The Constitutional Court endorses the use of infiltrated agents in police investigations

The Constitutional Court has endorsed this Tuesday the use of infiltrated police officers, under the supervision of the Prosecutor’s Office, to investigate the actions of criminal organizations, as long as their work does not involve the violation of fundamental rights; In that case—for example, if the infiltrator carries out an intervention on telephones or communications—he must have judicial control. The case that has given rise to the guarantee court’s ruling is that of a person who was sentenced to eight years in prison for drug trafficking. That sentence was handed down by the Madrid Court and ratified by the autonomous Superior Court and then by the Supreme Court. The defense appealed for protection before the Constitutional Court, estimating that the police action, with the use of three infiltrated agents, had occurred without the investigating judge being informed, and that this had represented a violation of fundamental rights.

By ten votes to one, the Constitutional Court concludes that the infiltrator’s work complied with the provisions of the Criminal Procedure Law, as reported by the court in a statement. The dissenting vote is that of Judge Ramón Sáez, from the progressive sector, who believes that judicial control must always exist because in this work fundamental rights, such as the right to privacy, are necessarily affected. Sáez’s vote highlights that the infiltrator had to gain the trust of the investigated, “which means accessing his private sphere through deception” and getting “him to allow him a complicity that would never be granted if he knew his condition.” . Therefore, he maintains, the impact on the fundamental right entails the “necessary intervention of the judge in the authorization of the measure, with respect to the principle of proportionality.”

The other ten magistrates, however, have estimated that that police action had full legal protection; There are, however, four concurrent votes, that is, of judges who agree with the meaning of the sentence but with different arguments. The Constitutional Court has needed several debate sessions in plenary to issue this resolution, which generated a lot of internal debate, according to sources from the guarantee body. In fact, this deliberation began two years ago, following the investigation by the Prosecutor’s Office with the intervention of an undercover agent, whose work had allowed a cache of 50 kilos of cocaine to be intercepted in 2019.

The broad consensus finally achieved on the sentence is based on the principle that the Prosecutor’s Office “can carry out or order – without immediate supervision of the judges and courts – those proceedings for which it is authorized according to the Criminal Procedure Law, unless “are limiting fundamental rights.” Now, the judge must be informed of the investigation “at the time the prosecutor’s pre-procedural proceedings are concluded.”

The ruling refers to the “spirit and purpose” of article 282 bis of the Criminal Procedure Law, which “enables the prosecutor to carry out investigations using undercover agents.” And he emphasizes that the rights of the person under investigation are guaranteed by the fact that, “at the time the proceedings are judicialized, he may question the regularity of the authorization before the competent judge.” The ruling also highlights that the mere authorization of the undercover agent does not affect any fundamental right, since, when “such rights may be affected by his actions, then the judicial body does intervene through judicial authorization in the terms established by the Constitution and the law”, in this case in accordance with the provisions of article 282 bis. 3 of the Criminal Procedure Law.

The four judges who present a concurring vote – differentiated, but not dissenting – share with the other six that the essential thing is to assume the criterion that “it will be the specific actions of the undercover agent that may affect the right to privacy or other fundamental rights.” , and in constitutionally and legally required cases, prior judicial authorization must be obtained.” In summary, therefore, the figure and work of the infiltrators is endorsed, but as long as it does not violate the rights that the Constitution proclaims as fundamental, because this could result in the nullity of the evidence obtained. The four magistrates who sign the concurrent votes are the president of the court, Cándido Conde-Pumpido, the vice president, Inmaculada Montalbán, and the magistrates Juan Carlos Campo and María Luisa Segoviano.

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