Legal Procedures: Entry, Registration, and Communication Oversight
Item 8: Diligence Registry Entry and Enclosure
The measure of entry and registration is regulated in Articles 545 to 572 of the Criminal Procedure Code (CPP). It is noted that the inviolability of the home is a fundamental right enshrined in Article 18.2 of the Spanish Constitution. Consequently, registration must meet certain requirements. The budget states that there must be indications that the place is associated with the accused, or that it contains effects or instruments of a crime, books, papers, or other objects that may serve to discover the crime or the offender, or for verification.
This will involve agreeing to the judge’s order for entry, except where the occupant of the house consents. If there are several dwellers from the same household, although the law permits entry and registration with the authorization of one of them, it is recommended that access be granted through a judicial act. The entry will be declared by the competent investigating judge, who is normally assigned to the judicial police officers. The clerk or a person replacing them (in cases of multiple simultaneous entries), the person or their representative (i.e., their lawyer), must be present. If the interested parties do not engage a representative, the procedure shall be performed in the presence of an adult family member, or if none is present, two witnesses from the same village or neighbors. If the applicant is the accused and is available, they must also attend.
For the purpose of consideration, a home includes a hotel room, a sleeper train compartment, a ship’s cabin, and even a motor vehicle if the person lives inside. Avoid unnecessary inspections, trying not to annoy the subject more than necessary, and taking care not to compromise their reputation. The procedure should be conducted at home during the day, unless the urgency of the case necessitates nighttime action. In buildings or public places, it may take place both day and night.
Diligence Log Books and Papers
The handling of record books and papers is regulated in Articles 573 to 578 of the CPP. There is no special budget for the registration of different books and papers separate from the measure of entry and registration. The CPP’s regulation is rather weak in this regard, as it meets the same requirements for entry and residence registration. Books and papers collected must be foliated, sealed, and initialed on every sheet by the judge, the secretary, the person or persons in their stead, and those who attended the register. If the person concerned in the register is not the accused, they will be required to display the objects and papers suspected to be related to the cause. If they refuse, they may incur a fine or even be charged with gross disobedience to authority.
Detention of Postal and Telegraphic Communications
Secrecy of communications is a fundamental right enshrined in Article 18.3 of the Spanish Constitution. It is regulated by the intervention provisions in Articles 579 to 588 of the CPP. The budgets set out in the CPP to practice this proceeding are:
- Question of mail or telegraph that the accused receives.
- Evidence to obtain the discovery of some important fact or circumstance in the case.
- Self-motivated judge.
Detaining correspondence simply means keeping it for further consideration by persons determined by law. It must be ordered by the judge, but the physical restraint may be entrusted to the magistrate, the judicial police, the postmaster, and, in a state of emergency, to the governing authority. The coroner is the only person entitled to open and examine the content. The accused or their representative, and the clerk, must be present, unless the packets are green, as they may be opened by their very nature.
Wiretapping
Wiretaps were not comprehensively developed in the CPP, given the antiquity of the law itself, making reference only to Article 579, although there is a large body of case law on wiretapping. This article establishes deadlines for post, telegraph, and telephone observation and communications for a period of three months, renewable for similar periods. In this regard, a distinction must be made between intervention (knowing who speaks and what they say) and observation (knowing who talks but not what they say).
To carry out an intervention, there must be criminal proceedings, but sometimes these do not exist in practice, and a police wiretap application may motivate the initiation of criminal proceedings. It must be conducted through a warrant stating the reasons for the intervention. The wiretap must be justified by a certain notoriety, such as in the case of a felony. The measure must be proportional, meaning it is applicable to offenses punishable by more than 5 years, but for offenses punishable by less than 5 years, it will depend on the type of crime involved, although there are no general rules. Inevitable discovery occurs when a fact is found while attempting to discover a different one, requiring an extension request from the judge. Permission is granted by the judge and executed by the police. They must deliver the talks in full. The tapes should always be original and need not be listened to on the day of the trial, but must be available to the parties if they wish to listen, without contradiction or denial about their contents. Infringing any constitutional requirements would void the evidence.