Case Study: Breach of the Right to Secrecy of Communications

1.- Introduction.

The Court of Instruction No. 18 of Seville (Preliminary Proceedings number 1987/2018) issued an order on October 22, 2018, authorizing agents of the Investigation Group of the Triana National Police Station to access and analyze the information contained in the mobile phones seized from P.C.C. Specifically, it authorized the review of the WhatsApp application, the messaging application, and the image gallery of the three devices.

2.- Case Summary.

P.C.C. is accused of committing two crimes: robbery with violence and fraud. It is alleged that P.C.C. drugged the victim, M.A.C.H., to subsequently steal money from them.

From the victim’s statements, it is gathered that P.C.C. and a friend of theirs were at the former’s house on the afternoon of September 10, 2018, having some champagne; and that the next thing they remembered was being woken up by the cleaning lady at the speaker’s house, as they were lying on the living room floor.

After this, they were transferred to Virgen del Rocío Hospital, where the appropriate analyses were performed, confirming the presence of toxins in their system (benzodiazepines), as well as minor injuries from having been lying down for a long time.

When the victim returned home, they noticed that more than four thousand euros they had saved in their room had been stolen.

The accused and the victim knew each other, and both admit to having had sporadic relations, so the presence of P.C.C.’s fingerprints in M.A.C.H.’s home would not be unusual.

Following P.C.C.’s arrest, several items and documents were seized to determine if they were relevant to clarifying the facts. From the seized items, there is evidence to suggest the investigated person’s involvement in other criminal acts identical to those in this specific case. The aim is to analyze P.C.C.’s mobile devices to check if they have used the same modus operandi with other individuals.

3.- Right to Secrecy of Communications

The right to secrecy of communications is a fundamental right enshrined in Article 18.3 of the Constitution: “The secrecy of communications, and especially of postal, telegraphic, and telephonic communications, is guaranteed, except by judicial order.”

 This right is guaranteed as long as there is no judicial order indicating the necessity to access such communications to facilitate the clarification of facts. However, the Spanish Constitution, in its Article 120.3, establishes the obligation for judgments to be reasoned: “Judgments shall always be reasoned and pronounced in public hearing.”

However, in the present case, the order from the Seville Court of Instruction does not provide sufficient argumentation to justify the necessity of violating P.C.C.’s right not to have their conversations and other information contained in their mobile device accessed.

4.- Legal Reasoning Provided in the Order.

The magistrate issuing the order provides the following argumentation to authorize the agents of the Triana Police Station’s Investigation Group to access and analyze the information contained in the seized phones:

 “FIRST.- Article 588 series  A and B of the Criminal Procedure Law establishes the need to obtain judicial authorization for accessing information from electronic devices seized from the investigated person, whether during a home search or in any other legitimate manner, with the judicial resolution needing to contain the reasons that legitimize such measure. In the present case, three mobile phones were seized from the investigated person, P.C.C., during her arrest. These phones were in her possession and activated with phone lines contracted by the investigated person herself, and these devices are at the disposal of this Court, in the custody of the Triana Investigation Group. From what has been investigated so far, there are indications that the investigated person may have perpetrated alleged crimes of ROBBERY WITH VIOLENCE and FRAUD against three different individuals, all males, always using the same modus operandi, consisting of arranging to meet them for sexual contact and administering a substance that neutralizes their cognitive and volitional capacities. Furthermore, documentation referring to other possible victims was also found in her possession. It is therefore more than reasonable to believe that the seized mobile devices may contain information about the contacts actually made with these and even other victims that could reveal the perpetration of similar acts, which is why the requested investigative diligence is considered justified. And considering, moreover, that it conforms to the guiding principles of specificity, suitability, exceptionality, and necessity referred to in Article 588.bis.a., authorization for its practice is appropriate, under the terms established in this resolution.”

5.- Violations. Appeals.

As this order affects a fundamental right recognized in Article 18 of the Spanish Constitution, it must be considered sensitive. Consequently, and in accordance with the doctrine of the Constitutional Court and the Supreme Court, it is inferred that judicial action must be adjusted to a greater extent to the principle of legality; otherwise, it would imply the nullity of the proceedings.

IN DIEM Lawyers, as the defense for the accused, considered the following measures null and void:

5.1 NULLITY OF THE MEASURE TO ACCESS TELEPHONE DATA. VIOLATION OF ART. 588. BIS. A LECRM. VIOLATION OF ART. 18 CE.

Reference is made to the principle of specificity, as it requires that decreed measures must refer to a specific crime and not be used to generally and indiscriminately discover criminal acts. This means that if judicial authorization is granted for the investigation of a specific criminal act, it is not permissible to investigate different criminal actions through it.

However, this order refers to undetermined and unnamed individuals; and it contains no mention of the connection between the investigated subjects and the specific criminal acts contained in said resolution.

Furthermore, regarding the principle of suitability, the LECRM requires that the measure be related to the investigation of a specific crime and that technological investigation measures aimed at preventing or discovering crimes or dispelling suspicions without an objective basis cannot be authorized, as is the case here, where the intervention measure has been authorized without any foundation or objective basis.

Regarding proportionality, it is argued that the limitation of a fundamental right is only appropriate if there is no less burdensome alternative through which the same desired outcome can be achieved. In this case, by not establishing a concrete correlation between the subjects, devices, evidence, specific facts, and penalty, the justification of proportionality is not fully met.

Finally, it is established that the adopted measures must comply with the principles of necessity and exceptionality and will only be justified when no other less burdensome measures for the fundamental rights of the investigated person are available to the investigation, and when the discovery of the investigated fact would be seriously hindered without resorting to this measure.

The appeal argues that there are less burdensome measures for P.C.C.’s Fundamental Rights and that the implementation of this measure does not condition the discovery of the investigated fact.

5.2 NULLITY OF THE MEASURE TO ACCESS TELEPHONE DATA. VIOLATION OF ART. 588. BIS. B LECRM. VIOLATION OF ART. 18 CE.

Article 588 bis.b of the LECRM regulates in detail the requirements for the Request for Judicial Authorization of investigative measures affecting the Rights under Article 18 of the Spanish Constitution.

However, the Request for Judicial Authorization by the Judicial Police contravenes the provisions of this article, as it does not contain the legally established content and lacks:

• A detailed description of the investigated act and the identity of the investigated person or any other person affected by the measure, provided such data are known.
• A detailed explanation of the reasons justifying the necessity of the measure, as well as the indications of criminality that have emerged during the preliminary investigation prior to the request for authorization of the intrusive act.
• Identification data of the investigated or accused person and, where applicable, of the communication means used that allow the execution of the measure.
• The manner of execution of the measure

5.3 NULLITY OF THE MEASURE TO ACCESS TELEPHONE DATA. MOTIVATION AND REQUIREMENTS. VIOLATION OF ART. 588. BIS. C LECRM. VIOLATION OF ARTICLE 18 CE.

This article regulates the requirements that the Judicial Authorization Order for investigative measures affecting the Rights under Article 18 of the Spanish Constitution must meet, and it can be seen that the Order dated October 22, 2018, contravenes the provisions of said article, as the following points are missing:

• The punishable act under investigation and its legal classification, with an expression of the rational indications on which the measure is based. The order does not specify the indications on which the measure is based and only refers to the documentation found, which, however, has not been analyzed.
• Extent of the intrusive measure, specifying its scope, as well as the reasoning regarding compliance with the guiding principles established in Article 588 bis a. The order mentions that access should refer to WhatsApp messaging, the messaging application, and the image gallery, but the purpose of the measure is neither reasoned nor specified.
• Form and periodicity with which the applicant will inform the judge about the results of the measure. There is no reference to the maximum time for the form and periodicity of informing the judge of the investigative measure.
• Purpose pursued with the measure. The purpose pursued with this measure is neither defined nor individualized. Furthermore, the order is not based on objective data, but solely on mere conjectures and suspicions that are insufficient to motivate and substantiate the measure.

6.- Conclusion.

Author: Sara Domínguez Ramos

Lawyers specializing in Breach of the Right to Secrecy of Communications | IN DIEM: Malaga, Seville, Madrid, Las Palmas de Gran Canaria, Almería, Huelva…

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