Phone and Electronic Interception in Spain: Requirements, Time Limits and Nullity

Where a criminal case rests on recorded conversations, the defence's first question is not what was said but how it came to be heard. The LECrim organises the area in two blocks that must be read together: Arts. 588 bis a to 588 bis k, common to every technological investigation measure, and Arts. 588 ter a to 588 ter m, specific to telephone and electronic interception. That framework states what had to appear in the file, and its absence opens the door to nullity.

You are under investigation and communications have been intercepted

The measure is handled in a separate, secret file, without any need to declare the whole case secret (Art. 588 bis d LECrim). That is why the person under investigation normally learns of the interception once it has ended and the file is disclosed, not while it is running. In return, the law demands that everything be documented, because scrutiny comes afterwards. So the examination falls not on the content of the conversations but on the complete record of the intrusion: the police application, the authorising order, the periodic reports, the extension orders and the media handed over to the court.

The five governing principles of Art. 588 bis a

No technological investigation measure may be adopted without judicial authorisation and full compliance with five principles that the article itself defines one by one.

• Speciality. The measure must relate to the investigation of a specific offence. Art. 588 bis a.2 expressly bans measures aimed at preventing or uncovering offences or at dispelling suspicions with no objective basis: the veto on fishing expeditions.
• Suitability. It defines the objective and subjective scope of the measure and its duration according to its usefulness. An authorisation that does not delimit who and what it reaches is not suitable.
• Exceptionality and necessity. It is available only where no less intrusive and equally useful measures exist, or where without it the discovery of the fact, the identification of the perpetrator, the tracing of their whereabouts or the location of the proceeds would be seriously hindered.
• Proportionality. The sacrifice of the rights affected may not outweigh the benefit to the public interest and to third parties. The balance weighs the seriousness of the offence, its social significance or technological setting, the strength of the indications and the relevance of the result pursued.

Which offences it may be authorised for

Art. 588 ter a LECrim closes the list. Interception may be granted only where the investigation concerns one of the offences referred to in Art. 579.1 — among them, intentional offences carrying a maximum penalty of at least three years' imprisonment and those committed within a criminal group or organisation — or offences committed through computer instruments or any other information and communication technology.

The practical consequence is twofold. First, conduct that does not reach that penalty threshold and was not committed by technological means will not support a phone tap. Second, the legal characterisation stated in the order matters: if the measure was authorised for a listed offence and the investigation drifts towards one that is not listed, the point of connection has to be revisited.

The police application and the judicial order

The judge may adopt the measure of their own motion or on the application of the Public Prosecutor or the Judicial Police (Art. 588 bis b.1). The application must contain eight items (Art. 588 bis b.2), among them a description of the fact, a detailed statement of the reasons justifying the need for the measure with the indications of criminality that emerged in the prior investigation, its extent and content, the investigating unit in charge and the duration sought. For phone interception, Art. 588 ter d.1 adds the identification of the subscriber number, the terminal or the technical label.

The judge rules by reasoned order, having heard the Public Prosecutor, within a maximum of twenty-four hours from the application, a period interrupted if clarification or expansion is required (Art. 588 bis c.1 and 2). The order must specify at least eight points: the punishable act and its legal characterisation, stating the rational indications on which it rests; the identity of those affected; the extent of the intrusion and the reasoning on the governing principles; the Judicial Police unit in charge; the duration; the manner and frequency with which the court will be informed; the purpose pursued; and the obliged party.

Which terminals and which data it covers

The terminals intercepted must be those used habitually or occasionally by the person investigated (Art. 588 ter b.1). The interception may reach the content of the communications and the electronic traffic or associated data, whether or not a specific communication takes place, and may affect terminals of which the person investigated is holder or merely user. The victim's means of communication may also be intercepted where a serious risk to their life or physical integrity is foreseeable.

The reach into third parties is a closed list in Art. 588 ter c: it must be established that the person investigated uses the third party's terminal to send or receive information, or that its holder collaborates in their unlawful aims or benefits from their activity. It also covers devices used maliciously by third parties without the holder's knowledge.

The same chapter governs neighbouring measures that are not a tap: disclosure of data retained by service providers requires judicial authorisation (Art. 588 ter j); identifying the user of an IP address is applied for before the investigating judge (Art. 588 ter k); capturing IMSI or IMEI codes may be done by the Judicial Police where the subscriber number could not be obtained, and must be disclosed to the court when the interception is later sought (Art. 588 ter l); and who holds a number may be asked directly of the providers (Art. 588 ter m).

Duration, extensions and termination

The initial maximum duration is three months from the judicial authorisation, extendable for successive periods of equal length up to a maximum of eighteen months (Art. 588 ter g). The extension is applied for sufficiently in advance of expiry and must include a detailed report on the outcome of the measure and the reasons justifying its continuation (Art. 588 bis f.1); in phone interceptions the transcript of the passages yielding relevant information for that decision is also provided (Art. 588 ter h).

The judge rules by reasoned order within the following two days and, once granted, the extension runs from the expiry of the previous period (Art. 588 bis f.2 and 3). If the period lapses without an extension, the measure ceases for all purposes (Art. 588 bis e.3), and the judge must order it to cease where the circumstances justifying it disappear or the intended results are clearly not being obtained (Art. 588 bis j). Anything recorded outside the authorised period has no legal cover.

Judicial supervision and the transfer of recordings

Judicial supervision does not end with the initial order. The Judicial Police must inform the judge of the progress and results in the manner and with the frequency the judge determines and, in any event, when the measure ends (Art. 588 bis g). Art. 588 ter f spells out how: the transcript of the relevant passages and the complete recordings are placed at the court's disposal on separate digital media, stating the origin and destination of each, with the authenticity and integrity of the transferred information secured by an advanced electronic sealing or signature system, or a sufficiently reliable verification system.

Without complete, verified media, the transcript cannot be compared against the original.

Incidental findings and use in other proceedings

An interception authorised for one offence often ends up revealing a different one. Art. 588 bis i refers to Art. 579 bis, which sets three rules. First, the result may be used as a means of investigation or as evidence in other criminal proceedings. Second, doing so requires a certified record of the material needed to establish the lawfulness of the intrusion, always including the initial application, the order granting it and every extension in the original case. Third, continuing the measure to investigate the offence discovered by chance requires authorisation from the competent judge, who assesses the setting in which the finding occurred and whether a measure covering it could have been sought earlier.

Defence access and destruction of the records

Once secrecy is lifted and the measure has expired, the parties are given a copy of the recordings and of the transcripts made (Art. 588 ter i.1). Where the recording contains data concerning private life, only the part not referring to it is handed over, and the fact that the transcript is incomplete must be expressly recorded. Having examined the recordings, any party may ask, within the period set by the judge, for excluded communications it considers relevant to be added (Art. 588 ter i.2). Those taking part in the intercepted communications are notified of the intrusion, unless that is impossible, would demand disproportionate effort or could harm future investigations (Art. 588 ter i.3).

Two further rules go unnoticed. Communications between the person investigated and their lawyer are confidential: if they were captured while the measure was being carried out, the judge orders the recording deleted and records this in the file, unless objective evidence emerges of the lawyer's involvement in the offence under investigation (Art. 118.4 LECrim). And once the decision ending the proceedings is final, the original records are ordered to be erased and a copy is kept in the court clerk's custody; that copy is destroyed five years after the sentence has been served, or where the offence or the penalty has become time-barred, or where a final dismissal or acquittal has been handed down (Art. 588 bis k).

When the interception is annulled and what it drags with it

Nullity does not depend on how serious the offence is, but on which safeguard was breached. The defects most often argued are:

• Authorisation resting on suspicion with no objective basis, or on a police report that does not explain where the data came from, against the ban in Art. 588 bis a.2.
• An order that fails to reason one of the points in Art. 588 bis c.3, authorises a different scope from the one sought, or is made for an offence outside the list in Art. 588 ter a.
• Extensions granted without a report on results or out of time, or listening continued after the authorisation had expired.
• Absence of effective judicial supervision: late or partial delivery of the media, unchecked transcripts, or a missing verification system under Art. 588 ter f.
• Use in another case of an incidental finding without a certified record or a fresh authorisation.

Where the defect affects the right to secrecy of communications under Art. 18.3 of the Constitution, Art. 11.1 LOPJ comes into play: evidence obtained, directly or indirectly, in breach of fundamental rights has no effect. Nullity may then drag down not only the recordings but the steps derived from them — searches, seizures, statements — unless there is an independent source or the link to the intrusion is regarded as legally attenuated. That analysis is developed in the article on the fruit of the poisonous tree doctrine.

What the defence reviews in a phone interception

The work starts by obtaining the complete separate file: the initial application, the authorising order, the periodic reports, every extension order and the media with the full recordings. Then come the dates: when it was authorised, when listening actually began, whether each extension was granted before expiry and whether time ran from the end of the previous period.

Nullity is raised as a preliminary issue at the start of the trial or in the defence submissions, and repeated on appeal. It should not be confused with neighbouring challenges: the chain of custody of the items seized, the search of mass storage devices, with its own regime in Arts. 588 sexies a to 588 sexies c, and the specific issues of wiretapping in drug cases.

If recorded conversations appear in your case, the prudent step is to have a criminal defence lawyer review the file from the first application. You can contact us at +34 91 078 65 74.