1. Module IV. Dynamic and regulations on confident
and methods and means of operational research:
Undercover Agent
Miguel Ángel Botello García, PhD
Project JUST/2011/ISEC/DRUGS/AG/3671

2.  Concept: Special research technique against organized crime involving the
performance of judicial police agent legally authorized for the purpose of obtaining
information from the factual and those responsible
 Regulation: Article 282 bis Criminal Law (Organic Law 5/1.999)
 International Scope:
- Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done
at Vienna on 20 December 1.988
- New York Convention of 2.000
-European Convention on Mutual Assistance in Criminal Matters of 29 May 2.000

3. AUTHORIZING ORGAN
Coronel or Prosecutor, giving reasons collecting background and factual
circumstances
TYPE OF RESEARCH
Only in relation to organized crime.
DURATION
Six months, renewable for equal periods until the end of the investigation
or termination
INTERVENTION OF THE MINISTRY OF INTERIOR
Facilitate the identity and the documents
SUBJECTIVE SCOPE
Officers of the judicial police (members of the security forces and state
functions that hold research functions).
Willfulness.

4. FACULTIES and ACTIVITIES
• Permanent use of fictitious identity and participation in low traffic
with such identity
Realization of acts and financial operations, business, commercial
Constitution of societies, account opening
Opening of locals or establishments to simulate an activity
• Acquisition and transport of objects, effects and instruments of crime
and differ its seizure
• Commission of crimes under the margin of the habilitation
• Recording of conversations
• Entry into dwelling of another member
• Placing of tracking devices or beacons
• Constant dation of accounts /contribution to the process in its entirety

5. REQUIREMENT OF RESPONSABILITY TO THE UNDERCOVER AGENT
• Enforceability of previous report of a person who has authorized the
performance
DECLARATION OF THE UNDERCOVER AGENT
• Dation of account on the face of instruction
•Attendance to the act of the oral trial
• Maintenance of fictitious identity(may)
• Implementation of the Law on Protection of Witnesses and Experts (LO19/94, of
December 23)
• The witness reference

6.  Special consideration of the induced crime
- Jurisprudedence: provocation or incitement to commit the agent criminal
offense for who previously had no such purpose excludes liability of him;
ie, the wilful misconduct , being unpunished the behavior of the induced
- Unlike the case of the investigation that had already decided the commission
of the crime. One can only speak of an provoking agent when the
intervention occurs before the authors have begun preparing the punishable
act

7. Legal and criminal responsibility of the undercover agent
Doctrine of the Spanish Supreme Court
“Induced Crime/ Checked Crime”
Induced Crime in which there is not a sovereign and free desition for commiting
a crime by the accused
In case of the checked crime that decision is free and born spontaneously