II. Surveillance policy
The violation of intimacy and the interception and recording of communications are considered criminal offenses under the Penal Code.1 Also, the Criminal Procedure Code2 authorizes a judge to order the interception and seizure of communications addressed to a subject under criminal investigation, as well as the wiretapping of communications, regardless of the technical means required. However, the authorization for tapping and seizure can only be granted as an exemption when they are required during the investigation. All judicial orders authorizing the interception of communications must be based on the law and demonstrate with strong evidence ("basado en pruebas conducentes") the need for using such means. Failure to do so will make the evidence obtained inadmissible.
Regarding the collection of evidence,3 the Penal Code4 expressly states that in order to ensure constitutional guarantees,5 no evidence obtained in violation of the provisions of the Code of Criminal Procedure may be opposed in a trial to the other party to support the results of the prosecutor's criminal investigation.
According to the U.S. State Department‚Äôs Report on Human Rights Practices, there were credible allegations in 2006 that some government officials occasionally spied on individuals and monitored communications for partisan or personal reasons. On May 26, 2006, government officials raided the home of Colonel Heriberto Galeano, former commander of the Presidential Escort Regiment and former commander of the First Infantry Division, as part of an investigation into his involvement in illegal telephone tapping operations from his home. The prosecutor claimed most of Galeano's communications equipment had been removed prior to the raid, indicating that he had been tipped off about the pending raid.6
- 1. Article 143 of the Penal Code punishes the violation of intimacy. Articles 144, 145 and 146 regulate the interception and recording of private communications. Article 144 punishes with two years of jail or a fine anyone who, without authorization and by technical means, listens, records, or makes accessible to third parties someone's word not intended to the listener or the public. Article 145 punishes with a fine anyone who stores and makes accessible to third parties confidential information only intended to him or herself. Article 146 punishes with one year of imprisonment or a fine anyone who, without the sender's or addresSee's consent, opens a letter or, by technical means, becomes aware of the content of a letter not intended to his or her knowledge.
- 2. Criminal Procedure Code, Articles 198, 199, 200.
- 3. Gonzalez Macchi Jose Ignacio, "Preguntas B√°sicas obre el Nuevo C√≥digo Procesal Penal" (Intercontinental Editora, 2000).
- 4. Penal Code, Article 174.
- 5. National Constitution, Article 36, supra.
- 6. http://www.state.gov/g/drl/rls/hrrpt/2006/78901.htm