The Constitutional Court (“CC”) has set a precedent in a case involving an alleged infringement of the fundamental rights to privacy and secrecy of communications that may be relevant to analyse the lawfulness of the competition authorities’ intervention in dawn-raids. The CC decided an appeal against a judgment of the Supreme Court. The case concerned the location and arrest of the appellant through the contact list of a mobile telephone seized by the police.

The CC determined that the police examining the contact list of a mobile telephone without judicial authorisation does not constitute a breach of the right to secrecy of communications. The police officers limited their involvement to examining the mobile telephone’s contact list. This data in itself cannot be considered as part of a current or future communication. Moreover, the CC clarified that the most important factor in determining if a breach has taken place is the nature of the information accessed, not the type of device where it is stored, nor the fact that it is a mobile telephone.

However, the CC stated that examining the contact list on a mobile telephone could constitute a breach of the right to privacy.

The CC analysed whether the requirements to justify the mentioned intervention were fulfilled: the existence of a constitutionally legitimate purpose, a legal provision allowing the restrictive measure and the proportionality principle. As regards the first requirement, there was a public interest concerning the investigation of a crime. As to the second requirement, there are specific regulations in the Criminal Procedure Law (Ley de Enjuiciamiento Criminal), in the Basic Law of the Security Forces (Ley Orgánica de fuerzas y cuerpos de seguridad) and in the Basic Law on the Protection of Citizens (Ley Orgánica sobre protección de la seguridad ciudadana). In relation to the proportionality principle, the CC believed that the measure adopted by the police officers was suitable, in that it lead to the identification and arrest of the appellant. Furthermore, the measure was necessary as there was not any other less restrictive means to identify those responsible for the crime. Finally, the CC held that it was a measured and balanced action in relation to the seriousness of the offence, since it provides more benefits to the public interest than damages to the appellant’s right to privacy.

The CC concluded that the police action analysed did not breach the right to personal privacy, even though it was carried out without the user’s consent or a judicial authorisation.