Judicial Inquiry Research Instruments: Limiting Rights

Research Instruments in Judicial Inquiries: Measures Limiting Fundamental Rights

For more effective prosecution of crimes, the law governing certain cases allows, under specific conditions, the use of investigative techniques through which the public can make a legitimate intrusion into the sphere of certain fundamental rights. These measures are reserved for judicial inquiry precisely because a judge's intervention ensures compliance with the requirements and limits of the interference. They are means of investigation to be carried out only during the investigation, used to determine the circumstances surrounding the facts. To use any of these means of investigation, a court order is constitutionally required, and there must be reason to believe that it can lead to the verification or discovery of facts or circumstances relevant to the research. The court must provide reasons, and the decision shall take the form of an order. Such measures can be ordered only exceptionally, and if there were other, less costly alternatives regarding the fundamental right in question, those must be chosen. The judicial authority may authorize these measures only after the opening of proceedings.

Intervention of Personal Communications

The intervention may lead to the apprehension of the corpus delicti (the body of the crime) or, in other cases, provide a piece of evidence. Such action naturally leads to interference with the fundamental right to secrecy of communications. However, this right is not absolute; its own constitutional provision expressly allows for its limitation when a court decision authorizes and legitimizes the intrusion. The form of intervention will vary according to the media used. The court order authorizing the intervention must determine with absolute precision the object: the person. Secondly, it must clearly set out the means of communication affected, for example, specifying the phone number. Thirdly, it must specify whether it affects communications received and/or sent.

The Arrest of Correspondence

This consists of the physical apprehension of the support of a message, whatever its medium. This prevents the consignment from coming to the attention of the addressee because if they had had possession of it, the registration of books and papers should be ordered instead. The most recent case law has extended the protective guarantee of secrecy of correspondence to all mail sent through the official postal service or private companies that provide a similar service. Therefore, this protection is provided regardless of whether it involves private letters or packages.