La orden de preservación de datos del artículo 588 octies de la Ley de Enjuiciamiento Criminal

Abstract

Article 588 of Criminal Procedure Law has made it possible to provide the Judicial Police and the Public Prosecutor’s Office with an effective tool to ensure the destruction, deletion or anonymisation of data that could be crucial in the context of a specific criminal investigation, the justification and scope of a specific request for authorization to transfer data addressed to the competent judge being pending. However, an excessive dependence on the likely case law made by article 16 of the European Convention on Cybercrime has placed such regulation, in terms of retention periods, of the existence of effective judicial control and the definition of the criminal offences whose investigation could allow the use of this tool, in a very delicate situation with regard to case law of both the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) which imposes a very forced work of exegesis of the normative text in order to try and reconcile its wording with the requirements of the former.