Reading recommended to understand this supposed case of the listening to the lawyers of the Gürtel that has cost to the judge of the National Hearing the third complaint admitted to step into the Supreme Court: the resource of entreaty of the District attorney's office to the Supreme Court endorsing the judge Waiter (doc).
The plaintiffs - between them, proper Thong - denounce two types of conversations recorded between the accused and his defenders: the telephone pricks and the recordings when they spoke with them in the jail; a few tests that disabled persons consider and with those who try to annul the whole investigation for the door of behind of the form defect. This explains the District attorney's office on the phone tappings:
The professional secret that it protects to the relations of the lawyers with his clients, can, in exceptional circumstances, be interfered by judicial decisions that agree the telephone intervention of the devices installed in his professional offices. It is clear that the measurement covers an unquestionable gravity and has to be considered carefully by the judicial organ that agrees it, must limit itself to those assumptions in which a steadfastness exists, sufficiently confirmed, of that the lawyer could have exceeded his obligations and professional responsibilities integrating into the criminal activity, like one of his component elements.
In the case that occupies us, there has not taken place the telephone intervention of any professionals' phone of the legal profession. What has happened is that, across the interception of several suspects' phones, there are recorded conversations realized apparently with attorneys in charge of his legal advice. In this circumstance the professional secret cannot act with the same energy and steadfastness that takes place, when he is the client the one that comes to the office of the lawyer and in this moment, the interception of the conversation takes place, without cause or foundation that justifies it. The attorney who uses his phone to communicate with his clients who have it taken control, he cannot claim a privileged dealing that extends the secret to these ends. The evaluation of the content of the conversations will have to be used cautiously by the organ juzgador, but in no case it is possible to declare the nullity of his content.
For the exposed thing, all the motives that refer to the nullity of the phone tappings must be insignificant.
The juridical argumentation on why is it possible to listen with judicial order to a lawyer when he speaks with his client in a visit in the jail is slightly more extensive and, therefore, much more difficult to sum up. As the district attorney explains, there is a somewhat confused specific regulation for the administrative authorities - for the prison guards, so that it is understood - and generic other one for the judges, who yes can puncture the conversations between a lawyer and his defended one, although they are forced to justify it very well. I try an explanatory extract, although I recommend the finished reading of the document, which is not so long either and helps to understand very well the topic
Although the general diet of these interventions does not provoke any interpretive difficulty, the question has presented to itself, nevertheless, more polemic as for the intervention of the communications of the interns with his lawyers, since this measurement, in accordance with the art. 51.2 LOGP, it can only be adopted “by order of the judicial authority and in the terrorism assumptions”, what for his syntactic ambiguity it allows to extend or reduce the ambience of application of the prescript as the locution is understood formulated in alternative or accumulative terms.
In effect, the STC 183/1994 limits itself to declaring that “the art. 51.2 of the L.O.G.P. authorizes only the judicial authority to suspend or to take control, in a motivated and proportionate way, of the communications of the intern with his Lawyer without he authorizing in no case the Penitentiary Administration to interfere these communications”. What the Constitutional Court declares is that the possibility of taking control of the communications of an intern with his attorney cannot be left to itself in exclusive hands of the administrative authority by — the director of the center — but this measurement, for the entity of the affected right — the right of defense — it needs judicial previous authorization.
(…) clearer if it fits in this point turns out to be the ATS of December 10, 1999 (Door Luis), according to which, “the intervention of the communications agreed by the Director of a penitentiary center of the art. 51 of the LOGP does not keep any relation with the interventions that can remember under protection of the art. 579 of the LECr”.
(…) Of the exposed thing it is concluded that when the intervention of the communications of an intern has for purpose the investigation of a crime one will be able to come to the norm of the art. 579 LECr, without it proceeding to do distinction because of the recipient of the communication — pleaded or not — not of the nature of the crime — terrorism or not — since the art. 51.2 LOGP contemplated from the limited perspective of the penitentiary diet can arrange nothing — and it does not do it — against the penal procedural law enforcement. The Investigator will be able to agree the intervention of the communications in the investigation of any crime on the base of the art. 579 LECr with a proviso that in his resolution I expressed the judgment of suitability, need and proportionality of the measurement.
More abridged: it is possible to listen to a lawyer to speak with his defended one whenever a judge arranges it, and not only in cases of terrorism; it is not slightly strange that Waiter has not even been invented, but jurisprudence exists in abundance that it continues this criterion. It is easier to understand with an example, and there are cases to tens. The recent one: that of the investigation of the murder of Marta del Castillo. I quote again the resource of the district attorney:
Not less known by his sad actuality it is the case of the investigation continued by the murder and violation of young Marta del Castillo that 4 of Seville has given place to the D.P. nº 746/09 of the Court of first instance nº. The need to progress in the cause for, according to the literality of the resolution, “the clarification of the facts, level of the implication in them of the already imputed ones and, in his case, of third persons, and the find of the body of the minor” determined that the Instructor with base in the arranged in the 579.3rd art. LECr was agreeing for Edict of March 3, 2009 the “intervention, recording and listening of the communications that M.C.D, S.B.P and F.J.D.M. support in the Penitentiary Centers in which the same ones remain or remain imprisoned, so much phone companhies as of booth” (bold face in the original). Since in execution of the agreed thing the communications of the interns were recorded with his attorneys, the defense of the imputed one was of interest the nullity of this resolution for understanding compromised the defense right. The request was rejected by Edict of July 24, 2009, which he declares in this respect:“ … the car of March 3 Lawyer - client did not agree definitely the intervention or observation of the conversations however much they were recorded also as a result of not having being excluded and it is known that the content of these communications would not be usable against the culprits with his Lawyers except in the relevant thing to the find or location of the body of the victim”. Namely that in the intervention of the communications of the imputed one the Judge does not have why to exclude to limine those that this one supports with his lawyer, even though later it should reject those of this class that are not of interest to the concrete object of the investigation, in this case the find of the corpse. On the contrary, it is licit to contribute to the cause the recording of the communications of the imputed one with his lawyer if the same ones reveal where it is possible to locate the body of the victim, neither more nor less than the confession to the lawyer of the circumstances in which it got rid of corpus delicti — revelation at last not carried out — with the whole load incriminadora that it can bear. Something similar is what has happened in the present cause: they have intervened temporarily the communications of three imputed interns in a penitentiary center including to his lawyers like measurement directed especially to the investigation of the crime of money washing that those were planning and executing organizadamente from the prison.
And: why were the lawyers and his clients recording the conversations between? For the district attorney it is simple to explain: to investigate a crime that was taking place, precisely, during these conversations, in which Thong was giving instructions to his lawyers to move his money in the tax havens.
The intervention of the communications arranged by the resolutions that are appealed was a measurement objectively necessary for the investigation of the facts and provided to the gravity of these, it must be born in mind that the same one was directed especially to investigate the crime of money washing that, according to solid indications, the imputed ones kept on committing from the penitentiary establishment in which they were internal. Nothing to see, as one alleges, with the desire to discover the strategies of defense of the imputed ones, but with the obligation to investigate and to chase new acts of concealment and deviation of criminal effects placed out of the scope of the Spanish jurisdiction to the detriment of the arranged in the art. 503.2 LECr, which precisely justifies the provisional prison for the need to prevent the imputed ones from being able to commit new crimes.
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