension is challengeable. We audit the file of each measure like a set of accounts: date of request, order, notification to the operator, cessation and destruction. Extensions signed after expiry, even by days, break the chain; and extension orders that do not assess prior results (copy-paste of the previous one) breach art. 588 bis f and fall.
Art. 588 ter LECrim
Telephone and telematic interception
Available for intentional offences with a maximum penalty of at least 3 years, organised crime, terrorism or offences committed through technological means. Initial duration of 3 months, extendable up to 18. It includes traffic data (with authorisation) and identification of holders by IP (art. 588 ter k): the retention and disclosure of data follows the European standard, a ground of constant litigation.
In practice
IP identification and traffic data
Identification by IP (art. 588 ter k) and the disclosure of retained data live under the European standard of La Quadrature and Prokuratuur: access only for serious crime and with prior judicial control. In minor frauds and petty offences, the massive disclosure of traffic data is a winnable battle. And the SITEL system produces metadata that we always request in full: audio files without their associated data cannot be verified.
Art. 588 quater LECrim
Ambient listening
The capture of oral communications with hidden microphones requires specific foreseeable encounters and especially well-founded indications, in serious offences; permanent and indiscriminate ambient listening is not allowed, nor in the home without reinforced justification. Ambient listening requires foreseeable “specific encounters”: microphones left open for weeks in a car or a cell without delimiting encounters are null (doctrine after STC 145/2014). We request the authorised recording plan and confront it with what was actually captured: excesses of time and place are excluded.
Art. 588 quinquies LECrim
Image, surveillance and GPS trackers
Image capture in public places and tracking and location devices (GPS beacons) require judicial authorisation for 3 months, extendable; the police may only place them without authorisation in urgent cases, with judicial validation within 24 hours. A tracker placed urgently and not ratified within 24 hours is a textbook nullity, and prolonged tracking without extensions as well. We request the complete logs of the device: installation dates, battery replacements (each access to the vehicle requires cover) and the chain of custody of the positioning data.
Art. 588 sexies LECrim
Search of devices
Access to the content of computers, phones and mass storage requires individualised reasoning, even if the device is seized during a lawful house search. Urgent seizure allows securing the device, but not accessing it: the examination waits for the order. Half of our nullities are born here. The phone is a “digital home” (STC 70/2002 avant la lettre and STS 489/2018): neither the consent of a detainee without a lawyer nor a generic entry order authorises the imaging. We verify the acquisition and analysis hashes, the tool used and the complete clone: when the prosecution only produces UFED screenshots without the full evidence, the devastating counter-expert report is ours.
Art. 588 septies LECrim
Remote search (police malware)
The use of software for remote and covert access to equipment is only possible for a closed catalogue (terrorism, criminal organisation, offences against minors, serious cybercrime), with an order specifying devices, scope, agents and a maximum duration of 1 month extendable to 3. It is the frontier of the system. Remote search is so invasive that its improper use taints entire cases: closed catalogue, identified devices, designated agents and short duration. If data appear in the case that could only have been obtained through undocumented remote access, forensic expertise can detect the trace of the installed agent: we have proved it and had it excluded.
Art. 588 octies LECrim
Data preservation (freezing)
It allows ordering the rapid preservation of data (data freezing) for 90 days, extendable, while the disclosure authorisation is obtained: the bridge tool with providers, today connected to the European e-evidence Regulation. The preservation order is the tool almost no one uses in time: 90 days of freezing while the disclosure is processed. For the defence too: we request the preservation of exculpatory data (cameras, access logs) before deletion cycles destroy them. The right to evidence begins with preserving it.
