Safeguards for private communications
The monitoring of telephone communications consists on the restriction of the fundamental right to confidentiality and privacy of communications, contemplated in the article 18 of the Spanish constitution. It is a measure ordered by the Courts that is very useful to clarify criminal acts.
Our legal system brings a series of principles that provide security to all legal subjects that are being investigated, to protect that citizens cannot be in arbitrary situations against possible interference and illegal actions that could be carried out in our Courts.
This is why prior procedural steps in the criminal process that may be limiting of Fundamental Rights, such as telephone monitoring, must comply with guiding principles suitable of guaranteeing that the sacrifice of the affected rights is not greater than the benefit that results from its adoption for the public interest and third parties.
Confidentiality of communications as a fundamental right
By virtue of the principle of quality of the enabling rule, the national regulations had to be adapted in relation with the possible injurious effects to the privacy of communications, which is why the monitoring of telephone communications must comply with the principles of specialty, suitability, exceptionality, necessity and proportionality of the measure, as is contemplated in the article 588 bis a) of the Criminal Procedure Law.
The judge may agree the monitoring of private communications, only in cases that evidence can be obtained by this way, any relevant fact or circumstance for the investigation, provided that the purpose of the following crimes:
- Intentional crimes punishable by a maximum penalty of at least three years in prison.
- Crimes committed within a criminal group or organization.
- Terrorism crimes.
In a democratic State, the monitoring of telephone communications should not be provided to discover the commission of crimes in general, but only to pre-establish evidence of punishable acts, depending of gravity or social relevance, being previously reported and constitute the object of an ongoing judicial investigation.
If you need a defense attorney in Marbella to assist you in a case of violation of fundamental rights , such as an illegal Monitoring of telephone communications , quickly contact our specialized law firm in Criminal Law . We are here to reply your questions and ensure that your rights are properly defended .
Telephone: +34 951 052 811
Whatsapp: +34 643 89 04 96
Effective safeguards to prevent general and indiscriminate monitoring of private communications. Regulation (UE) 2018/1725
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