Law 5/1999, Of 13 January, Amending The Law Of Criminal Procedure In The Field Of Improvement Of The Research Action Related To The Illegal Drug Trafficking And Other Activities Ilici...

Original Language Title: Ley Orgánica 5/1999, de 13 de enero, de modificación de la Ley de Enjuiciamiento Criminal en materia de perfeccionamiento de la acción investigadora relacionada con el tráfico ilegal de drogas y otras actividades ilíci...

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JUAN CARLOS I King of Spain to all that the present join together and act.

Know: That the Cortes Generales have approved and I come in to sanction the following law.

EXHIBITION grounds, organized crime has acquired in our time an alarming dimension, its importance, both for the 'modus operandi' with which it acts.

Faced with this new challenge, successive Governments have been putting instruments of all kinds in the hands of those who have the mission to pursue and punish such conduct, even though there are still some that a State can legitimately provide in combating these forms of crime that have not received in our legal system.

Also, the persecution of the phenomena associated with organized crime and its links to the illegal drug trafficking, common cause of concern to all Nations, has been in recent years urgent care and absolute priority, as it comes to demonstrate the development of various international legal instruments. In this line, stands out the approval within the framework of the United Nations of the Convention against illicit traffic in narcotic drugs and psychotropic substances, done at Vienna on 20 December 1988, where calls to the parties of the same, including Spain, to adopt the necessary measures, including legislative and administrative order that in accordance with the fundamental provisions of their respective domestic legal systems, are necessary to address more effectively the various aspects of illicit trafficking in narcotic drugs and psychotropic substances having an international projection.

Reforms which are embodied in this law are based on the inadequacy of traditional research techniques in the fight against this type of organized crime, which usually acts in transnational areas and with an abundance of means conducive to the perpetration of crimes. In this way, are introduced into the legal system special legal measures that allow the members of the Judicial Police participating in the lattice organization, detect offences and reporting on its activities, in order to obtain evidence guilt and proceed to the arrest of the perpetrators. All these changes should be introduced while respecting the end of criminal proceedings which is none other than the discovery of the real truth and the application of the criminal law to the specific case, taking into account that the boundaries of the proposed research techniques are in the system of rights and guarantees which the Constitution recognizes to all accused , since by more abject than the forms of crime which are combat, this does not justify the use of researchers means that might violate constitutional guarantees. Therefore, the pursuit of legal effective means to fight against organized crime must not act a detriment of the full implementation of the principles, rights and constitutional guarantees, and calls for the preservation of the listed principles, rights and guarantees, whenever there is conflict, that it be resolved in favour of the latter, because they constitute the real foundation of our democratic system.

Therefore, this text provides first the regulation of 'controlled deliveries' contained in article 263 bis of the Criminal Procedure Act, included in this organic law 8/1992, of 23 December, modification of the criminal code and the Criminal Procedure Act, and hitherto was exclusively concerned with the crime of drug trafficking to extend also to other forms of crime organized. The extension now operating is in accordance with the obligation imposed on States parties in article 11 of the above-mentioned United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances and the need to combat other forms of organized crime, not related to the drug trade, as effectively as possible.

On the other hand, is added to the law of Criminal Procedure a new article 282 bis, which provides legal empowerment to the figure of the "undercover agent" in the framework of investigations related to "organized crime". In this way, it is possible to grant and the use of a so-called identity to the Judicial police officers, who may be held on the possible further judicial process, which completes the protection regime that provided for the organic law 19/1994 of 23 December, regarding experts and witnesses in criminal cases. Also, the concept of 'organized crime', is anchored to these effects by determining criminal figures comprising. Finally, empower the undercover agent to use, under strict control judicial and fiscal, complementary means of investigation.

The first article.

Amending, in title I of book II of the Criminal Procedure Act article 263 bis, which will have the following wording: "1. the competent judge of instruction and the public prosecutor, as well as the heads of the organic units of the Judicial Police, Central or provincial level, and their senior may authorise the circulation or controlled toxic drug delivery» narcotic or psychotropic, substances as well as of other banned substances. This measure must be agreed by resolution established, in which be determined explicitly, as soon as possible, order authorization or controlled deliveries, as well as the type and quantity of the substance in question. To adopt these measures shall take into account their need for the purposes of research in relation to the importance of the crime and the possibilities of surveillance. The judge who handed down the decision will give copy of the transfer to the Dean Court of its jurisdiction, which shall be kept a record of these decisions.

Circulation may also be authorised or controlled delivery of equipment, materials and substances referred to in that article 371 of the criminal code, of goods and proceeds referred to in article 301 of the code in all the cases provided for in the same, as well as of goods, materials, objects and plant and animal species refer to which the 332 articles 334, 386, 566, 568 and 569, also of the criminal code.

2 mean movement or the technique of controlled delivery to allow that you remittances unlawful or suspicious of toxic drugs, substances psychotropic or other prohibited substances, equipment, materials and substances referred to in the preceding paragraph, substances that has replaced the above mentioned, as well as assets and profit from criminal activities classified in the articles 301 to 304 and 368-373 of the Penal Code running trains on Spanish territory or leaving or entering it without interference obstativa authority or their agents and under its supervision, in order to discover or identify persons involved in the Commission of an offence relating to these drugs, substances, equipment, materials, property and earnings, as well as also providing assistance to foreign authorities to those same ends.

3. the use of controlled delivery will be case-by-case basis and, at the international level, will suit the provisions of international treaties.

The heads of the units organic of the police Judicial central or provincial scope or its senior notify immediately to the public prosecutor's Office about the authorization that had been granted in accordance with paragraph 1 of this article and, if court proceedings open to the competent magistrate.

4. the interception and opening of postal shipments suspected of containing drugs or, where appropriate, subsequent substitution of drugs that had been inside be held respecting at all times the judicial guarantees established in the legal system, except as provided in article 584 of the present law.» Second article.

Added in title III of book II of the Criminal Procedure Act article 282 bis with the following wording: "1. for the purposes referred to in the preceding article and in the case of investigations relating to activities of organized crime, the competent magistrate or the public prosecutor immediately to the judge» , they may authorise officials of the Judicial Police, founded resolution and taking into account their need for the purposes of research, to act under the so-called identity and to acquire and transport objects, effects, and instruments of crime and defer the seizure thereof. The so-called identity will be granted by the Ministry of the Interior for the period of six months, extendable for periods of the same duration, being legitimately authorized to act in everything related to specific research and to participate in the legal and social traffic under such identity.

The resolution by which it is agreed must be given the real name of the agent and the supposed identity which will act in the case.

The resolution will be reserved and must be kept out of the safe performances.

Information that the undercover agent go getting must be placed at the earliest possible knowledge of who authorized the investigation. Also, such information should contribute to the process in its entirety and will be valued in consciousness by the competent judicial organ.

2. the officials of the Judicial police who had acted in an investigation with false identity in accordance with the provisions in paragraph 1, may maintain this identity when they testify in the process that might arise from the facts they had involved, provided so you remember using reasoned judgment, being also of application provided for in the organic law 19/1994 , of 23 December.

Any officer of the Judicial Police may be forced to act as an undercover agent.

3. When can research actions affect fundamental rights, the undercover agent shall request the competent judicial authority authorizations that, in this regard, establish the Constitution and the law, as well as fulfil the other applicable legal provisions.

4 a the effects specified in paragraph 1 of this article, shall be regarded as organized crime Association of three or more people to perform, either permanent or repeated, behaviors that have the purpose to commit one or several of the following crimes: to) crime of abduction of persons referred to in articles 164 to 166 of the Penal Code.

(b) prostitution-related offences provided for in articles 187 to 189 of the Penal Code.

(c) offences against property and against the socio-economic order in articles 237, 243, 244, 248 and 301 of the Penal Code.

(d) offences against the rights of workers referred to in the articles 312 and 313 of the Penal Code.

(e) species of flora or fauna threatened traffic offences set forth in articles 332 and 334 of the criminal code.

(f) crime of trafficking in nuclear and radioactive material referred to in article 345 of the criminal code.

(g) provided for crimes against public health in articles 368-373 of the Penal Code.

(h) offence of counterfeiting under article 386 of the criminal code.

(i) crime of trafficking and of weapons, munitions and explosives deposit provided for in articles 566-568 of the criminal code.

j) terrorist offences referred to in articles 571 to 578 of the Penal Code.

((k) offences against the historical heritage in article 2.1. e) organic law 12/1995 of 12 December, the smuggling crackdown.

5. the undercover agent shall be exempt from criminal liability for those actions that are necessary for the development of the research result, that keep due proportionality with the purpose of the same and do not constitute a provocation to the crime.

To proceed criminally against the same by the actions carried out for the purposes of the investigation, the competent judge to learn the cause must, as soon becomes aware of the action of some the same covert agent, required report concerning such circumstances who has authorized the alleged identity, attention to which that will resolve at its discretion appropriate.» Sole repeal provision.

How many rules of equal or lower rank is contrary to the provisions of this law are repealed.

Sole final provision. Entry into force.

This law shall enter into force the day following its publication in the "Official Gazette".

Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this organic law.

Madrid, 13 January 1999.



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