Spanish legislation on wiretapping is clear: it is only possible with judicial authorization
The Spanish Constitution protects personal communications And that includes that little computer that we all carry around and call a mobile. Hence the scandal that has meant that the organization Citizen Lablinked to the University of Toronto, has expanded in a new report on the conclusion it released a few years ago that mobile phones in 67 independence leaders, including the president of the Generalitat, Pere Aragonesand their predecessors, as well as parliamentarians, lawyers and sovereignist leaders were infected with Israeli cyber espionage technology pegasus, owned by the Israeli company NSO Group and only for sale to governments.
Despite the bad practices that have been committed, Spanish legislation is tremendously protective of the secrecy of communications. In a circular from the public prosecutor’s office (internal document to unify the actions of the Public Prosecutor’s Office throughout Spain) it is stated that the obligation that only the judicial authority is competent to “authorize the sacrifice of the right to secrecy of communications“, both to decree it, and to control its development, extension and the cessation of the intervention, “supposes a guarantee plus that goes beyond the requirements of the European Convention on Human Rights“.
Necessary judicial authorization
Article 579 of the criminal procedure law states that “The judge may agree, in a reasoned resolution, the intervention of the telephone communities of the accused, if there are indications of obtaining by these means the discovery or verification of any important fact or circumstance of the case.“. It adds that “it may agree, in a reasoned resolution, for a period of up to three months, extendable for equal periods, the observation of postal, telegraphic or telephone communications of the persons on whom there are indications of criminal responsibility, as well as of the communications that are used to carry out their criminal purposes”.
The exception are “in case of urgency”, the investigations carried out for “the investigation of crimes related to the actions of armed gangs or terrorist elements or rebels“because then the intervention”it may be ordered by the Minister of the Interior or, failing that, the Director of State Securityimmediately communicating it in writing to the competent judge, who, also giving reasons, will revoke or confirm such resolution within a maximum period of 72 hours from when the observation was ordered”. In the case of the ‘procés’, the defendants were prosecuted for rebellion (although they were only convicted of sedition), which would allow this route, at least for some of those allegedly spied on, but both from Interior as from Defense has denied having used this program by police or Guardia Civil.
The CNI reports to the Supreme Court magistrate to which it is attached and never acts as a police officer for the courts
Legal change by Perote
The lecrim was completed in 2002 with the law regulating the prior judicial control of the National Intelligence Centerwith which an attempt was made to prevent the recurrence of practices such as those that led to the conviction of the former colonel Juan Alberto Perote for the call Cesid eavesdropping case (predecessor of the CNI). In that ruling, the Supreme Court stated that “the existence of a legitimate purpose, the satisfaction of which benefits everyone, including the democratic system itself, cannot lead to the creation of spaces of impunity for those who contribute to achieving it, when in the use of these means or with their abuse, the borders of what is constitutionally admissible are exceeded, entering into criminal actions.
What was established in 2002 was that any action that could affect the inviolability of the home or the secrecy of communications by the CNI also had to be authorized by the judge, but where appropriate, a magistrate of the Supreme Court appointed for such The end. Since 2014 it is paul luke; and the magistrate appointed to replace him in that task if necessary, Andres Martinez-Arrieta.
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With Spanish legislation in hand, the answer to the practices that have transcended how Israeli technology affects the privacy of its victims, the answer seems clear. But it differs depending on the sources you ask. High court sources tell EL PERIÓDICO that legality is not marked by the program or the methodology chosen to carry out the intervention, but rather if it had judicial authorization or not and remember that the evidence obtained by the CNI can never be used in a judicial proceedingbecause the intelligence services never act as judicial police.
From the environment of the affected independentistas rule out that prior authorization and even the participation of the CNI, because they consider that it would not have been necessary for him to resort to Israeli technology to intervene in their communications. And they suspect that their results, although they cannot be legally incorporated into judicial procedures, are filtered through reports from the State security forces, which do act as judicial police.