The Spanish Penal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) has a chapter dedicated to two kind of devices, those used to receive and record image, and those which have the purpose of tracking the suspect.
At first glance, we can see that both measures of investigation have not the same object, the reception of the image is aimed to see what is happening in a concrete place, while the tracking and localization of an object has as its goal to know where certain object is situated. Then why they share the same chapter? We can only suppose, because we don’t have access to the mind of those who make the law, but a good motive would be a feature that both measures of investigation share, until the reform of the LECrim by the Organic Law 13/2015 both measures of investigation had been used by the judicial police without the necessity of a judicial resolution authorizing it, something which has been inherited by their actual regulation, the use of devices to record images in public places, and in some cases the use of devices to track an object still don’t need a judicial authorization. But why?
To answer to such question we need to look to the rights affected with these measures of investigation. If you read the exposition of motives of the Organic Law 13/2015 you will find that according to the Spanish legislator the use of devices to record images of public places doesn’t interfere with any fundamental right, this affirmation open the door to the use of these devices without any concern by the judicial police, the inference is easy, since none of the fundamental rights are affected the need of a judicial authorization to approve this measure has not sense. But absolute affirmations like that normally drive to mistakes, if we brood deeper what right may be affected with this measure I am sure we will find more than one. The first which comes to my mind is the right to the intimacy (art. 18.1 of the Spanish Constitution, henceforth CE), this right is the right which guarantees a private sphere where neither the State nor other person may encroach. The right to the intimacy has been very developed by the Spanish jurisprudence, because on the contrary that the right to the secret of the communications (art. 18.3 CE) or the right to the inviolability of the domicile (art. 18.2 CE), it doesn’t have an specific provision requiring a judicial resolution to authorize the interference of the judicial police with it, the art. 18.1 of the CE guards silence with respect this matter. Thereby what the Spanish judges have done, is to establish the conditions under which the judicial police may interfere with it without the need of a judicial resolution, mainly are two, the judicial police needs a legal habilitation, and has to comply with the principle of proportionality, which is divided in three other principles: 1. The principle of suitability, the measure has to be adequate to achieve its purpose; 2. The principle of necessity: there can’t be another measure less harmful to the right affected by the measure; and 3. The principle of proportionality in strict sense: from the measure is derived more benefits to the general interest than damages to other values in conflict. The legal habilitation will be find in the proper LECrim, in its article 282 the judicial police is obliged to solve the crimes committed in its territory. The second right affect by the reception of images of public places, would be the right to the own image (art. 18.1 CE), this right shares with the right to the intimacy the article of the CE where is placed, therefore it doesn’t mention the need of a judicial resolution either, to this right we can apply the same conditions that the Spanish jurisprudence has developed to the right to the intimacy, but we should not forget the Organic Law 1/1982 where it has been developed, where specifically is said that won’t be considered an illegitimate intromission that which is expressly authorized by the law. The third right affect with this measure which comes to my mind, is the right to the data protection, which although regulated in a different article, the art. 18.4 of the CE, doesn’t demand a judicial resolution either. And we haven’t finished, other right which may be affected by the record of images is the right to the inviolability of a domicile, though this case is particular, the Spanish jurisprudence has stated that the use from outside a domicile of a device which may amplify the image received to record what is happening inside a domicile, is an infringement of the art. 18.2 of the CE, it has been said in the sentence of April 20, 2016 of the Supreme Tribunal, this sentence has acquired renown and is commonly known as the sentence of the binoculars. Although this last case is not protected by the article 588 quinquies a. LECrim, but by the articles 588 quater LECrim, later we will see the difference. Then, can we really say that there is not any of the right of the article 18 CE affected? I my opinion, no.
The case of the devices used to track or to locate and object is similar, though with is particularities. If your read Spanish resolutions which treat this measure of investigation, you will usually find that the right affected by this measure is the right to the intimacy, but this is not completely true, they are forgetting in the majority of the cases the right to the data protection (art. 18.4 CE). This can have as explanation that the right to the intimacy is a right much more developed by the Spanish tribunals, is more known, is more common.
Now we can answer the question. In both cases the principal right affected is the right to the intimacy, and as I have said above it doesn’t require a judicial resolution according to the CE to allow the judicial police their use. A feature shared with the other rights affected, therefore the law has only inherited the custom regarding these rights.
Let´s see with more detail these two measures, and to do it in order let’s start with the technical devices of reception of the image regulated in the article 588 quinquies a LECrim. This measure is akin to the measure of investigation regulated in the articles 588 quater, the latter regulate the recording of sound and/or image of a meeting, and in this case is always demanded a judicial resolution by the LECrim. The reason of this divergence is found in the rights affected by the recording of sound and/or image, is measure is chiefly aimed to the record of the conversations which have taken place in a meeting, and according to the Spanish jurisprudence this conversations are protected by the right to the secret of the communications (art. 18.3 CE), which always demands a judicial authorization according to the CE. We have seen above the special case where a technical device which can amplify the image is used to record what is happening inside a domicile (only image, no sound), this case, and only this, is the regulated by the articles 588 quater, because it is considered that this image interferes with the right to inviolability of the domicile (art. 18.2 CE), which as the right to the secret of the communications always asks for a judicial resolution according to the CE.
Hence, the reception of image is that, only the reception of an image, excluded sound. The next thing we need to take into account to know whether we are in the ambit of the article 588 quinquies a or not, is the place which will be recorded. As we have hinted above, the recording of a domicile always will require a judicial authorization, and the same will happen when the image recorded is from a private place, as for example the toilets of a shop, or the wardrobes of a gym. The private places are those, where the subject can limit the access of thirds, exercising in this way ambits of privacy excluded from the alien knowledge. In the rest of cases, a street, a garage, a shop, we will be in the ambit of the article 588 quinquies a. But we have to be more precise, the article 588 quinquies is used to the investigation of a crime (art. 282 and art. 299 LECrim), therefore is used when a crime have been committed, not when the device that record a place has been installed to prevent or forestall the future commission of one. This last aspect is important, because usually we find cameras in shops or warehouses, but they are not regulated according to the article 588 quinquies a., they only would be legal, if the comply with the article 22 of the Organic Law 3/2018 of Data Protection.
Now is the turn of the article 588 quinquies b and article 588 quinquies c, which regulate the use of devices to track or locate an object. I have said before that in some cases the judicial resolution will not be required, because the main right affected by this measure is the right to the intimacy, and the article of the CE where is regulated guards silence with respect the requisite of a judicial resolution. Concretely I am referring to the specific case in which the judicial police is forced to place the device to track a suspect with urgency, or on the contrary the investigation could be harm. In the rest of cases, which we have to suppose are the usual, the judicial resolution prior the installation of the device will always be mandatory. Achieved this point is obligatory to talk about the two kinds of devices which may be used to track a suspect, we have devices specifically designed to receive data of a localization, most of these devices use the GPS technology and the mobile telephones which use the GSM technology. This distinction is important, because the data is gathered by the judicial police in a different way depending whether is used one or the other method. Whereas, the devices installed in a object to track it, send information directly to the judicial police (there are not third parties obliged to collaborate with the judicial resolution which has authorized the tracking), to track a mobile telephone needed the collaboration of third parties, we are referring to the companies which provide with telecommunication services to the user of such mobile phone (these third parties are regulated in the article 588 ter e. LECrim). But here arrives the discord, because this third parties may be compelled to provide collaboration under the article 588 ter j. LECrim, therefore which is the correct article to requiere the collaboration of the third parties of the article 588 ter e?, the article 588 quinquies b. or the article 588 ter j.? In my opinion are both correct, the means and the third parties obliged to collaborate are the same, so is an option of the judge accord the measure in accordance with one or the other article, because we cannot forget that the judicial resolution which accords the intervention of a telephone communication can contain various pronouncements, the intervention of proper communication (the conversation maintain by this phone number), and / or the data associated to this communication, between them the localization of the telephoner through which is maintained the conversation, in other words, is possible according to the article 588 ter j. to solicit only the data regarding the global position of a mobile telephone, without ask for the interception of the conversations that take place using such mobile phone. Notwithstanding the above, there is a difference, the article 588 ter j. will be always used when the data needed by the judicial police is data not of a current localization, but of localizations where the mobile telephone was in the past.
Hence, we have at first glance two really different measures sharing the same chapter in the LECrim, but if we look closer, we find points in common between the two, the right of intimacy with its lack of a specific provision in the CE asking for a judicial resolution, the judicial control of the measure after its application (in the installation of devices to record images of public places, the judge will control the fulfillment with the article 588 bis a. where are stated the principles applicable to all the measures affecting the art. 18 of the CE, after the images are delivered to him by the judicial police, and in the case of urgency we have seen that the judicial police can use a tracking device prior to the judicial resolution which authorizes it), a jurisprudence which before the LO 13/2015 has legitimate the use of both measures of investigation without the necessity of a judicial authorization. Are these point enough to close the debate and finally agree that they are well placed sharing the same chapter in the LECrim? In my opinion, after closer examination, we can conclude that the legislator was right.
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