Information Note on the Court’s case-law 50
February 2003
Prado Bugallo v. Spain - 58496/00
Judgment 18.2.2003 [Section IV]
Article 8
Article 8-1
Respect for correspondence
Foreseeability of telephone tapping in the context of a criminal investigation: violation
Facts: Heading an extensive economic complex consisting of a number of tobacco import/export companies, the applicant had a wide network of collaborators in Spain. In connection with a judicial inquiry into drug trafficking, the examining judge, acting at the request of the Ministry of the Interior, gave a number of orders authorising the tapping of the telephone lines of several people suspected of belonging to a cocaine trafficking ring run by the applicant. At the end of the police investigations, the applicant and several of his collaborators were arrested by the police and committed for trial for a number of offences, including drug trafficking and smuggling. The applicant sought to have the evidence obtained by telephone tapping declared null and void. The Court held that the telephone tapping carried out by the police was entirely valid and based its finding that the applicant was guilty of the offences charged in particular on the recordings of intercepted telephone calls. The applicant was sentenced to a term of imprisonment and fined. The Supreme Court upheld the judgment on appeal. Referring to the case-law of the European Court of Human Rights, it held that the interference was justified having regard to the seriousness of the offence of large-scale drug trafficking and lawful. The applicant unsuccessfully brought an amparo appeal.
Law: Article 8 – The safeguards introduced by Organic Law 4/1988 of 25 May 1988 specifying the procedures for controlling the interception of telephone conversations did not satisfy all the requirements laid down by the Court's case-law in order to avoid abuses. The law proved inadequate in that respect, in particular in relation to offences which might give rise to telephone tapping and the fixing of a time-limit for carrying out telephone tapping. The superior courts in Spain had held that the changes brought about by this law were insufficient to afford the guarantees which must be applied to telephone tapping, and had found it necessary to define a whole series of supplementary safeguards. Furthermore, although the 1988 law had introduced some undeniable improvements, major gaps persisted in relation to the time during which the telephone tapping had been carried out in this case. It was true that those shortcomings had largely been remedied by domestic case-law. Nevertheless, even if this change in the case-law could remedy the gaps in the law in a formal sense, it had occurred after the investigating judge's orders that the telephones of the persons participating in the criminal activity directed by the applicant be tapped. Therefore, it could not be taken into account in this case.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant € 7 000 for costs and expenses.
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This summary by the Registry does not bind the Court.
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