Resolution of the Coroner & Statement of Personal Communications
Resolution of the Coroner
1. Budgets of the Coroner (TS, TC, ECHR)
Constitutionally Legitimate Purpose: To verify or discover facts relevant to a criminal investigation.
Implications: Requires prior evidence of a crime. It’s not merely exploratory; it’s part of judicial proceedings related to a specific criminal act.
Suitability: Probability assessment of the action’s utility in achieving the purpose. Justification for why the measure is likely to uncover relevant data.
Specificity: Focuses on a particular crime. Evidence of other offenses requires new court decisions.
Necessity: The same effect cannot be achieved through less intrusive means.
Proportionality: Intensity of intrusion must relate to the offense’s severity and the relevance of obtainable data. The legal standard for custody budgets (crimes with at least two-year imprisonment) can be a guiding criterion.
Legality: Requires a factual basis to disclose criminal activity. This is the most common reason for annulments of investigative measures.
2. Requirements for a Coroner’s Decision
A. Motivation: Must justify the existence of the budgets, factual reasons for suspecting criminal activity, and the utility, necessity, and proportionality of the measure. (STC 123/02)
B. Content:
- The person(s) affected by the measure.
- Content of the right to interference (e.g., intercepted communication type, area of residence registration).
- Mode of interference (time, place, authorized personnel, guarantees for custody, treatment, and disposal of results).
Statement of Personal Communications
Concept: Interference with fundamental rights recognized in Art. 18.3 EC, Art. 8 of the European Convention on Human Rights, and Art. 17 of the International Covenant on Civil and Political Rights.
General Principle: Freedom of communication. Restrictions are permissible only in specific cases (Art. 51.2 LGP).
Communication: The transmission of meaning through sounds, signals, or signs.
Art. 18.3 EC covers postal, telegraph, and telephone communications, extending to all present and future forms (telex, fax, email, internet, etc.).
A. Mail, Postal, and Telegraphic Communications
Constitutionally Protected Object: Art. 18.3 EC refers to the secrecy of postal communication, not postal secrecy (STC 9 Oct. 2006).
B. Wiretaps
Art. 579.2 Lecro: Court-authorized interception of telephone communications with reasoned decision, based on evidence for discovery or verification of important facts.
Modalities: Listening to and recording conversations (intervention), single call control (observation).
Deadline: Essential, usually one month (renewable, not exceeding three months). Extensions require prior review of results (STC 205/2005).
3. Operations of Computer and Electronic Communications
Subject to general requirements (Art. 33, Law 32/2003). Law 25/2007 mandates data retention for 12 months. Judicial authorization is required for assignment to Security Forces.
5. Entry and Registration of Closed Premises
Concept: Art. 18.2 EC protects home inviolability, except in cases of flagrante delicto or with a court decision.
Exceptions:
- Flagrante delicto (Art. 553)
6B. Undercover Agents
Art. 282 bis lecro: Regulated use of undercover agents in organized crime investigations.
6C. Circulation and Controlled Delivery of Drugs
Art. 263 bis: Authorization for controlled movement of drugs to identify those involved in drug offenses.