Secrecy of the Investigation (Art. 302 LECrim): Preconditions, Time Limit and Lifting

Few situations cause more confusion than discovering that criminal proceedings exist in which you are named as a person under investigation, and that the case has been declared secret. The usual picture, an opaque investigation with no time limit, does not match what the law says. Article 302 of the Spanish Criminal Procedure Act (LECrim) ties secrecy to strictly defined purposes, to a short time limit and to compulsory lifting before the investigation ends. Knowing that framework is what allows the defence to decide what to do while it lasts.

You are under investigation and cannot see the file: what secrecy of the investigation is

The starting point of Art. 302 LECrim is the opposite of what people usually assume: the parties before the court may examine the file and take part in every step of the proceedings. Access is the rule. Secrecy is the exception, and it is only available where the offence is one prosecuted in the public interest, and by order of the investigating judge, on the application of the public prosecutor or of any party before the court, or of the judge's own motion.

The declaration may be total or partial. That distinction is decisive in practice: the law does not force a choice between complete transparency and complete opacity, so it is possible to ask for secrecy to be confined to the specific strand that justifies the measure, such as an interception of communications still under way, and for the rest to be released.

Secrecy operates as against all the parties before the court, prosecuting parties included. It is not a privilege of the investigation over the defence: a private prosecutor is equally shut out while it lasts.

Confidentiality of the file and declared secrecy: two different things

Art. 301 LECrim governs something prior and permanent: the steps taken during the investigation are confidential and not public until the trial stage opens, subject to the exceptions the law itself sets out. To reinforce this, it imposes a fine of 500 to 10,000 euros on any party's lawyer or court agent who improperly discloses the content of the file, and the same fine on any other person who is not a public official and commits the same breach; a public official answers under the Criminal Code.

That confidentiality looks outwards: it prevents the content from being circulated, not access by someone who is a party. Secrecy under Art. 302 LECrim, by contrast, looks inwards and temporarily suspends that access. Confusing the two leads to practical errors, such as believing that a "confidential" case stops a lawyer from examining the file or, conversely, that in a secret case the material can circulate freely among those who do have it.

The two strictly defined purposes

Art. 302 LECrim allows secrecy only where it is necessary for one of two purposes: a) to avoid a serious risk to the life, liberty or physical integrity of another person; or b) to prevent a situation that could seriously compromise the outcome of the investigation or of the proceedings.

Both are preventive and specific purposes. It is not enough to point to the complexity of the case, the presence of several people under investigation or the convenience of working without interference: the order must explain which specific step would be frustrated and why. That requirement to give reasons is the first ground of argument for the defence, and it also determines whether secrecy can be sustained when an extension is sought.

The provision also requires the offence to be one prosecuted in the public interest. For offences that can only be prosecuted on a complaint by the injured party, secrecy cannot be declared by this route.

The one-month limit and its extension

Art. 302 LECrim sets secrecy for no more than one month. The law does not create an open-ended measure: each declaration exhausts its effect within that period. Keeping the case secret beyond it requires a fresh reasoned decision establishing that the preconditions still apply; without one, access returns simply through the passage of time.

That mechanism of successive extensions has a counterweight that is sometimes forgotten: the whole investigation is subject to Art. 324 LECrim, which sets a maximum of twelve months from the opening of the case, extendable by order for periods of six months or less setting out with reasons what has prevented the investigation from being completed, the specific steps still outstanding and their relevance. The consequences of failing to comply with that regime are set out in the analysis of the investigation time limits in Art. 324 LECrim.

Secrecy kept in place for months by identical orders, without any updated assessment of necessity, is therefore vulnerable on two fronts: on its own reasoning, and on the way it eats into the investigation period.

The line that cannot be crossed: detention and Art. 505.3 LECrim

Art. 302 LECrim itself closes by stating that its provisions apply without prejudice to the second paragraph of Art. 505.3 LECrim. That provision, which sits within the hearing on remand in custody, guarantees that the lawyer for the person under investigation has in every case access to the parts of the file that are essential for challenging the deprivation of liberty.

This is the hard limit of the system. If a person is in detention and their remand in custody or the imposition of bail is to be argued, secrecy cannot empty that hearing of content: a genuine opportunity to challenge requires knowing, at the very least, what supports the application for deprivation of liberty. That minimum access is the defence's most important practical lever in a secret case, and it works together with the approach described in the criteria for remand in custody and in the first 72 hours after arrest.

What the defence can do while it lasts

The room for manoeuvre is smaller, but it is not zero. These steps remain available:

• Joining the proceedings. Party status is acquired even where the case is secret, and it is what allows service of decisions to be received and a reaction to follow as soon as secrecy is lifted.
• Insisting on the information required by Art. 118.1 a) LECrim. The acts attributed must be communicated in sufficient detail to allow the defence to be exercised effectively.
• Applying for partial lifting. Since secrecy may be partial, it is possible to ask for strands that do not compromise the stated purpose to be opened up.
• Deciding whether to give a statement. Giving a statement without knowing the material is a risky decision. The right to remain silent in Art. 118.1 g) LECrim applies regardless of secrecy.
• Reserving investigative steps. Recording in writing the steps that will be requested once secrecy is lifted prevents them from later being refused as out of time.

Lifting and the ten days beforehand

Art. 302 LECrim contains an unequivocal safeguard: secrecy must necessarily be lifted at least ten days before the investigation is closed. It is not a recommendation and it is not left to the investigating judge's discretion.

The purpose is clear: the defence must have a stretch of the investigation with full access, in order to examine what has been done and to request the steps it considers necessary before that stage closes. An investigation closed without respecting that margin deprives the defence of its only chance to take part in the investigation, and that is precisely the kind of defect contemplated by the third ground of Art. 238 LOPJ when it refers to disregarding essential procedural rules with actual prejudice to the defence.

Once secrecy is lifted, the work follows an order: a full examination of the file, identification of the steps taken without any opportunity to challenge, an application for the steps the defence needs and, where appropriate, a challenge to anything obtained in breach of fundamental rights.

How we work a case declared secret

Secrecy turns the investigation into an asymmetric procedure for a limited time, and much of the case turns on how the defence manages that wait. Our order of work is this:

• Check that it is still in force. Date of the order, time elapsed and whether a reasoned extension exists: expired secrecy is met by asking for access, not by appealing.
• Examine the reasoning. If the order does not identify which of the two purposes in Art. 302 LECrim it pursues, or which step it protects, there is material for a challenge.
• Trigger the access in Art. 505.3 LECrim where deprivation of liberty is at stake.
• Keep silence until the material is known, unless there is a specific reason to give a statement.
• Prepare for the day secrecy is lifted, with the application for investigative steps ready to be filed at once so as to use the remaining investigation period.

If you are under investigation in a case declared secret and do not know what room you have, that is exactly the question to resolve before the first statement. You can speak to us on 91 078 65 74.