Título Tercero. Métodos especiales de investigación

Undercover operations shall be understood as those carried out by undercover agents for the purpose of obtaining information or evidence that allow the prosecution of persons who form part of organized criminal groups and their dismantling, through the design of effective strategies under strict control of the Public Prosecutor's Office.

In the investigation phase against organized criminal groups or criminal organizations that, specifically carried out by undercover agents involving the commission of crimes against life, kidnapping or abduction, with due authorization and supervision and under the responsibility of the Public Prosecutor's Office, the following activities are prohibited and excluded from undercover operations:

1.The provocation of crimes.

2.Operations carried out outside the actions and planning in the investigation phase.

In all cases, due authorization and supervision by the Public Prosecutor's Office shall be required for such activities to be permitted.

Undercover agents are the special police public officials who voluntarily, at the request of the Public Prosecutor's Office, are assigned a function for the purpose of obtaining evidence or information that makes it possible to uncover and prosecute the members of organized criminal groups.

Undercover agents may temporarily assume fictitious identities and roles, act secretly and omit performance of the normal procedures of their office upon the commission of crimes, with the exception of those established in Article 25 of this law, in the cases assigned to them, in order to optimize the investigations and the prosecution of members of such organizations.

For the purpose of this Law, undercover agents shall be empowered to intervene in commercial traffic, assume obligations, enter and participate in meetings at the workplace or domicile of the accused person or the places where the organized criminal group carries out its operations or transactions.

Likewise, if the undercover agent finds, in the places where the operation is carried out, information useful for the purposes of the operation, he shall inform the prosecutor in charge of the investigation thereof so that the latter orders the conduct of a special operation for the collection of the information and the material elements or physical evidence found.

When the Public Prosecutor's Office becomes aware of the existence of an organized criminal group, it shall order the respective police authority to conduct an analysis in order to ascertain its organizational structure, the aggressiveness of its members, the places where and with whom they carry out their operations and, if possible, its weak points.

It shall subsequently order the planning, preparation and management of an operation, so that the undercover agent or agents infiltrate the criminal organization, in order to obtain useful information that serves to achieve the objectives established in this Law.

Undercover agents who have knowledge of future torture, specific, serious or very serious injuries, crimes of rape and indecent assaults, shall immediately bring it to the knowledge of the respective authorities in order to prevent the commission thereof.

At the request of the prosecutor of the Public Prosecutor's Office in charge of the case and under his responsibility, the Prosecutor General of the Republic and Head of the Public Prosecutor's Office may authorize undercover operations, for a maximum time of six months, renewable as many times as necessary without the total time limit of the operation exceeding one year.

The request for the undercover operation shall be made in writing and shall contain:

a)Description of the act under investigation, indicating the possible crime or crimes involved.

b)Background information allowing the presumption that the undercover operation will facilitate the achievement of the objectives pursued under this Law; justification for the use of this measure, substantiating its necessity on the likelihood that the ordinary investigation system will not succeed in obtaining the necessary information.

c)In general terms, the activities that the undercover agent will carry out for obtaining the information and the methods to be used to document the information collected by the undercover agents, in accordance with Article 29 of this Law.

d)The fictitious identity to be assumed and the functions of the undercover agents who will participate in the operation; the real identity shall be known only to the prosecutor in charge of the case.

e)In a sealed envelope, the real identity of the undercover agent, which shall remain in the custody of the Prosecutor General of the Republic and Head of the Public Prosecutor's Office, without the latter being able to know the contents thereof, except where necessary upon termination of the operation.

f)Where known, the name, alias or any other circumstance enabling identification of the persons or members presumably linked to the criminal organization or its unlawful operations.

The Prosecutor General of the Republic and Head of the Public Prosecutor's Office may require from the applicant additional elements of assessment supporting the request.

The Prosecutor General of the Republic and Head of the Public Prosecutor's Office shall hear and decide immediately the request submitted by the prosecutor. The decision shall be reasoned and, if authorization is granted, shall contain the following requirements:

a)The determination of the undercover agents who shall participate in the operation.

b)Indication of the general activities authorized to be carried out during the undercover operation and the methods to be used to document the information provided by the undercover agents in accordance with Article 29 of this Law.

c)The object and the time limit for which the undercover operation is authorized.

d)The obligation of the prosecutor to verbally inform every thirty days the Prosecutor General of the Republic and Head of the Public Prosecutor's Office on the progress of the activities carried out by the undercover agents, to verify whether the measure is fulfilling the purpose pursued and the rules established in this Law for the use of the measure. For such purpose, the Prosecutor General of the Republic and Head of the Public Prosecutor's Office shall convene a private hearing so that the fiscal agent in charge of the case verbally reports on the progress of the investigation and the information collected to date; he may require at any time that the documentation and means of evidence supporting the report be exhibited to him.

e)The express prohibition against undercover agents provoking the commission of crimes to achieve an eventual detention or prosecution of any person.

During the undercover operation, prosecutors shall document the information they receive verbally from the undercover agents. Such information may be obtained through following, surveillance, voice recordings of the persons under investigation, the use of microphones or other mechanisms that allow such purpose, photographs, image recordings or other technical-scientific methods that allow verification of the information provided by the undercover agents.

The undercover agent who engages in unlawful activities necessary for the performance of his mission shall be exempt from criminal, civil and administrative liability, provided that the following conditions are met:

a.That his actions have prior authorization from the Prosecutor General of the Republic and Head of the Public Prosecutor's Office.

b.That his activity is within the guidelines determined by the Public Prosecutor's Office in the exercise of direction of the investigation.

c.That the undercover agent periodically informs the prosecutor in charge of the case and his superiors about the acts and proceedings he carries out and the result thereof.

d.That his activities are not aimed at concealing, destroying or altering evidence of the activity of the criminal organization, or at covering up failures in the operation or in the actions of his superiors or other agents.

e.That the undercover agent does not motivate, induce or provoke the commission of a criminal offense by any member of the criminal organization or by other persons.

f.That the activities are not aimed at profit or personal benefit of the undercover agent or of his relatives within the degrees provided by law.

g.That the activities do not consist of punishable acts provided for in Article 25 of this Law.

The undercover agent who commits a crime by exceeding the general activities for which the agent is authorized shall be sanctioned with the penalty prescribed for the crime committed increased by one-fourth.

From the first statement, the accused person or his defense counsel may review the case file which shall contain the documentation of the information gathered during the undercover operation, for the purpose of verifying whether in the procedure and in the acts carried out the rights and guarantees of the accused person were not violated and whether the content of this Law was respected.

The fiscal agents shall be responsible for the direction, development and documentation of the undercover operation. If they detect deviations or abuses in the development of the operation by the undercover agents, they shall immediately suspend the operation and inform the Prosecutor General of the Republic and Head of the Public Prosecutor's Office of the reasons therefor and, if appropriate, they shall formulate the respective accusation for the prosecution of the undercover agent.

The Minister of the Interior is the hierarchical superior responsible for exercising administrative control over personnel performing undercover agent functions, with control of the information and investigation remaining exclusively with the Prosecutor General of the Republic and Head of the Public Prosecutor's Office and the respective prosecutorial agent.

Controlled delivery shall be understood as the investigative method that allows the transportation and transit of illicit or suspicious remittances, as well as drugs or narcotics and other prohibited substances, materials or objects or of illicit trade, that enter, circulate in or leave the country, under the strict surveillance or monitoring of authorities provided for in this Law.

This method shall be used for the purpose of discovering the transit routes, the manner of entry into and exit from the country, the distribution and marketing system, the obtaining of evidentiary elements, and the identification and prosecution of the organizers, transporters, buyers, protectors and other participants in the illegal activities.

During the conduct of undercover operations, the Prosecutor General of the Republic and Head of the Public Prosecutor's Office, upon request and under the responsibility of the prosecutorial agent in charge of the case, may authorize one or more undercover agents to put into circulation within an organized criminal group drugs or narcotics, as well as other prohibited substances, materials or objects or of illicit trade, for the purpose of discovering the functioning and operation of such organizations and obtaining the other information sought through the use of controlled deliveries.

Controlled deliveries shall be carried out by a special team composed of personnel of the National Civil Police, under the strict supervision and direction of the Public Prosecutor's Office, and they shall be periodically evaluated with scientific methods to ensure their suitability in the performance of such activities.

The fiscal agents in charge of the case shall request in writing and under their liability, before the Prosecutor General of the Republic and Head of the Public Prosecutor's Office, authorization for the controlled delivery, who shall decide immediately. Such request shall contain the following requirements:

a.Description of the act under investigation indicating the crime or crimes within which they fall.

b.The background information that allows presuming that the controlled delivery will facilitate the achievement of the objectives pursued by this Law.

c.The justification for the use of this measure, substantiating its necessity on the probability that the ordinary investigation system will not succeed in obtaining the necessary information.

d.In general terms, the methods to be developed to document the information on the controlled delivery, in accordance with Article 29 of this Law.

e.Where applicable, the detail of the substances, property or objects of illicit commerce that will be put into circulation, indicating with precision the quantities thereof, and the justification of the results intended to be achieved. Where this is not possible because such substances, property or objects will not be put into circulation by undercover agents, the class of substances or property to be allowed to circulate for the achievement of the purposes of the controlled delivery shall be indicated in general terms.

The Prosecutor General of the Republic and Head of the Public Prosecutor's Office shall be competent for the authorization of controlled deliveries, under his or her responsibility.

The Prosecutor General of the Republic and Head of the Public Prosecutor's Office shall issue his duly reasoned decision, determining the following points:

a.Description of the fact under investigation.

b.The justification for the use of this measure, substantiating its necessity based on the probability that the ordinary investigation system will not achieve the obtaining of the necessary information.

c.In general terms, the methods authorized to document the information of the controlled delivery, in accordance with Article 29 of this Law.

d.If the substances or property are placed into circulation by undercover agents, the detail of the substances, property or objects of illicit trade to be placed into circulation shall be indicated, indicating with precision the quantities and characteristics thereof, and the justification of the intended results to be achieved.

e.When the substances or property are not placed into circulation by undercover agents, the class of substances or property to be allowed to circulate for the achievement of the purposes of the controlled delivery shall be indicated in general terms.

If, based on what is stated by the prosecutor in charge of the case in his request, the Prosecutor General of the Republic and Chief of the Public Prosecutor's Office considers that the authorization of the controlled delivery provided for in this Law is not viable, due to deficiencies in the request, the Prosecutor General of the Republic and Chief of the Public Prosecutor's Office shall immediately communicate to the prosecutor the faults or deficiencies affecting it so that they may be remedied immediately or within a time limit of no more than twenty-four hours. If such deficiencies cannot be remedied, the Prosecutor General of the Republic and Chief of the Public Prosecutor's Office shall issue the corresponding decision with due reasoning.

Once the controlled delivery is authorized, the prosecutor in charge of the case shall coordinate with the head of the special unit the designation of the agents who will carry out the controlled delivery, who shall be responsible for continuously informing the prosecutor of the progress of the operation, so that the latter may decide the pertinent procedural steps when he deems it necessary.

During the controlled delivery operation, the agents participating therein, under the direction of the prosecutor, shall document the controlled delivery by means of voice recordings, use of microphones, photographs, image recordings, or other technical-scientific methods that ensure the proper control of the operation. The documented information shall be made available to the prosecutor in charge of the case immediately.

Within three days after the conclusion of the controlled delivery, the Prosecutor General of the Republic and Head of the Public Prosecutor's Office shall be informed by the prosecutor in charge of the case regarding the results of said operation, in particular regarding the existence and whereabouts of the illicit substances, property or objects that were allowed to circulate.

For the authorization of controlled deliveries of substances, property or objects of illicit trade coming from other countries, the authorities of the requesting country or of the country of final destination thereof shall provide the Public Prosecutor's Office with the necessary information so that the designated prosecutor may substantiate the request for purposes of the respective authorization.

When the controlled delivery has concluded and substances, property or objects of illicit trade have been seized, the agents in charge of the operation, under the direction of the prosecutor responsible for the case, shall secure the chain of custody to guarantee that the evidence obtained meets the requirements to be incorporated into the proceedings.

The Prosecutor General of the Republic and Head of the Public Prosecutor's Office may at any time order the cessation of undercover operations or of the controlled delivery procedure, the detention of the participants in the unlawful act and the seizure of the substances and of the instruments of the crime, placing them at the disposal of the competent judge, if in his judgment:

1.The operation seriously endangers the life or physical integrity of any undercover agent or other persons unrelated to the unlawful acts of the criminal organization.

2.The operation hinders or prevents verification of the unlawful acts under investigation.

3.The operation enables the participants to evade the action of justice.

4.The operation deviates from [its] purpose or evidences abuse, negligence, recklessness or lack of skill on the part of those carrying it out.

5.The factual predicates supporting the advisability of continuing to apply the modality of undercover operations or controlled deliveries have changed or disappeared.

6.The operation has violated a constitutional precept.

When it is necessary to prevent, interrupt or investigate the commission of the crimes regulated in Articles 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of this law, oral, written, telephone, radiotelephone, computer and similar communications that use the electromagnetic spectrum, as well as any others of another nature that may exist in the future, may be intercepted, recorded and reproduced, with judicial authorization.

Prosecutors of the Public Prosecutor's Office are the only ones competent before the corresponding judge to request authorization for the interception of the communications mentioned in the preceding article, when the situation makes it convenient. When the police body has knowledge of the commission or planning of the commission of crimes by organized criminal groups, it shall immediately resort to the Public Prosecutor's Office providing all the information necessary to support the request for the interception of such communications.

Requests for authorization for the interception of communications regulated in this Law shall be submitted in writing before the competent judge with the following requirements:

a.Description of the fact under investigation, indicating the crime or crimes under which they fall.

b.Telephone numbers, frequencies, electronic addresses, as applicable, any other data that may be useful to determine the electronic or computer means intended to be intercepted for the listening, recording or reproduction of the respective communication.

c.Description of the investigative proceedings and means of investigation carried out up to that time.

d.Justification for the use of this measure, substantiating its necessity and suitability.

e.If available, names and other data that allow identification of the person or persons who will be affected by the measure.

In crimes in which life or personal liberty is in danger, the Public Prosecutor's Office may submit the request verbally to the competent judge who shall decide immediately.

It shall be understood that necessity for the interception of communications exists when the authorized means of investigation and the completed interceptions of communications demonstrate that in the crimes committed by members of organized criminal groups the means of communication established in this Law are being used. Likewise, it shall be understood that suitability of the use of the interception of communications exists when, considering the nature of the crime, it can be determined that the interception of communications is effective to obtain elements of investigation that allow preventing, interrupting or clarifying the commission of the crimes committed by members of organized criminal groups.

The Judges of First Instance of the Criminal Branch corresponding to the territorial district where crimes have been committed, are being committed or the commission of crimes by members of organized criminal groups is being planned shall be competent for the authorization of the interception of communications regulated in Article 48 of this Law.

When the commission of the crime has occurred or its commission is being planned in different places, any of the Judges of First Instance of the Criminal Branch of such places shall hear the requests for interception of such communications.

When for reasons of schedule or any other reason it is not possible for the Judges of First Instance of the Criminal Branch to hear the interception request immediately, the same may be filed before the corresponding Justice of the Peace Judge in accordance with the criteria of the two preceding paragraphs. In this case, the Justice of the Peace Judge shall decide immediately and forward the proceedings at the first business hour of the following day to the competent jurisdictional Judge of First Instance so that, within a maximum term of three days, said Judge ratifies, modifies or revokes the decision adopted by the Justice of the Peace Judge.

The competent judge shall immediately decide the interception requests provided for in this Law, being liable for unjustified delay in the decision thereof. The order deciding this type of requests, in addition to the formal requirements of a judicial order, shall contain the following:

a.Justification for the use of this measure indicating the reasons for which the interception request is authorized or denied.

b.Definition of the act under investigation or sought to be prevented or interrupted, indicating the crime or crimes under which they fall.

c.Telephone numbers, frequencies, electronic addresses, as applicable, or any other data that may be useful to determine the electronic or computer means authorized to be intercepted.

d.Time limit for which the interception is authorized. The authorization shall have a maximum duration of thirty days, which may be extended in accordance with this Law.

e.Names and other data permitting identification of the person or persons who will be affected by the measure, in case these have been provided by the requesting body.

f.The date and time for the hearing for review of the report referred to in Article 59 of this Law.

The prosecutor in charge of the case shall immediately cease the interception when any of the circumstances established in Article 47 of this Law occurs and shall be liable in accordance with the law.

If, on the basis of what has been stated by the prosecutor in the request, the competent judge considers that authorization of the interception of communications provided for in this Law is not viable, due to deficiencies in the request, the competent judge shall immediately communicate to the prosecutor the flaws or deficiencies affecting the same so that they may be remedied immediately or within a time limit of no more than twenty-four hours. If such deficiencies are not remedied, the judge shall issue the corresponding decision with due statement of reasons.

The interception, recording and reproduction of the communications referred to in Article 48 of this Law shall be carried out by specialized personnel of the National Civil Police, who shall be periodically evaluated by scientific methods to ensure their suitability in the performance of such activities.

To that end, the Minister of the Interior shall establish a special team of technicians who shall be assigned exclusively to the performance of such functions.

The Public Prosecutor's Office shall organize the consultation terminal units where the interceptions, recordings and reproductions of the communications provided for in this Law shall be carried out, which shall be strictly regulated so that a computer and electronic register of all activity carried out in said units remains for the effective control of respect for the guarantees and adherence to legality by those who intervene therein. For such purpose, all companies providing telephone, computer or other electronic communication services shall cooperate with the Public Prosecutor's Office with the equipment necessary for the conduct of the interceptions of the communications provided by their services.

The First Instance Judges of the Criminal Branch who have anticipation prior to the date on which the prior period expires. provided for in this Law, shall attend to verify that the procedures are being carried out in conformity with the present Law and that unauthorized interceptions, recordings or reproductions of communications are not being carried out, such control shall be carried out by them personally at least once within the authorized period, drawing up a record of such visit.

The authorization of the interception measure shall expire once the time limit authorized by the judge has elapsed, unless the extension is requested by the prosecutor responsible for the investigation. In this case, the necessity and suitability of continuing with such activity shall be justified in accordance with the criteria established in Article 51 of this Law.

The measure may likewise be terminated when the objective for which the interception authorization was issued is achieved.

At the same time that the interception measure is authorized, the competent judge shall establish the obligation of the prosecutor to report every fifteen days on the development of the activity of interception, recording and reproduction of communications, in order to verify whether the measure is fulfilling the purpose pursued and whether the rules established in the present Law for the use of the measure are being complied with.

The omission by the prosecutor of the submission of this verbal or written report, or if his explanations are not satisfactory to the judge, may be sufficient grounds to revoke the authorization and order the suspension of the interception.

The prosecutor and their investigators shall draw up a detailed record of the transcription of the useful and relevant communications for the verification or submission of evidentiary material concerning the punishable act under investigation, taking into account that any other personal or intimate information shall be excluded from the certified report submitted as evidence of the felony or crime. The Public Prosecutor's Office shall retain the originals of the transcriptions as well as the unedited cassette or cassettes containing the recorded voices, until reception of the first statement of the accused person is requested, at which time it shall place at the disposal of the competent judge the case records in its possession. Once the hearing of the first statement has concluded, the original case records shall return to the possession of the Public Prosecutor's Office to complete the preparatory stage of the criminal proceedings.

Communications, information, messages, data or sounds transmitted in a language other than Spanish shall be translated into Spanish by an interpreter authorized by the supervisory judge. In all cases, the translations shall be performed upon prior oath to produce faithful versions, in accordance with what was said by the person under investigation. The means of evidence shall be the recordings or direct results of the interceptions, and the transcriptions shall serve solely as guides for a correct understanding thereof. In case of contradiction, the former shall prevail over the transcriptions.

The final result of the recordings shall have as its sole objective the substantiation of the procedure pursued by the prosecutor against the person to whom the interception of his or her communication is directed. To guarantee the right of defense, the recordings may be reviewed by the person who has been the object or target thereof, from the first statement of such person before the corresponding criminal tribunals.

The content of the recordings made in accordance with Article 48 of this Law shall only be valid as a means of evidence when it is the result of an interception authorized in accordance with the procedure established in this Law. Evidence obtained in violation of these formalities or in violation of the right to privacy beyond that established by the judicial authorization is illegal, without prejudice to the legal liabilities incurred by the person carrying it out.

When, as a consequence of an interception measure authorized in accordance with this Law, information concerning criminal acts of the person under investigation or of a third party not provided for in the judicial authorization results, the prosecutor shall immediately bring it to the knowledge of the controlling judge, for the purpose of requesting a new authorization with respect to the newly discovered acts.

The First Instance Judges of the Criminal Branch shall keep a register book of all requests submitted for their consideration, indicating the date and time when they were received, the number of the request and the name of the representative of the Public Prosecutor's Office submitting it. A copy of the request and of the judicial decision shall be delivered only to the prosecutor in charge of the case. No information related to the interception proceedings regulated in this Law shall be provided to any entity or person.

The recordings and records in which the interceptions of communications established in this Law are documented, whether or not they have produced results, shall be destroyed under judicial supervision, one year after the criminal prosecution has ended or the imposed judgment has become final and enforceable where there are convicted persons. The destruction referred to in this article does not include the file of the criminal proceedings that have concluded.

The Public Prosecutor's Office shall request the extension of the period for the interception of communications at least two days from agreeing on the destination of the property for use by the authorities. The judge shall decide immediately on the basis of the report submitted to him.

When the extension has been denied, the prosecutor in charge of the case shall conclude the authorized interception, drawing up a record and submitting a supplementary report to the competent judge.

When any interception of communications shall have concluded, the prosecutor in charge of the case shall inform the competent judge of its progress and its results, drawing up the respective record for purposes of said report.

The prosecutor in charge of the case shall draw up a detailed record of every interception carried out, which shall contain the start and end dates thereof; a detailed inventory of the documents, objects, audio tapes and any other medium used in accordance with this Law, containing the sounds captured during the same; the identification of those who participated in the proceedings, as well as any other data that the prosecutor considers relevant to the investigation.

The documents, objects, tapes and any other record obtained in the interceptions shall be numbered in original and in duplicate in progressive order and shall contain the data necessary for their identification.

They shall be kept in a sealed envelope to preserve the chain of custody of the evidence and the prosecutor in charge of the case shall be responsible for their security, care and integrity, and must place on record every act performed.

Those who participate in any interception of private communications shall maintain confidentiality regarding the contents thereof.

Voices from an intercepted communication against the accused person may be compared by suitable means to be incorporated into the criminal proceedings as evidence or means of evidence.

The public officials or public employees who participate in any phase of the special investigative methods referred to in this title, who reveal, disclose or use improperly or to the detriment of another the information or images obtained in the course thereof, shall be punished with imprisonment of six to eight years, as well as with removal and disqualification from holding another public employment, office or commission, for the same period as the imposed imprisonment penalty.

The same penalty shall be imposed on those who, by reason of their public employment, office or commission, have knowledge of the existence of a request or authorization for the methods described above and reveal its existence or content.