Immunity from prosecution of criminal investigators who accept a delivery of narcotics or psychotropic substances, when acting in pursuit of their enquiries – undercover agent
Violent or organised crime
RULING Nº 578/98
14 of October of 1998
Criminal proceedings are governed by the principle of freedom of evidence, in that any source or method may be used in order to establish the facts, but also in that the law does not stipulate any particular method for obtaining evidence of any given facts.
Although the criminal justice system has an ethical and legal duty to ascertain the facts, this is subject to a number of restrictions based on respect for the right to individual moral and physical integrity - laid down in Article 25 of the Constitution and expanded upon in Articles 32.8 and 34.4 of the Constitution (safeguards in criminal proceedings, nullity of evidence obtained by torture, force, violation of the physical or moral integrity of the individual, wrongful interference in private life in the home, correspondence or telecommunications). Evidence will therefore be dismissed where the means by which it was obtained or produced is contrary to principles whose importance outweighs its value, that is, where the use of certain methods constitutes a violation of privacy and breaches elementary rules of fairness such that it must be prohibited on the very ethical grounds that require the facts to be ascertained.
The question concerned the constitutionality of a provision contained in the rules governing traffic in, and consumption of, narcotics and psychotropic substances. According to the provision at issue, police officers who acquire, possess, transport or deliver such narcotics or products for the purpose of an investigation are not criminally liable. Undercover agents must draw up a report and place it on the case-file within 24 hours.
In the instant case, the constitutional question did not concern the admissibility of evidence obtained by an undercover agent or the impunity of his actions, but whether or not a specific preliminary investigation had been undertaken.
The Court found that the provision was constitutional, since the constitutional legitimacy of the undercover agent’s actions does not depend on the commencement or conduct of an investigation, but on the fact that a police officer must not instigate or provoke an offence and must confine his/her role to getting on familiar terms with the offender with a view to closer surveillance and gathering evidence or proof of an offence. Nonetheless, the actions of undercover agents must be authorised in advance or ratified subsequently by the competent judicial authority.
With regard to telephone tapping, see judgment 407/97.