Catalonia

Legislative and Jurisprudential Compilation (english) - Download document (.pdf)

Instruction-1/2009 of February 10, on the Processing of Personal Data Using Cameras for Video Surveillance Purposes (english) - Download document (.pdf)

LEGISLATIVE AND JURISPRUDENTIAL COMPILATION:

BASIC REGULATION OF POLICE FILES

Spanish Constitution 1978:

o Art. 10: Human dignity right.

o Art. 18.1: The right to honor, to personal and family privacy and to the

right to one’s own image.

o Art. 18.4: Limitation of information use to guarantee the honor and the

personal and family privacy.

o Art. 53.1: Guarantee of the fundamental rights and freedoms.

Organic Law 15/1999, of 13 December on the Protection of Personal Data.

o Art. 22.1: Police files.

o Art. 22.2: Collection and processing of data for police purposes.

o Art. 23.1: Exceptions and limitations of ARCO rights. (Access,

Rectification, Cancellation and Opposition).

o Art. 24: Other exceptions.

Law 5/2002, of 19 April on the Catalan Data Protection Authority.

o Art. 7.1: Files in public ownership.

o Art. 8: Inspection authority.

o Art. 15: Catalan data protection registry.

o Art. 16: Responsibilities.

Royal Decree 95/2009, of 6th February which regulates the Administrative

Registry Systems of Support to the Justice Administration.

o Art. 13: Inclusion of data in the system.

Decree 211/2002, of 1st August, of regulation of determinate automated files that

contain personal data managed by the Interior Department or Interior Ministry,

via Order INT/1751/2002, of 20th June, which regulates the computer files of the

General Police Direction that contain data.

Recommendation No. R(87) 15 of 17th September 1987, Council of Europe

Committee of Member States, regulating the use of personal data in the police

sector.

Framework Decision 2008/977 of 27th November 2008, on the protection of

personal data processed in the framework of police and judicial cooperation.

o Art. 17: Transmission of personal data among member states.

o Art. 18: ARCO rights.

Council Decision 2008/615/JAI, of 23 June 2008 on the stepping up of cross-

border cooperation, particularly in combating terrorism and cross-border crime.

Resolution INT/1828/2004 of 14 June.

o Art. 2: Generalitat Police Organization (Mossos d’Esquadra).

o Art. 3.4: Collection, storage, processing and utilization of data by the

Generalitat Police.

Directive 95/46/CE of the European Parliament and Council, of 24 October

1995, relating to the protection of individuals with respect to personal data and

the free movement of such data.

o Art. 28: Independent control

Directive 2006/24/CE of the European Parliament and Council of 15 March, on

the conservation of the generated or treated data relating to the provision of

communications services of public access or public communication networks.

Council of Europe Convention No. 108 of 28 January 1981.

o Art. 9: Exceptions and restrictions for the automated files provided by

the public security protection.

European Convention on Human Rights.

o Art. 6.1: Resource in front of the noncompliance of the personal data

protection rights.

WIRETAPPING

(The action of secretly listening to other people’s conversations by connecting a listening device to their telephone.)

LEGAL REGULATION

Spanish Constitution

o Art. 10.2: Interpretation according to the UDHR, international treaties and

agreements.

o Art. 18.3: Right to secrecy of communications.

o Art. 55.2: Suspension of the rights and freedoms.

o Art. 96.1: International treaties and internal order.

o Art. 120.3: Judgment of balance about the juridical assets.

Royal Decree 424/2005, 15 April, on universal service and users’ rights relating

to electronic communications networks and services. Chapter II.

o Art. 83: Object of the legal interception of the communications.

o Art. 85: Obligated subjects and the obligation of collaboration.

o Art. 97: Communications and information related to the interception.

Organic Law 15/1999, of 13 December, of Personal Data Protection.

o Art. 22.1: Police Files.

o Art. 22.2: Treatment and collection of data to police purposes.

o Art. 23.1: Exceptions and limitations of the ARCO rights.

o Art. 24: Other exceptions.

General Law 32/2003, on telecommunications.

o Art. 33: Communications secret.

o Art. 35: Interception of the electronic communications for the

technical services.

Criminal Procedure Law (LECrim):

o Art. 579: Telecommunications intervention.

o Art. 302: Secret actuations.

o Art. 326: Rationality and proportionality of the measure.

Organic Law 2/2002, of 6 May, regulates the judiciary control of the National

Intelligence Center.

Organic Law 4/1988 (May 25th): Introduction of the article 579 LECrim.

Law 25/2007 (October 18th), of conservation of data relating to electronic

communications and public communication networks.

Organic Law 6/1985, of 1st July of the Judicial Power.

o Art. 11: The proofs that haven’t respected the fundamental rights will

not have effect.


Spanish Penal Code:

o Art. 197: Discovery and revelation of secrets.

Order ITC/110/2009 (January 28th): Requirements and necessary technical

specifications for the development of Chapter II of the title V of the Regulation

424/200.

JURISPRUDENCE

Provincial Audience Judgement

SAP Oviedo 60/2009, March 9th.

SAP Àlava 4/2009 June 10th: Objective data and crime.

SAP Sevilla 574/2008 December 17th.

SAP Huelva 273/2008, November 21th: Judicial resolution content.

SAP Almeria 177/2008, Jun 30th: Nullity of the phone taps.

SAP Sevilla 402/2004 Jun 26th.

SAP Alacant 202/2009, March 17th: Constitution guarantees.

SAP Madrid April 1st 2008: Wiretapping nullity.

SAP Barcelona 33/2009 January 12th: Requirements of the interception measure.

SAP Salamanca 68/2008 September 9th: Legitimacy of the telephone taps.

Supreme Court Judgement

STS 2249/1994, December 23th: Complete transcription of the recorded content.

STS 1898/2000, December 12th: Required authorization of the measure.

STS 2228/2001, November 20th.

STS 3/2002, January 14th: Wiretapping constitutionality.

STS 330/2003, March 10th: Illegal connection.

STS 184/2003, October 23rd: Requirement for a new regulation of the

jurisdictional limitation of communications secret right.

STS 1690/2003, December 15th: Illegal connection.

STS 1070/2003, July 22nd: Wiretapping contents.

STS 816/2003 Jun 5th: Measure foundation.

STS 299/2004 September 19th: Motivation in the authorization requirement.

STS 864/2005 Jun 22nd: Judicial resolution content.

STS 1618/2005, December 22nd: Content of the interference measure

authorization.

STS 1597/2005, December 21st: Proportionality.

STS 483/2007 Jun 4th: Interception legitimacy.

STS 793/2007, October 4th: Lack of notification in the judicial resolution.

Constitutional Court Judgement

STC 55/1996: “The scope in which normally and particularly is applicable the

proportionality principle is that of the fundamental rights”.

STC 123/1997 July 1st: Factic motivation of the intervention.

STC 49/1999, April 5th: Reach of the suspicious in the proportionality

judgmental.

STC 166/1999 September 27th.

STC 120/2000, May 16th: Essential principles which have to contain every

judicial authorization of wiretapping.

STC 299/2000 December 11th: Contradictory audition.

STC 14/2001, January 29th: Obligation of remission the original tapes to the

Court.

STC 138/2001, Jun 18th: Proportionality principle. Interception legitimacy.

STC 167/2002, September 18th: Proportionality of the measure.

STC 184/2003, October 23th: Deadline and form of the judicial resolution.

STC 259/2005 October 24th: Judicial resolution of the interception measure.

STC 239/2006, July 17th: Judgment about constitutional legitimacy of an

interception measure of telephone communications.

STEDH5 Jun 15th 1992. Case Ludi: “There are factic data or evidence which

they allow to suppose that somebody try to commit, is committing or he has

committed a major infraction, or where there are “good reasons” or “strong

presumptions”.

Human Rights European Court Judgement

STEDH 842/1997, July 30th: Case Valenzuela. Lacks from Spanish law in the

guarantees of the extension and the telephone communications and the

modalities of power of appreciation of the authorities.

STEDH February 18th 2003. Case Prado Bugallo. Modalities of interception

control of telephone conversations. 579.1st and 2nd LECrim.

DEOXYRIBO NUCLEIC ACID (DNA) DATABASES

LEGAL REGULATION

Spanish Constitution:

o Art. 18.1: The right of personal privacy.

o Art. 104: Forces and Security corps mission.

Organic Law 15/2003, November 25th, modified the Organic Law 10/1995,

November 23th of Penal Code.

o Art. 326: Imprints, vestiges, and material proofs in the commission of

crimes.

Organic Law 10/2007, October 8th , regulating the police database on identifiers

obtained from DNA.

o Art. 3.1: Taking of samples in major infractions.

o Art. 5: Official laboratories.

o Art. 7.1: Use and cession of the data contained in data base.

o Art. 7.2: Treatment of the obtained data.

o Art. 7.3: Data cession of the police data base.

o Art. 8: Security level of police files.

o Art. 9.3: ARCO rights.

Spanish Criminal Procedure Law (LECrim).

o Art. 282: Judicial Police Mission.

o Art. 282.4: No consent of the person affected in the imprints registry.

o Art. 326: Samples obtaining.

o Art. 399: Processed examination.

o Art. 478: Expert report.

o Art. 778.3: Legal authorization.

Agreement 108 of the European Council, January 28th 1981.

o Art. 9: Exceptions and restrictions of the automated files administrated

by the public security protection.

Council Decision 2008/615/JAI of 23th June 2008 on the steeping up of cross-

border cooperation, particularly in combating terrorism and cross-border crime.

Framework Decision 2008/977, November 27th 2008 on the protection of

personal data processed in the framework of police and judicial cooperation in

criminal matters.

o Art. 17: Transmission of personal data among member states.

o Art. 18: ARCO rights.

Prüm treaty:

o Art. 27: Normative area, automated DNA data consult and information

transmission for the threats prevention.

o Art. 39: Registry.

Convention 108 of the Council of Europe for the Protection of Individuals with

regard to Automatic Processing of Personal Data. January 28th 1981.

Additional Protocol to the Convention for the Protection of Individuals with

regard to Automatic Processing of Personal Data, regarding supervisory

authorities and transborder data flows. November 8th 2001.

JURISPRUDENCE

SAP Cuenca 9/2007 May 17th: Judicial intervention through a motivated

resolution.

SAP Vitoria 4/2009, January 13th 2009.

SAP Badajoz 57/2006, April 18th 2006.

SAP Bizkaia 47/2007, May 10th: Consent in the samples taking.

SAP Pontevedra 12/2001, April 26th.

SAN 21/2008 Jun 3th: Competence in samples taking.

SAN 30/2008 May 29th: No violation of fundamental rights.

STS 49/1999, April 5th: Proportionality principle.

STS 968/2006, October 11th.

STS 1553/2009, March 13th: Proportionality.

STS 179/2006 February 14th: Violation of 18.1 CE.

STS 968/2006, October 11th: Judgment of consideration, proportionality

principle and Art. 363.3.

STS 949/2006, October 4th: Guarantees of security in DNA analysis.

STS 1062/2007 November 27th: No requirement of judicial interception as a

consequence of being a sample taking without incisive methods about the body

integrity.

STS 940/2007 November 7th: Violation 363 LECRim.

STS 707/2008, October 30th: Proportionality judgement/consent.

STC 7/1994, January 17th: Necessity and proportionality.

STC 207/1996, December 16th: Implied rights.

STEDH case S. Marper against UK, December 4th 2008: “The DNA of a person

contains personal and privat information from the higher degree”.

ELECTRONIC COMMUNICATIONS AND COMMUNICATIONS PUBLIC NETS

LEGAL REGULATION

Spanish Constitution:

o Art. 18.1: Right to personal privacy.

o Art. 18.3: Right to the secrecy of communications.

Spanish Organic Law Data Protection

o Art. 22.2: Data treatment to police purposes.

Law 25/2007, October 18th of conservation of data related to electronic

communications and communications public networks.

o Art. 3: Registry inscription data.

o Art. 5: Data conservation period.

o Art. 6: Data cession.

o Art. 7: Data cession procedure.

o Art. 7.3: Execution deadline of cession order.

o Additional disposition 3rd: Guarantees and formalities of samples

obtaining.

Law 34/2002 July 11th, on Information Society Services and Electronic

Commerce.

o Art. 12.1: Data retention by networks operators and electronic

communications services.

o Art. 12.3: Data conservation in the framework of a criminal research.

General Law 32/2003 of Telecommunications

o Art. 33: Communications secret.

Organic Law 2/1986, March 13th on Forces and Security Corps.

o Art. 5: Adequacy to the Juridical Ordering.

o Art. 11: Habilitation.

Spanish Criminal Procedure Law

o Art. 283.1: Judicial Police competences.

o Art. 282-298: Judicial police functions.

o Art. 299: Procedural research.

o Art. 579: Communications interception.

Spanish penal Code

o Art. 189, 197, 248.2 and 264.2:  Type of computer infractions.

o Art. 197: Discovery and revelation of secrets via the interception and

engraving of sounds or images.

Royal Decree 769/1987, Jun 19th, on Judicial Police regulation.

Directive 2006/24/CE of the European Parliament and Council of 15 March, on

the conservation of the generated or treated data relating to the provision of

communications services of public access or public communication networks.

JURISPRUDENCE

SAP Badajoz 57/2006 April 18th.

SAP Vitoria 376/2008, December 2nd: Fundamental law interference.

SAP Oviedo 27/2009 February 11th. Presuppositions for the legitimacy measure.

SAP Vitoria 4/2009, January 13th. Proportionality and necessity.

SAP Palència 1/2009, January 29th. Violation of the article 18.3 CE.

SAP Valladolid 55/2009, February 10th.

SAP Oviedo 27/2009 February 11th. Presuppositions for the legitimacy measure.

SAN 271/2005 October 9th: Access control.

SAN (rec 305/2003) April 27th 2005: Security measures violation.

STS 3755/2003 April 17th: Terminals Mobile location data.

STS 739/2008 November 12th: No judicial authorization of P2P program.

STS 1553/2009 March 13th: Measure proportionality.

STS 121/1998: Judicial control.

STS 236/2008 May 9th: The P2P networks data are neither protected for

normative about data protection nor communications secret.

STC 86/1995, Jun 6th: Requirement that the measure must contain.

STC 230/2007, November 5th: Article 18.3 CE violation.

STC 70/2002, April 3th: Article 18.3 CE violation.

STC 119/2002 May 10th 2002: Protection to the Communications secret of the

subscribers numbers in the telephonic communications.

STC 26/2006, January 30th: Vagueness and indetermination of 579 LECrim

article.

STC 184/2003, October 23th.

STC 123/2002 May 20th: Fundamental Law violation.

STC 130/2007, February 19th.

STEDH August 30th 1990. Case McCallum: Definition of the Communications

right.


VIDEO SURVEILLANCE

LEGAL REGULATION

Spanish Constitution:

o Art. 18.1 CE: Honor right, personal and family privacy, and the right to

own image.

o Art. 104.1 CE: The Forces and Security corps, under the dependence

from the Government, will have as a mission to protect the free exercise

of rights and freedoms and guarantee the public safety.

o Art. 149.1.29: State competence on the public safety.

Organic Law 15/1999, of 13 December on the Protection of Personal Data.

o Art. 2.3 e: Processing of data obtained from video cameras by the Forces

and Security Corps.

Organic Law 1/1982, of 5 May, on Civil Protection of the Right to honor,

personal and family privacy.

o Art. 2: Illegitimate interference.

o Art. 7: Illegitimate interferences delimitation.

Royal Decree 1332/1994 June 20th.

o Art. 1.4: Personal data: “Graphic or photographic information”.

Organic Law 4/1997, August 4th, utilization of video cameras by the Forces and

Security Corps in public places.

o Art. 1.1: Object

o Art. 2: Scope

o Art. 3.1: Authorization regime.

o Art. 4: Authorization of the video cameras installation.

o Art. 6.1: Proportionality principle.

o Art. 6.2: Utilization of cameras in “concrete situations”

o Art. 6.3: Consideration conflict among privacy right and law and order

surveillance.

o Art. 6.4: Fix video cameras utilization.

o Art. 6.5: Privacy  right.

o Art. 8: Video recording conservation.

o Art. 9: Obligation to notify the public.

o Art. 9.2: Access and cancellation right.

o Additional 8th Disposition: Video cameras with traffic control purposes.

Organic Law 2/1986, March 13th, Forces and Security Corps.

o Art. 2.3: Scope

o Art. 3.1: Security forces delimitation.

Law 23/1992, July 30th Private Security.

o Art. 1.1: “The contribution for physical or juridical people, private of

surveillance service and people or goods security, which they will have

the consideration of complementary activities and subordinates with

respect to the public safety”.

o Art. 5: Provision of service of private security companies.

o Art. 6: Obligations of the services provision contract.

Royal Decree 596/1999, of 16 April which approves the Regulations of

development and enforcement of the Organic Law 4/1997, August 4th, in which

is regulated the utilization of video cameras for the Forces and Security corps in

public places (in Catalonia: Decree 134/1999 and Order June 26th 2006).

Decree 2364/1994, of 9 December which approves the Regulation of Private

Security.

o Art. 20: Services contract.

o Art. 120: Private security measures.

Royal Decree 769/1993, of 21 May, which approves the Regulation on the

Prevention of violence at sportive events.

o Art. 61: Closed circuit television.

Spanish Penal Code:

o Art. 197: “Discovery and revelation of secrets”

Council of Europe Convention on Data Protection 108 of 1981.

Opinion 4/2007 on the concept of personal data. Article 29 Data Protection

Working Party.

Royal Decree 1720/2007, of 21 December, which approves the Regulation

implementing Organic Law 15/1999, of 13 December, on the Protection of

Personal Data.

o Art. 5.1: Personal Data.

Instruction 1/2009 February 10th. Catalan Data Protection Authority, on the

personal data treatment via cameras with video surveillance purposes.

JURISPRUDENCE

SAN (National Audience Judgement) 1/2007 October 1st: Data processing.

STS 1733/2002, October 14th: Images collection authorization.

STC 207/1996, January 22nd“The proportionality deal with “a common and

constant requirement to the constitutionality of any restrictive fundamental right

measure, among them, that they suppose an interference in the physical integrity

and privacy rights and particularly, on restrictive fundamental rights adopted in

the course of a penal process is determinate for the strict observance of the

proportionality principle”.

STC 37/1998. Case Basque Autonomous Police.

STC 202/1999: Fundamental Rights violation.

STC 119/2001, May 29th: Fundamental right linked to the personality and

implies: “The existence of an own and reserved area towards to the action and

knowledge of the others, necessary, according to the models of our culture, to

keep a minimum quality of the human life”.

STC 98/2000, Case Toja Casino. Proportionality judgment

STC 186/2000. Installation by CCTV company.

STEDH January 28th 2003. Case Peck vs UK.

STEDH 2003. Case Perry vs UK.