Under what legal framework does the police infiltrate social movements?

Last month El Salto revealed that a police officer had infiltrated the squatted La Animosa Social Center and environmental groups such as Extinction Rebellion and Futuro Vegetal in recent months.

This is not the first time that social movements have come across infiltrations of this type: Dani, an undercover police officer, was infiltrated for three years in housing groups and anarchists in Barcelona before being discovered by La Directa in January of this year. Before him, Marc, also an undercover agent, got involved in the independence movement. Ramón did it in the Valencian anti-fascist movement. And these are only the most recent cases that have been known.

In none of the related cases, the organizations and social movements into which infiltrated agents were introduced were under judicial investigation for the commission of any crime, much less had they been identified as constituting a criminal organization, despite the fact that the Criminal Procedure Law, in its article 282 bis, indicates that the infiltration of agents can only be carried out in investigations for crimes of criminal organization and under the order of a judge or prosecutor. Specifically, the article establishes the following:

1. For the purposes provided for in the previous article, and where investigations affecting activities related to organised crime are concerned, the competent Examining Magistrate or the Public Prosecution Services, giving immediate account to the Judge, may authorise the Judiciary Police, with a grounded decision and taking into account its necessity for the purposes of the investigation, to act under an assumed identity and to acquire and transport objects, effects and instruments of the crime and defer confiscation of them. The assumed identity will be granted by the Ministry of Internal Affairs for a period of six months, extendable for identical periods, and they will be legitimately entitled to act in all aspects of the specific investigation and to take part in legal and social dealings under such identity.

The decision agreeing this must contain the real name of the agent and the assumed identity under which they will act in the specific case. The decision will be reserved and must be stored away from the proceedings with proper security.

The information received by the undercover agent must be made known to whoever authorised the investigation as soon as possible. Furthermore, such information must be provided to the proceedings in its entirety and will be conscientiously assessed by the competent judicial body.

2. Judiciary Police who may have acted in an investigation under an assumed identity in accordance with the provisions of paragraph 1 may retain that identity when they testify in such proceedings as may arise from the events in which they have intervened, and will always do so when this is agreed by a reasoned judicial decision, with the provisions of Organic Law 19/1994, of 23 December also being applicable. No member of the Judiciary Police may be forced to act as an undercover agent.

3. Where the proceedings in an investigation may affect fundamental rights, the undercover agent must request the competent judicial body for the authorisations established for that purpose in the Constitution and the Law, and also comply with all other applicable legal provisions.

4. For the purposes shown in paragraph 1 of this article, organised crime is considered to be the association of three or more persons to engage, either permanently or repeatedly, in behaviour which has the purpose of committing one or several of the following crimes:

a) Crimes of procurement and illegal trafficking of human organs and their transplant, provided for in article 156 a of the Criminal Code.

b) Crime of abduction of persons provided for in articles 164 to 166 of the Criminal Code.

c) Crime of human trafficking provided for in article 177 a of the Criminal Code.

d) Crimes relating to prostitution provided for in articles 187 to 189 of the Criminal Code.

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

f) Crimes relating to intellectual and industrial property provided for in articles 270 to 277 of the Criminal Code.

g) Crimes against workers’ rights provided for in articles 312 and 313 of the Criminal Code.

h) Crimes against the rights of foreign citizens provided for in article 318 a of the Criminal Code.

i) Crimes of trafficking endangered species of flora or fauna provided for in articles 332 and 334 of the Criminal Code.

j) Crime of trafficking nuclear and radioactive material provided for in article 345 of the Criminal Code.

k) Crimes relating to public health provided for in articles 368 to 373 of the Criminal Code.

l) Crimes of currency forgery, provided for in article 386 of the Criminal Code, and forgery of credit or debit cards or travellers’ cheques, provided for in article 399 a of the Criminal Code.

m) Crime of arms, munitions or explosives trafficking and warehousing provided for in articles 566 to 568 of the Criminal Code.

n) Crimes of terrorism provided for in articles 572 to 578 of the Criminal Code.

o) Crimes against historical heritage provided for in article 2.1.e of Organic Law 12/1995, of 12 December, on repression of smuggling.

5. The undercover agent is exempt from criminal liability for such actions that are a necessary consequence of the evolution of the investigation, as long as they maintain due proportionality with the purpose of it and do not constitute provocation to commit the crime.

In order to initiate criminal proceedings against them for actions carried out for the purposes of the investigation, the Judge competent to hear the case, as soon as they become aware of the action of any undercover agent in it, will request a report relating to such circumstance from whoever authorised the assumed identity, in consideration of which they will resolve as they deem appropriate.

6. The Examining Magistrate may authorise members of the Judiciary Police to act under an assumed identity in communications held on closed communication channels for the purposes of solving any of the crimes referred to in paragraph 4 of this article, or any of the crimes provided for in article 588 b a.

The undercover computer specialist, with specific authorisation to do so, may exchange or send, by themselves, files which are illegal due to their content and analyse the results of the algorithms applied to identify such illegal files.

7. During an investigation carried out using an undercover agent, the competent Judge may authorise images to be obtained and conversations to be recorded which may be held in the meetings foreseen between the agent and the party under investigation, even where these take place inside a residency.

Therefore, there is no legal authorization to infiltrate social movements. It is only possible to infiltrate criminal organizations, but not movements with political ends. In this article published in El Salto, journalist Ter García asks our colleague Daniel Amelang about it. “Organic Law 5/99, which introduces article 282 bis in the Criminal Procedure Law in 1999, states in its explanatory statement that ‘the reforms incorporated in this Law are based on the insufficiency of traditional investigation techniques in the fight against this type of organized crime, which generally acts in transnational spheres and with an abundance of means leading to the perpetration of crimes’, therefore, the generic capture of information on social movements supposes an expansion contrary to the spirit of this reform” Daniel explains. “LeCrim is very clear when it says that an undercover agent will need a specific judicial authorization when he intends to violate a fundamental right, but the court order is reserved, so its control by third parties —such as people who denounce the agent— is very difficult, and in cases in which a fundamental right is not violated or it is not recognized that it has been violated, it is possible that there is not even a judicial order”, he points out. “And if in a trial it is intended to ask the agent or the Police to provide certain information, perhaps they will take advantage of the Official Secrets Law not to provide information, because it is considered confidential,” he adds.

“There is no legal support at the legal level for an agent to infiltrate a social or collective movement that has no open cause, it is a purely prospective investigation,” our friend Erlantz Ibarrondo stresses in the same article. “It has no purpose, unless it is to obtain data on the ideological affiliation of certain people, which is contrary to the Spanish and European legal system,” continues Ibarrondo, who points out that this type of investigation is closely related to what it is known as Criminal Law of the Enemy, by which certain people are persecuted for who they are, not for what they do.

Our colleague Alejandro Gámez reached previously the same conclusion in this article published in Público. “It is very worrying that the State uses the figure of the undercover agent to capture general information from social movements,” he explains. «This abuse of the figure of the undercover agent shows both the criminalization and permanent suspicion of the State on social movements as well as the flight of the State towards police and penal tools, the most serious and dangerous at its disposal, to control and direct at all times. the public debate. Indeed, the undercover agent is not just another penal tool to investigate crimes, it is one that can only be used when the rest of the police investigation means have not been effective. A logical principle of subsidiarity if we value the strong component of deception and subterfuge that it entails and the practical difficulty that exists to control the validity of the evidence that it can contribute to the judicial proceeding in which it has been appointed”.

Red Jurídica is a cooperative of lawyers who practice law from a critical perspective. We offer services in Criminal, Civil, Family, Labor Law, etc.

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