A summary of the measures of investigation which affect to the article 18 of the Spanish Constitution

The Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), has a Title where the legislator has included all the measures of investigation which may be used by the Spanish judicial police to solve a crime with the secondary effect of harming some of the rights included in the article 18 of the Spanish Constitution (henceforth, CE), this Title is the Title VIII of the Book II, of the LECrim. They are specially important, because the article 18 CE contains essentials rights to a democratic State, without them, a Policial State, a dictatorship, would take its place, since these rights of the art. 18 CE act as limits to the power of the State, they impede an unleashed police with the only goal of cowing the political rivals of the “clique” at the power, they guarantee to the citizens a procedure which respects their human rights using a judge as arbiter.
We should start identifying the rights included in the article 18 CE, a complex article which in essence develops the right to the intimacy of all the Spanish citizens, and also of the foreigners according to the treaties signed by Spain with their countries or as is stated in other Spanish laws (art. 13.1 CE). This article is divided in four sections: the first section has as object the right to the intimacy, the honor, and the own image; the second section, guarantees the right to the inviolability of the domicile; the third section, establishes the right to the secret of the communications; and the fourth section, regulates the right to the data protection. Let´ s study deeper what is the scope of each of these rights, and we will see why I have said above that all are referring to the same, the right to the intimacy. 
Of the first section I will only explain the right to the intimacy, because it is the more relevant, the more used by the Spanish jurisprudence when it talks about any of the measures of investigation of the Title VIII. The right to the intimacy guarantees to the person a private ambit of its life impeding that thirds parties, either individuals or public powers, decide what are the limits of our own private life, allowing each person to reserve to itself a space protected from the alien curiosity, without consideration of what is contained in this space. The protection of this private ambit confers to the person the power to exige to third parties the duty to abstain themselves from all intromission in the private sphere and the prohibition to make use of the known in this way.
The second section only talks about the right to the inviolability of the domicile. The inviolability guarantees that the ambit of privacy constituted by the domicile, is exempted, or inmune, to whatever exterior type of invasion or aggression of other persons or the public authority, included those which may be committed without physic perpetration, but by technical or electronic means or akin. The next thing we need to know, is what can be considered as a domicile, it is a space where the person lives without to be subjected necessarily to the social customs and exercises its liberty more private, thereby is not only the object of protection the physical space as such considered, but what is in it of emanation of the person y its private sphere. Yet, the legal concept of domicile is a broad concept, broader that in the practice we have of it, with general character the domicile has been understood as any closed place where can take place the private life, individual or in family, even when is occupied temporally of accidentally. 
In the third section, as I have said above, we find the right to the secret of communications. This right protects the communication from its interception and the ilegal knowledge of its content. Therefore, such right may result violated with the seizure of the message, as for instance a letter, and the ilegal knowledge of the message which is transmitted. It has been said too, that the right to the secret of the communications protects not only the content of the communication, or its integrity, but also other aspects of it, as the identity of the parties.
And the right to the data protection, guarantees to the person the control over its data, whatever personal data, and over its use or destiny, to avoid the ilegal traffic of them, or harmful to its dignity. It is considered an autonomous and independent right which consists in a power of disposition and control over the personal data which authorizes the person to decide what of this data is shared with a private third party or the State, or which data may be obtained by them, and also permits the citizen to know the identity of who possesses the personal data and for what purpose, giving the opportunity to the owner of the data to oppose this possession and use. A persona data is, all information about an identified or identifiable physic person.
These rights share an article, but it doesn’t mean that they share the same level of protection. A prior warrant is only demanded to the Spanish judicial police when its actuation affects to the right to the secret of the communications (art. 18.3), or the right to the inviolability of the domicile (art. 18.2), although in this last case the CE mentions two exceptions to the warrant, the consent of the owner of the right, or when the police is the witness of a flagrant crime, which is a crime in the process of its commission or soon after it. The other two rights are protected too, but instead of the CE, has been the Spanish jurisprudence who has shaped their protection. Again, for its importance, and its broader use by the Spanish tribunals, I going to talk only about the right to the intimacy. The Spanish jurisprudence has stated that the right to the intimacy is usually protected also by a warrant, but as the CE guards silence with respect the exigency of a warrant, there are some exceptions, cases where the Spanish judicial police will have the authority to act without the necessity of a warrant to make its intervention legal. These exceptions or cases has to comply with four requisites: 1) The intervention of the police has to have as purpose the fulfillment of a legitimate constitutional goal, as the discovery of a crime and its attribution to a person; 2) There should exist a prior legal habilitation; 3) The police has to comply with the principle of proportionality which is compounded by three other principles: the principle of suitability, the action is adequate to comply with its goal; the principle of necessity, there is not another measure of investigation less harmful to achieve its purpose, and the principle of proportionality in strict sense, from the measure of investigation has to derive more benefits to the general interest than damages to other values or goods involved; 4) The police has to act under the pressure of the urgency. If these four requisites are fulfilled by the police, an intervention, a measure of investigation which will interfere with the right of intimacy of a suspect, will not need a warrant. This is the basis of all the measures of investigation that we will see.
Now is the turn to connect the principle of proportionality with two other important ideas. The principle of proportionality has not been only developed to apply to the right to the intimacy (art. 18.1 CE), it has a broader application, because all the measure of investigation regulated in the Title VIII will need to comply with this principle, so in one article or other you will see it stated more or less explicitly, for example in the art. 546 LECrim, when it refers to the almost certain possibilities of find evidences or instruments related to a crime in a domicile, or the art. 579 LECrim when it mentioned the crimes whose investigation allows the interception of for example a letter. Indeed this principle finally has been included in the LECrim in the art. 588 bis a, which is part of a group of articles that apply to all the measures of investigation whose means are technical.
And the second idea, which has also be transformed into a principle (the principle of speciality) in the art. 588 bis a, is that all the measures of investigation regulated in the Title VIII, has to be preceded of a prior police investigation where it has found severe evidences that a crime has been committed, is being committed, or will be committed. This previous investigation will serve to motivated the fulfillment of the principle of proportionality to which I have referred before. 
Above all, the principle of proportionality is important when the articules regulating the measure of investigation don’t state the kinds of crimes which is aimed to solve, in these cases the principle of proportionality will be the only criteria which will determine the legality of the measure of investigation.

The search of a closed place is regulated in the LECrim, in from its article 545 to its article 572. This is the first chapter of the Title VIII. Here we have to put into practice what all we have learned about the right to the inviolability of a domicile and how has been shaped by the CE. In it we don’t fin anything more important than what we have seen until know, the articles give detail to the regulation of this measure of investigation, but the important is what we already have seen, the Spanish judicial police will need always a warrant prior the search of a domicile. For the rest of places, the police will not need it, here the right affected will be the right to the intimacy, and in this cases as we have seen above, the Spanish jurisprudence have allowed the police to act without a warrant when the four requisites mentioned are fulfilled, which will be always when the closed place searched is not a domicile.
It is important to remember some things:

It is a measure which, in the practice, is associated with the search of a domicile, a closed place will be searched, between other motives, to have access to this sort of documents. Nevertheless, despite this evident connection between the two measures of investigation, the access to the books and papers always will not have place in a domicile. Thereby, in the places which are not considered a domicile according to the article 554 LECrim, or by the Spanish jurisprudence, the police will not need a warrant to have access to the documents or books. 
With this measure of investigation the right which will be affected is the right to the intimacy, such right protects the paper and books object and as we have seen, the CE allows to the police certain interferences with it without the necessity of a warrant.

The LECrim have suffered numerous changes along its more than 100 years of life. Yet, one is the most important if we talk about its Title VIII, the change which introduced the Organic Law 13/2015. Such Organic Law, modified the LECrim to put it in accordance with the Spanish (and European) jurisprudence which has been shaped the regulation of the measures of investigation which in one way or other affects to the art. 18 CE.
In each measure of investigation a concrete sentence is the sentence which is considered a milestone, a point in the history that turns upside down how the things were donde until that moment. In this case, this sentence is the 281/2006 of the Constitutional Tribunal. Such sentence is important because until that moment, the resolutions from the Spanish tribunals had different criteria when they analyzed what was protected by the right of the secret of communications (art. 18.3 CE). For some tribunal all the packets sent using the postal services were protected, on the contrary for others, only the packets which for his dimensions had the purpose of containing a massage were protected. The latter view won, because was unpractical to demand a warrant always to the police when they had the necessity of opening a packet.
As I have hinted, with this measure of investigation the right affected is the right to the secret of communications. Therefore, the police will need always a warrant to open a letter, which for its dimensions, weight, is supposed to be containing a message. The other packets, as I am sure you already know, are protected by the right to the intimacy, the consequence, the police doesn’t need a warrant to open them when from their size or weight they may infer that what they have inside is merchandise.
This is a measure of investigation specially harmful to the intimacy of a citizen, so the legislator have decided with good criteria to restrict its use to only some cases: 1) Crimes committed on purpose with a maximum sentence of at least three years in prison; 2) Crimes committed inside the heart of a criminal organization; 3) Crimes of terrorism.
This measure is temporarily limited to three months, which may be extended for equal periods until a maximum of 18 months. 

Although we part from the same base of the last measure of investigation, this is different due to the complexity which has brought the new technologies to the act of communication. Above all I am referring to the smartphones, because these new devices can store a great variety of information and data.
Until our lives were changed forever by the smartphones this measure of investigation was simple, the right affected was the right to the secret of the communications (art. 18.3 CE), always a prior warrant was required to the interception of the police and the only object of this interception was to catch the message transmitted by a telephone. Now is more complicated, first we have two kinds of communications, the communication using a telephonic line, a number of telephone, this is a telephonic communication, and the communication which is transmitted using internet, this is a telematic communication. Of course in both cases, when the object of the interception is only the message transmitted in a conversation the right affected will be the right to the secret of the communications, then a warrant will always be required. But as I said before, a smartphone produces more data, as the precise localization of its user every moment, this data when could be considered a personal data will be protected under the right to the data protection, although, as we have explain before, it is not expressly protected by a warrant by the CE, to obtain them the police will also always need a warrant
In essence the articles of the LECrim dedicated to the interception of a telephonic or telematic communication are divided in three: 1) art. 588 ter a) – art. 588 ter i), which provide the basic regulation of the measure, aimed above all to the interception of the message of a communication by telephone or telematic means; 2) art. 588 ter j, a very important article this article regulates the cases where the police needs a mandatory warrant to obtain some kind of data, as a said before an example is the localization of the user of a smartphone; and 3) art. ter k – ter l, which contain cases where the warrant is aimed to obtain the identity of the user of a smartphone thanks to data which is already in possession of the police, as the IMEI or the IP, which under some circumstances don’t need a warrant to be obtained by them.
The warrant may authorize, the interception of the communication, or of the personal data, or of both things. When it only authorize the interception of personal data, the warrant will not be limited to the crimes established in the articule 588 ter a), the only limits will be the principles gathered in the article 588 bis a).
This measure of investigation is also limited to only some cases: 1) Crimes committed on purpose with a maximum sentence of at least three years in prison; 2) Crimes committed inside the heart of a criminal organization; 3) Crimes of terrorism. As in the case to the letters, but the law, has added a new one, crimes committed through computer hardware or other technology of the information.
As in the case of the of the interception of the telephonic and telematic communications, this measure is temporarily limited to three months, which may be extended for equal periods until a maximum of 18 months. 

This chapter is specially important because until its appearance this measure of investigation was forbidden. In this case the sentence which is considered a milestone is the sentence of the Spanish Constitutional Tribunal 145/2014 of September, 22. Such sentence came to say that the interception and recording of oral conversations by the Spanish police was ilegal, for a reason as simple as that the measure didn’t appear in any part of law. In other words, the Sentence 145/2014, said that this kind of measure of investigation was infringing the principle of reserve of law, according to which all the Estate interferences in the ambit of the fundamental rights and public liberties (art. 14 – art. 29 CE), that affect directly over its development (art. 81.1 CE) or limit or conditioned their exercise (art. 53.1 CE), need a legal habilitation. Until this sentence, the Spanish tribunals were using the old article 579.2 which regulated the interception of the telephonic conversations by the police. Thereby as the interception of the correspondence, or the interception of the telephonic communications this measure was born from the OL 13/2015, but in its case the new birth was not a modification of the old regulations, it was born as a completely new measure of investigation.
This measure of investigation has other distinctive features, although the main objective of the measure is to intercept an oral communication, it also allows the reception and record of image. Indeed theoretically is allowed the reception and recording of only image. Let´s go little by little. If the reception and the record is of sound, a warrant will always be needed, and the same will happen if the reception and record is of sound and image. In both cases, we understand, the Spanish Tribunals has understood that the right affected is the right to the secret of the communications, even when is not true, because the right to the secret of the communications was designed to protect a communications transmitted using a technical means, a thing which is not happening when a message is transmitted using the aire between the parties of a conversation, nevertheless always we be required a prior warrant before the interception of this oral conversations. On the contrary when we record only image, there is not a right to the secret of the communications which can be blamed, so the warrant will be needed only if the image intercepted and recorded is from the interior of a domicile, because the Spanish jurisprudence considered that in these cases there are an interference with the right to the inviolability of the domicile. This distinction was established in the famous sentence of the binoculars which is the sentence of the Spanish Supreme Tribunal of April 20, 2016.
Other important feature, is the spacial and temporal limit of this measure of investigation, the law as in the last cases we have seen not limit the interception of the oral communications temporarily, it is limited to a specific or specific meetings, and for this we have to attend to three criteria. The warrant has to establish, the place, the persons, and the moment when this conversations will take place.
This measure is also limited to only some kinds of crimes: 1) Crimes committed on purpose with a maximum sentence of at least three years in prison; 2) Crimes committed inside the heart of a  criminal organization; 3) Crimes of terrorism. 

This chapter of the LECrim is divided in two partes, the art. 588 quinquies a) which regulates the interception and recording of images in public places, and the articles 588 quinquies b) and articles 588 bis c), which regulate the use of devices to know the localization of a suspect.
The recording of images in public places will never require a warrant, according to the Exposition of Motives of the OL 13/2015, this is due to the fact that this measure of investigation doesn’t interfere with any of the fundamental rights recognized in the art. 18 of the CE, although I have my doubts, nevertheless is neither the moment nor the place to start this discussion. As we have seen before here we have to be careful with the place from where the images are taken, if it is a domicile the object of the interception and recording of the images it always will require a warrant, while a public place will not need it, they are the places where the a citizen has not an expectation of intimacy, such as a shop, a bar, a library or a gym, but not their toilets or changing rooms, in these latter cases will be needed also a warrant as in a domicile. Also we have to take into account, that the measure of investigation will have as a goal the investigation of a crime which already have been committed (art. 299 LECrim), while the cameras installed in shops or other public places to continually record what is happening there, are regulated under the art. 22 of the Organic Law 3/2018, of December 5, of Personal Data Protection. 
The articles 588 quinquies b) and 588 quinquies c) regulate as I have said the use of devices to track a suspect. This measure of investigation affects to the right of the intimacy (art. 18.1 CE), and to the right to the data protection (art. 18.4 CE), in both cases the CE doesn’t exige a warrant to the police, but the LECrim has increased the protection and as a general rule a warrant will be needed by the police before it installed any of the devices dedicated to track a suspect. Although when the police acts under the pressure of the urgency, it can track a suspect without a warrant, measure of investigation which mandatorily has to be put into the knowledge of a judge within 24 hours, who has the power to reject or accept the measure. This exception of the urgency, is an inheritance of the development of the right of intimacy by the Spanish tribunal, recall that the urgency was one of the requisites the police has to comply to avoid the need of a warrant.
We cannot conclude this measure of investigation without at least mention the two forms used by the police to track a suspect. One is the use of a tracking device which uses the GPS technology, it is a device sticked to an object, as a car, or a ship, or even a person a secret agent, the data gathered to this object is directly transmitted to the police. The other form, is to follow a suspect using its mobile which uses GSM technology, in this cases always will be required a warrant before, we are in the same case established in the article 588 ter j). In my opinion, the judge may choose between this two options to concede the warrant to the police.

These devices are of vital importance, the have occupied a prominent place in all our lives, in a short period of time. I am referring to the to a laptop, a computer, a smartphone or even a DVD, a CD, a pen drive, or a external hard disk. For the sort of data stored in them, we can not mention a concrete right established in the CE which is affected when the police decides to search one this this devices. The jurisprudence has developed the right to your own virtual environment, which is a right of new generation and is compounded of the right to the intimacy, the right to the secret of the communications, and the right to the data protection. Nevertheless, this right, as we have seen before, is a product of the work of the Spanish tribunals, so there was a time in which the Spanish tribunals protected the information contained in these devices separately, the photos, documents, an opened email or list of phone numbers with the right to the intimacy, the record of phone calls. the proper phone calls, or an email not open yet with the right to the secret of communications, and the data revealing the position of the device with the right to the data protection. But we can see clearly that this only causes confusion, because when the data was protected with the right to the intimacy a warrant was not needed by the police, and when the data was referred to the secret of the communications, it was needed. Nowadays that all the data contained in these special devices is protected according to the right to your own virtual environment, always will be needed a warrant. Notwithstanding, are some exceptions, the police under the pressure of the urgency, as we have seen before with the installation of tracking devices, is allowed to search these devices of massive storage of information without a warrant, in this case the police has 24h. to put the measure into the knowledge of a judge too, who should decide over legality of the measure.
When the devices has been seized during the search of a domicile, the police has to obtain other warrant to its search if the warrant authorizing the entrance into the domicile didn’t authorize it expressly.
As in the last two cases, this measure of investigation was introduced in the LECrim, by the OL 13/2015.

This measure of investigation also interfere with the right to your own virtual environment, therefore as in the last case the police always will need a warrant before the execution of the search. Indeed, in this case the “always” is always, without exception, here the urgency is not a motive to exclude the necessity of a warrant as we have seen above.
There are more differences, this measure of investigation has been limited to some specific kinds of crimes, as in the case of the interception of the correspondence, the interception of telephonic or telematic communications, or the interception of oral communications: 1) Crimes committed in the heart of a criminal organization, 2) Crimes of terrorism, 3) Crimes committed against minors incapables, 4) Crimes against the Constitution, of treason, or relatives to the national defense, and 4) crimes committed through computer hardware or other technology of the information.
This measure is also limited temporarily to one month, though may be expanded for equal periods until a maximum of tree months.
This measure of investigation was introduced by the OL 13/2015 too.

The measures of investigation which affect to the fundamental rights recognized in the article 18 of the CE, has evolved following the pace of the technology, they have followed the pace of the technology because evidently they have gone always behind it. Probably in a future there will be more, which now I am so tired to imagine, probably the same will happen with the rights which will be affected by them.
Taking into account what we have now and not thinking into an uncertain future, in my opinion we can obtain the following key points from what we have seen above:

Víctor López Camacho.
Twitter: @victorsuperlope.

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