The Constitutional Court approves police investigations with undercover officers

Last Tuesday, the plenary session of the Constitutional Court approved the constitutionality of the Constitutional Court actions of undercover agents in operations to combat organized crime. He did this by rejecting the statement appeal for the protection of a person sentenced to 8 years for drug trafficking, who questioned before the guarantee body the violation of his right to privacy and the lack of judicial control over the actions of the infiltrated police officers.

The appellant doubted whether the judge had been informed of this action only two months after the approval of the Chief Anti-Drug Prosecutor. During this period, two extensions were issued and the relationship of trust between the drug trafficker and not the undercover officers was strengthened. that he got to know his immediate environment (his partner). The decision of the plenary on this issue was crucial in ongoing investigations in which the figure of the undercover agent is necessary.

After examining the different modalities of police infiltration, the plenary confirms that the activity of police infiltration is based on various regulations of the legal system and that the regulation of the undercover agent in art. 282 bis of the Criminal Procedure Act (LECrim) has precisely this as its main purpose strengthen its actions against physical and legal risks to which it is exposed. He is therefore given an assumed identity and the ability to act against third parties with it, as well as exemption from criminal liability for crimes he might commit under certain conditions.

Rights of the person being investigated

The ruling, which ABC reported on Tuesday, believes that the regulation also sought to strengthen the rights of the persons under investigation against the risk of the existence of the provoked crime by providing an accessible procedure to investigate the undercover agent by the prosecutor enable and in which precisely it starts from the preexistence of evidence of crime.

The magistrates believe this should happen a “systematic and finalistic interpretation” of the requirement of immediate notification to the judge in accordance with both the rules governing the pre-procedural investigation of the Public Prosecution Service and the spirit and purpose of Article 282 bis of the LECrim, which requires the public prosecutor to conduct investigations attributes using the figure of the undercover agent.

In this sense, the Public Prosecution Service can – without direct supervision from judges and courts – carry out or order the procedures for which it is competent. unless it concerns restrictions of rights fundamental. The court emphasizes that the mere presence of the undercover agent does not violate this right to privacy.

The plenary also rules out that the right to a trial with all guarantees in the light of the risk of an provoked crime has been violated for various reasons: it is precisely the provision of an accessible and verifiable procedure to enable the undercover agent guarantee against criminal provocation; the existence of prior evidence of the commission of a crime supporting the undercover officer's consent; the motivation for the decision of the police-based Special Anti-Drug Prosecutor; the practice of examining the evidence proposed by the person under investigation to exclude any indication of provocation of the crime and considering the statements of the police officers as valid and non-suspicious evidence on which to base the conviction.

The verdict has the dissenting voice of Judge Ramón Sáez, who disagrees with his colleagues in his view that the figure of the undercover agent at least affects the fundamental right to privacy. To do this, he argues that police must gain the trust of the person being investigated, which means “gaining access to their private sphere through deception” and giving them permission a complicity that would never be allowed to know your condition. For this reason, he emphasizes, the impact on fundamental right implies the “necessary intervention” of the judge in approving the measure, in compliance with the principle of proportionality.

They have also announced a private vote, in this case simultaneously (they share the ruling) with the president of the TC, Cándido Conde-Pumpido; the Vice President, Inmaculada Montalbán, and the Judges Juan Carlos Campo and María Luisa Segoviano.

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