Organic Law 13/2015 amending the Criminal Procedure Law to strengthen procedural guarantees and regulate technology-related investigation measures

08 / 10 / 2015

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On October 6, 2015 the Official State Gazette (BOE, issue 239) published two laws amending the Spanish Criminal Procedure Law: an organic law, Organic Law 13/2015, of October 5, 20155, to strengthen procedural guarantees and regulate technology-related investigation measures; and another, ordinary, law, Law 41/2015, of October 5, 2015, to speed up the criminal justice system and strengthen procedural guarantees.

The reason given by the Spanish legislature for approving two separate laws amending the Criminal Procedure Law at the same time lies in the different types of matters covered: as opposed to those that have a direct impact on, complement or develop fundamental rights and public freedoms –which article 81.1 of the Constitution requires to be regulated by an organic law–, others are strictly procedural matters which are not, purely speaking, a necessary complement to organic matters and may therefore be regulated in an ordinary law; these two different types are as follows:

Amendments to matters in the Criminal Procedure Law which need to be implemented by organic law (Organic Law 13/2015): provisions in which an attempt is made to strengthen the procedural rights of criminal defendants and of people who have been arrested or are held in custody -these provisions introduce new terminology such as “investigado” (“investigated” person) referring to a suspect under investigation in an examining phase and “encausado” to an accused person within criminal proceeding (once he or she has been indicted)–; and the laying down of specific rules for the restrictive technology-related investigation measures in article 18 of the Constitution.
Matters not required to be implemented by organic law (Law 41/2015): provisions intended to speed up the criminal justice system to try to avoid unnecessary delays; the putting in place of a separate confiscation proceeding; the procedure resulting from acceptance of a decree; general establishment of the second instance; broadening of the cassation appeal; and reform of the special appeal for review.

2. Organic Law 13/2015, of October 5, 2015, amending the Criminal Procedure Law to strengthen procedural guarantees and regulate technology-related investigation measures

2.1 Procedural rights of the suspect (investigado), of the detainee or of the person provisionally held in custody

2.2 Detaining and opening written and telegraphic correspondence

2.3 Technology-related investigation measures

2.3.1 “Cyber” undercover agent (article 282 bis)

2.3.2 Interception of phone and remote communications (new Chapter V of Title VIII, article 588 ter a. through article 588 ter m.)

2.3.3 Capturing or recording oral communications using electronic devices (new Chapter VI of Title VIII, articles 588 quarter a. to 588 quarter e.)

2.3.4 Use of technical image-capturing, tracking and location devices (new Chapter VII of Title VIII, article 588 quinquies a. through article 588 quinquies c.)

2.3.5 Searches on mass storage devices (new Chapter VIII of Title VIII, article 588 sexies a. through article 588 sexies c.)

2.3.6 Remote searches on computer systems (new Chapter IX of Title VIII, article 588 septies a. through article 588 septies c.)

2.3.7 Safety measures in relation to data storage (new Chapter X of Title VIII, article 588 octies)

2.4 Shared provisions on technology-related investigation measures (new Chapter IV of Title VIII, article 588 bis a. through article 588 bis k)

2.5 New terminology: “investigado” (suspect) and “encausado” (criminal defendant)

2.6 Amendments to the Organic Law on the Judiciary

3. Law 41/2015, of October 5, 2015, amending the Criminal Procedure Law to speed up the criminal justice system and strengthen procedural guarantees

3.1 Measures to speed up the criminal justice system

3.2 Adoption of a separate confiscation proceeding

3.3 General establishment of the second instance

3.4 Broadening of the cassation appeal

3.5 The reform of the special appeal for review

3.6 Additional Provisions

4. Transitional law and entry into force