JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the Cortes General have approved and I come to sanction the following Organic Law.

EXPLANATORY STATEMENT

in our time, organized crime has acquired an alarming dimension, both because of its importance, and because of the "modus operandi" with which it acts.

In the face of this new challenge, successive governments have been putting instruments of every order in the hands of those who have the task of pursuing and repressing such conduct, even though there are still some of those who can A state in its fight against those forms of criminality that have not been received in our legal system.

Likewise, the persecution of the phenomena related to organized crime and its link to the illegal drug trade, a common cause of concern for all nations, has been a matter of urgency in recent years. Priority attention and absolute priority, as is demonstrated by the development of various international legal instruments. In this connection, it stresses the approval of the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which was made in Vienna on 20 December 1988, in which the Parties to the Convention are called upon to between them, Spain, to take the necessary measures, including those of a legislative and administrative order, which, in accordance with the fundamental provisions of their respective internal legal systems, are necessary to make in the face of the increased effectiveness of the various aspects of illicit drug trafficking and psychotropic substances having an international projection.

The reforms incorporated in this Law stem from the inadequacy of traditional research techniques in the fight against this type of organized crime, which generally acts in transnational areas and with an abundance of means leading to the perpetration of crimes. In this way, special legal measures are introduced in the legal order to allow the members of the Judicial Police to participate in the organizational framework, to detect the commission of crimes and to report on their activities, in order to to obtain incriminating evidence and to proceed with the arrest of its authors. All these changes must be introduced with due respect for the end of the criminal proceedings, which is no other than the discovery of the real truth and the application of the criminal law to the specific case, always taking into account that the limits of the techniques It is a matter of course, but it is not a matter of course, but it is a matter of course, and I think it is a matter of course for the Commission to be able to take the necessary measures. investigators who may violate constitutional guarantees. Therefore, the search for effective legal means to combat organized crime must not be detrimental to the full validity of the principles, rights and constitutional guarantees, and the preservation of the mentioned principles, rights and guarantees, whenever there is a conflict, that the same will be resolved in favor of the latter, because they constitute the true foundation of our democratic system.

Therefore, in the present text, the regulation of "supervised delivery" contained in Article 263 bis of the Law on Criminal Procedure, included in the Law of the Organic Law 8/1992, of 23 of the In December, the Penal Code and the Criminal Procedure Law were amended, and until now, it was exclusively related to the crime of drug trafficking, in order to extend it to other forms of organized crime. The extension now being operated is in accordance with the obligation imposed on States Parties to Article 11 of the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances and with the the need to combat other forms of organised crime, not related to drug trafficking, as effectively as possible.

On the other hand, a new article 282 bis is added to the Criminal Procedure Law, which provides legal clearance to the "undercover agent" figure in the framework of investigations related to the so-called "covert agent". 'organised crime'. In this way, the granting and use of an alleged identity to judicial police officers, which can be maintained in the eventual judicial process, is made possible, thus completing the protection regime provided for by the Organic Law 19/1994, of 23 December, with respect to experts and witnesses of criminal cases. In addition, the concept of "organised crime" is defined as "organised crime", determining the criminal figures it comprises. Finally, the undercover agent is empowered to use complementary investigative means under strict judicial and fiscal control.

Article first.

It is amended, in Title I of Book II of the Criminal Procedure Act, Article 263 a, which will have the following wording:

" 1. The Judge of the competent Instruction and the Prosecutor's Office, as well as the Heads of the Judicial, Central or Provincial Police Units, and their senior officers may authorize the circulation or supervised delivery of toxic drugs, narcotic drugs or psychotropic substances, as well as other prohibited substances. This measure shall be agreed by a well-founded resolution, in which the subject of authorisation or supervised delivery, as well as the type and quantity of the substance concerned, shall be explicitly determined as soon as possible. In order to adopt these measures, account must be taken of their need for research purposes in relation to the importance of crime and the possibilities of surveillance. The Judge who gives the judgment shall give a copy of the decision to the Court of Justice of its jurisdiction, which shall keep a record of such decisions.

The movement or supervised delivery of equipment, materials and substances referred to in Article 371 of the Criminal Code, the goods and profits referred to in Article 301 of the Treaty may also be authorised. the Code in all cases provided for therein, as well as for the goods, materials, objects and animal and plant species referred to in Articles 332, 334, 386, 566, 568 and 569, also of the Criminal Code.

2. The following shall be understood as a circulation or supervised delivery of the technique of allowing illicit or suspected remittance of toxic drugs, psychotropic substances or other prohibited substances, equipment, materials and substances to which the (a) the substances for which the above mentioned substances have been replaced, as well as the goods and profits from the criminal activities listed in Articles 301 to 304 and 368 to 373 of the Criminal Code, shall be circulated by the Spanish territory or leaving or entering the territory without any obstacle to the authority or its agents; and under its supervision, in order to discover or identify the persons involved in the commission of any crime relating to such drugs, substances, equipment, materials, goods and profits, as well as to provide assistance to foreign authorities in those same ends.

3. The use of supervised delivery will be made on a case by case basis and, at international level, will be in line with the international treaties.

The Chiefs of the Central Judicial Police or provincial police units or their senior officers will immediately give the Prosecutor's Office an account of the authorizations they have granted in accordance with the law. paragraph 1 of this Article and, if open court proceedings exist, to the competent Judge of Instruction.

4. The interception and opening of postal consignments suspected of containing narcotic drugs and, where appropriate, the subsequent substitution of the drugs within their territory shall be carried out with due respect for the judicial guarantees established in the legal order, with the exception of the provisions of Article 584 of this Law. " Article 2.

It is added in Title III of Book II of the Criminal Prosecution Act an article 282 bis with the following wording:

" 1. For the purposes referred to in the previous Article and in the case of investigations affecting the activities of organised crime, the competent Judge of Instruction or the Prosecutor's Office immediately giving the Judge an account, they may authorise officials of the Judicial Police, by means of a resolution founded and taking into account their need for the purposes of the investigation, to act under assumed identity and to acquire and transport the objects, effects and instruments of the crime and to defer the seizure of the same. The alleged identity will be granted by the Ministry of the Interior for the period of six months extendable for periods of equal duration, being legitimately enabled to act in everything related to the concrete investigation and to participate in the legal and social traffic under such an identity.

The resolution to be agreed upon shall record the true name of the agent and the alleged identity with which he or she will act in the particular case.

The resolution will be reserved and must be kept out of the proceedings with due security.

The information that will be obtained by the undercover agent must be made as soon as possible in the knowledge of who authorized the investigation. Such information shall also be provided to the process in its entirety and shall be assessed by the competent judicial body.

2. Officials of the Judicial Police who have acted in an investigation with a false identity in accordance with paragraph 1 may maintain that identity when they testify in the process which may result from the facts in question. The Court of Justice of the European Communities, the Court of Justice of the European Communities, held that the Court of Justice held that the Court of First

No judicial police officer may be forced to act as an undercover agent.

3. Where the investigation is liable to affect fundamental rights, the undercover officer shall request the competent judicial authority to establish the Constitution and the Law as well as to comply with the other provisions of the law. applicable legal provisions.

4. For the purposes referred to in paragraph 1 of this Article, the association of three or more persons shall be regarded as organised crime to carry out, on a permanent or repeated basis, conduct which is intended to commit one or more of the The following crimes:

a) Crime of abduction of persons provided for in Articles 164 to 166 of the Penal Code.

(b) Crimes relating to prostitution provided for in Articles 187 to 189 of the Criminal Code.

c) Crimes against the property and against the socio-economic order provided for in Articles 237, 243, 244, 248 and 301 of the Criminal Code.

d) Crimes against the rights of workers provided for in Articles 312 and 313 of the Criminal Code.

e) Traffic offences of endangered flora or fauna species provided for in Articles 332 and 334 of the Penal Code.

f) Crime of nuclear and radioactive material provided for in Article 345 of the Penal Code.

g) Crimes against public health provided for in Articles 368 to 373 of the Criminal Code.

h) Crime of counterfeit currency provided for in Article 386 of the Penal Code.

i) Crime of trafficking and deposition of arms, ammunition or explosives provided for in Articles 566 to 568 of the Penal Code.

j) Terrorism offences provided for in Articles 571 to 578 of the Criminal Code.

(k) Crimes against the Historical Heritage provided for in Article 2.1.e of the Organic Law 12/1995 of 12 December 1995 on the repression of contraband.

5. The undercover agent shall be exempt from criminal liability for actions which are a necessary consequence of the conduct of the investigation, provided that they are proportionate to the purpose of the investigation and do not constitute a Provocation to crime.

To be able to proceed criminally against the same by the actions carried out for the purposes of the investigation, the Judge competent to know the cause must, as soon as he has knowledge of the performance of some undercover agent in the same, require a report relating to the circumstances of the person who has authorised the alleged identity, in respect of which he or she shall decide what is appropriate. " Single derogation provision.

As many rules of equal or lower rank are repealed, they oppose the provisions of this Law.

Single end disposition. Entry into force.

This Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore, I command all Spaniards, individuals and authorities, to keep and keep this Organic Law.

Madrid, 13 January 1999.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ