C.133 - Eavesdropping case

I. In the account of the proven facts, a distinction must be drawn between the actions of Maribel on the one hand, Valentín and Lucio on the other, and finally, Amanda on the other.

II. On the basis of these facts, which cannot be altered, the following can be stated.

II.1 . There is nothing to doubt the existence of human conduct on the part of any of the participants in these acts.
II.2 . We focus on the criminal nature of their conduct and the different liability of each (authorship and participation).
Among the crimes of finding and disclosure of secrets, one has been foreseen which consists of creating a status risk to the privacy of others by means of the tapping of communications (art. 197.1), subject to various aggravating circumstances (art. 197.3-7). The typically relevant risk for this purpose lies in the danger to the privacy of staff if the communications (e.g. by telephone) are captured by a person without the consent of any of those taking part in the conversation. This is a mere activity subject consisting of the simple use of listening or recording devices, without the need for a separate result of the conduct. If we assume that Lucio, under Valentín's orders, installs devices to capture communications (the facts mention: "material installation of the interception and recording devices", "continuous and attentive monitoring by both of them of result and effectiveness of the interception", "obtaining, in effect, knowledge of various conversations held by the defendant's husband, which were recorded"), we must conclude that this creates the risk that the rule prohibiting the interception of telephone conversations is intended to prevent. The subject goal of the crime of finding of secrets is therefore fulfilled (modality of intercepting conversations: art. 197.1, second alternative).
As for the subjective subject , a similar conclusion can be reached if we take into account data which prevents any error, ignorance or doubt about the installation of these recording devices: Lucio and Valentín act at the request of another person; they act as persons with a specialised dedication to subject (capturing telecommunications with technical devices); they not only install them, but also ascertain their functioning. In view of these facts, and of the knowledge that any adult person has of these matters, there is no doubt that they acted with knowledge of the risk to a person's privacy. They are therefore acting with malice aforethought. It is irrelevant not to know the identity of the person whose telecommunications are recorded, or the motives of the principal (Maribel), or the exact content of what she was talking about on the phone, as the subject goal is fulfilled by intercepting the communications. The essay of the subject (art. 197.1) also requires that the agent moves "to discover secrets or violate the privacy of another", which would be fulfilled here as this is what they receive as an assignment from Maribel. All of this leads us to affirm that the subjective subject of the crime of finding of secrets is fulfilled (modality of capturing conversations: art. 197.1, second alternative).

Art. 197.1 PC: "Anyone who, in order to discover the secrets or violate the privacy of another, without their consent, ... intercepts their telecommunications or uses technical devices for listening, transmission, recording or reproduction of sound or image, or of any other communication signal, shall be punished...".

II.3. The intervention of the four subjects is diverse: Valentín and Lucio carry out the executive actions of subject (placing listening devices...), while Maribel commissions them to carry out this action, and Amanda merely transports the tapes already recorded. For the first two, co-perpetration of the offence can be affirmed, insofar as they carry out executive acts with a division of roles in agreement : Lucio, the "execution and material installation of the devices", "following Valentín's indications and instructions", and "continuous monitoring by both of them". But it does not seem that Maribel is a co-author: in fact, even if she orders the installation and is the main interested party in intercepting communications, this does not make her a co-author. The mutual agreement does not make an intervener a co-perpetrator if the intervener has no role in the joint plan (functional distribution of tasks). As I see it, this is what is missing in her: she has no role in the plan. But that does not make his intervention any less relevant, as he is the one who commissions the adoption of means of eavesdropping. I consider that she is not an instigator of this crime, if it can be understood that Valentín and Lucio are habitually involved in these activities, because then she would not make them decide to commit the crime, but rather to commit one more of the crimes to which they are accustomed due to their dedication (even if it were an inducement, it could be included by specialization program in the necessary cooperation, which is indeed the case). In fact, their intervention can be considered as necessary cooperation, insofar as they order the installation and designate the victim. If something else were to be stated in the Facts (for example, that she set up the entrance in the centre of work, that she took part in the choice of the specific telephones...), then she could be a co-perpetrator of the same crime, but in view of the account that we know of, it is preferable to consider her actions as necessary co-operation. Amanda's actions, on the other hand, do not seem to us to be as relevant as Maribel's, and could be conceptualised as mere complicity. This is because she only transported the tapes containing the recordings to financial aid . This action is carried out during the interception of conversations, which does not cease, and in no way seems to determine the design and configuration of the facts. Moreover, it is perfectly substitutable. Therefore, I understand that its partnership will at most constitute complicity, also known as non-necessary cooperation.
II.4 . It is not possible to justify the conduct, as the state of necessity requires the crisis to be real (and here it is doubtful that it actually exists); even if it did exist, one can doubt the proportionality of the harm caused (it would have to be significantly less, and we are dealing with an intrusion into privacy) in order to avoid an evil (which is not unlawful under criminal law).

In the STS 20 June 2003, from which these facts are taken, it can be read: "It has been declared by this conference room that the accomplice is no more or less than an effective and conscious assistant to the plans and acts of the material executor, the inducer or the essential cooperator who contributes to the production of the punitive phenomenon through the previous or simultaneous employment of means leading to the realisation of the purpose that animates them, and in which he participates by lending his voluntary partnership for the success of the criminal business in which all are interested. It is, however, an accidental participation of a secondary nature".

II.5. There is no data to cast doubt on the guilt of any of the participants, nor on the punishability of their conduct.

III. We therefore conclude by affirming that Valentín and Lucio are co-perpetrators of the crime of finding of secrets, in which Maribel is a necessary co-operator and Amanda an accomplice.

Cf. also C.111, C.121 and C.131.

Participation takes three forms: induction, necessary cooperation y cooperation not required (or complicity). These forms involve an extension of the offence to cases that would otherwise go unpunished as atypical, since the typical verb describes the action "dominated" by the perpetrator or perpetrators. There are other cases in which the legislator anticipates the relevant moment of criminality to the phase prior to the crime itself. These are the so-called "punishable preparatory acts", in which the subject begins before the execution, by means of a series of preparatory conducts: conspiracy, proposition and provocation. Together, they form a series of typifications that strengthen the criminal rules.

We have already looked at the forms of perpetration and participation. We must now turn to the punishable preparatory acts. Let us look at C.134. It remains for us to deal with the subsequent types.