AEPD (Spain) - PS/00148/2019

AEPD - PS/00148/2019
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 6 GDPR Article 7 GDPR Article 9 GDPR Article 197(1) Spanish Criminal Code Article 197(5) Spanish Criminal Code Article 31(1) Spanish Public Sector Act Article 4 Former Spanish Data Protection Act Article 7 Old Spanish Data Protection Act Article 25 Spanish Constitution Article 22(1)(g) Spanish Public Procedural Act
Type:	Complaint
Outcome:	Rejected
Started:
Decided:
Published:	21.04.2021
Fine:	None
Parties:	Grupo Feminista de Ponent
National Case Number/Name:	PS/00148/2019
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Spanish
Original Source:	AEPD decision (in ES)
Initial Contributor:	n/a

The Spanish DPA concluded that, on the basis of the non bis in idem principle, it could not issue a sanction for an act that had already been sanctioned by a criminal court as a criminal offence.

English Summary

Facts

On July 7th 2016, a 18-year-old girl was raped by 5 men (known as "La Manada") during the traditional San Fermín festivity in Pamplona, Spain. Besides, during such act the perpetrators recorded and photographed the victim with their mobile phones. Subsequently, a criminal procedure was launched.

The AEPD received two complaints on different facts related to this case: 1) personal data had been published in different Spanish forums, and 2) personal data regarding the proceeding had also been accidentally disclosed by the Court. Therefore, the AEPD launched an investigation on the whole case and related facts, part of which decided in different proceedings.

The proceeding dealing with the facts related to the rape itself was suspended until the criminal procedure was concluded, according to Article 22(1)(g) of the Spanish Public Procedural Act. On February 8th 2021, this procedure came to an end, and thus the AEPD resumed their own proceeding on the matter.

The perpetrators were sentenced in the criminal proceeding to three years and three months of prison, and to a fine, for a criminal offence against privacy included in Article 197(1) of the Spanish Criminal Code, with the aggravating circumstance from Article 197(5) of being data related to the sex life of the victim.

Dispute

Can the AEPD sanction for the perpetrators for an act that has already been sanctioned by a criminal court as a criminal offence?

Holding

In this case, the AEPD found an infringement of Article 7(3) of the former Spanish Data Protection Act (LOPD) for the processing of special categories of personal data, such as data referring to the victim's sex life, without consent.

They argued that there could not have been consent in such a context, and that there was obviously no free, unequivocal, specific and informed manifestation of will.

However, according to Article 31(1) of the Spanish Public Sector Act and to Article 25 of the Spanish Constitution, and the interpretation of it made by the Spanish Constitutional Court, the non bis in idem principle forbids from sanctioning a behaviour that has already been sanctioned, both criminally or administratively, when the subject, the facts and the legal grounds are the same.

Therefore, the AEPD reasons that they cannot sanction the perpetrators for these facts, given that there is, between both criminal and administrative proceedings:

1. identity of subject: the perpetrators are the same natural persons
2. identity of facts: i.e. the facts (recording videos and photographing the victim during the commission of a crime of a sexual nature, without her express or tacit consent) are identical, and
3. identity of legal grounds: since both rules protect the same legal right, as the legal assets affected (personal data belonging to the most intimate redoubt of the victim's privacy: her sex life) are the same.

The AEPD hence concluded that, on the basis of the non bis in idem principle, they could not sanction the perpetrators of the offence, as they had already been sanctioned in a criminal proceeding for an criminal offence against privacy.

The AEPD therefore decided to close and archive this proceeding.

Comment

The AEPD re-published this proceeding (without deleting the previous one, apparently with minor mistakes fixed) here: PS/00165/2019 https://www.aepd.es/es/documento/ps-00165-2019.pdf

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English Machine Translation of the Decision

The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.

                                                                                1/14








     Procedure No.: PS / 00148/2019

                RESOLUTION OF SANCTIONING PROCEDURE


       Of the procedure instructed by the Spanish Agency for Data Protection and
based on the following

                                  BACKGROUND


FIRST: On May 4, 2018, it was received at the Spanish Agency for Pro-
Data protection a claim submitted by the Grupo Feminista de Ponent, indicating-
the dissemination of possible personal data of the victim of "La Manada" by
of members of internet forums, specifically Forocoches and Burbuja.info. the same
day, a new complaint was received against the Government of Navarra for the dissemination in

The media of the Judgment against “La Manada”, although they have been anonymous
given the victim's data; but since the CSV code of the Judgment and
It is also accessible, through this code you can see the personal data.
sonals contained in the summary that works in the Administration of Justice of Nava-
rra. On May 5, 2018, a claim was received against the Government of Nava-

rra, identical to the previous one.


SECOND: In view of the facts denounced, by the Inspection Services of
this Agency, numerous actions have been carried out, aimed at verifying the facts
those denounced and that the information was disappearing from the forums and media
Communication.

       The actions carried out in relation to the dissemination of the aforementioned Judgment
to the facts that are the subject of the claim, they have been examined with the result if-
next:


    1. The acting Deputy Inspector agreed to judgment no. 38/2018 in procedure
Ordinary Summary 426/2016, dated March 20, 2018, of the Second Section
of the Provincial Court of Navarra, published in the digital newspaper El Plural (has
downloaded copy of said Judgment), verifying that in the proven facts of
it is collected the following:

       Page 17:

       "...

       During the development of the events A.A.A., he recorded six vi-
       deos with a total duration of 59 seconds and took two photos; B.B.B., recorded
       in the same way a video of with a duration of 39 seconds.

       ... "
       Page 19:

       "...

       At 6:50 a.m. C.C.C., he sent WhatsApp to two chats from his mobile phone:
       to “the Pack”, to which all the defendants belong except D.D.D., in addition
       more than other people and to "Enjoy SFC." In these WhatsApp he wrote “fo-
       calling us all five "" all that counts is little "" last whore on a trip "

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       "There is video" in the referral to the chat "La Manada" and "fucking the five of us together,
       What a fucking gap, it was ATC Madrid, ha ha ”., in the one sent to“ Enjoy
       SFC. ”.



       Page 19:

       "...
       Prior to the events, “the complainant” did not present any trans-

       personality lathe or a history of psychological destabilization, for
       On the contrary, he had an adequate adaptation in the different areas (personal,
       educational, social and family); as a consequence of them, he suffers
       post-traumatic stress lathe. As of September 2017, it is re-
       continuously receiving psychological treatment administered by the Central
       Comprehensive Care for Women Victims of Sexual Assault in the Community

       city of Madrid (CIMASCAM); assessment of psychological sequelae is not possible
       cas as it is necessary that a time of about two years elapse since the
       production of the facts. "


       Page 58:

       "...

       It is proven that two of those processed with their mobile phone recorded videos
       and one, obtained photos during the development of the events, without the consent
       of "the complainant", and without being told by them, that they were capturing

       images"


       Page 113 and following:



       "...
       On the crime against privacy foreseen and punished in Art. 197 1 and 5 of the
       Penal Code, which accuses the Public Prosecutor's Office, the private prosecution and the

       popular accusations to all the defendants ... we declare the free acquittal
       tion of the crime against privacy of which the defendants are accused.


       2. Judgment No. 38/2018, dated March 20, 2018, of Section Se-

Court of the Provincial Court of Navarra was appealed against the Tribute
nal Superior of Justice of Navarra, who issued Sentence No. 8/2018, dated November 30,
November 2018. In this Judgment, the facts
proven of the above, except for the date on which treatment began at CIMASCAM the
whistleblower. This Judgment indicates the following:

       Page 8:

       "...

       The Public Prosecutor considers Messrs. A.A.A. and B.B.B. perpetrators of a crime
       against privacy, that the private accusation and popular accusations
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       they consider the five defendants extensible. It is requested subsidiarily by
       the private accusation and the popular accusation of the Pamplona City Council,
       the nullity of the sentence exclusively as soon as the accused are acquitted

       two of the crime against privacy. "


       Page 51:

       "...

       It is argued that, although there is an acquittal in the first instance,
       The proven facts (folio 17) relate the material making of the recordings
       nes (six videos and two photos by Mr. A.A.A., one recording by Mr. B.B.B.).
       The complainant was unaware that she was being recorded and therefore no
       he was able to give his consent. The lack of express complaint is not a
       obstacle to the accusation, since their willingness to report is obvious, therefore

       that this procedural requirement must be understood to have been fulfilled. And although the
       crime is not materially identified in the indictment, said
       order does expressly refer to the recording of Mr. A.A.A., and in its foundations
       of law infers the knowledge and participation of the other partners,
       who repeatedly address the camera. "



       Page 61:

       "...
       FAILURE: 3rd. Declare the partial nullity of judgment 38/2018 issued on 20

       March 2018 by the Second Section of the Provincial Court of Navarra,
       in particular regarding the acquittal of those accused of the crime against intimacy.
       imputed to them, and rejecting the procedural obstacles to their prosecution
       assessment appreciated in the judgment under appeal, reinstate the judicial proceedings
       them at the time that said sentence was handed down, once the
       present resolution, so that that Section of the Provincial Court, with the

       same composition, issue a new sentence referring exclusively to the crime
       against the privacy that is the object of the accusation, judging in the background the extremes
       in fact and in law inherent in it. "


THIRD: According to the documentation in the file, it is accredited
that the facts on which the complaints relate, and that constitute the budget
factual evidence of an alleged infringement of the data protection regulations of the

personal, occurred on “July 7, 2016”. It is the date that A.A.A. recorded the video
of the facts committed in which the victim appears, and took two photographs of the
herself.


FOURTH: On April 24, 2019, the Director of the Spanish Agency for

Data Protection agreed to initiate a sanctioning procedure for the complained party, by the
alleged violation of Article 7.3 of Organic Law 15/1999, of December 13, of
Protection of Personal Data (hereinafter LOPD), typified in the
Article 44.4.b) of the LOPD (LES).


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FIFTH: On May 6, 2019, proceedings were suspended
in accordance with the provisions of article 22.1. g) of the LPACAP, in view of the
facts contained in the complaint, and upon appreciating sufficient evidence that it could

There is an identity between the subjects and the alleged administrative offense that motivated the
initiation of the sanctioning procedure by the Spanish Agency for the Protection of
Data, and the subjects and the subject matter of the Preliminary Proceedings initiated.

SIXTH: On February 8, 2021, the Spanish Agency for Pro-
Data protection, written by the Second Section of the Provincial Court of Navarra

reporting the Judgment, which had become final by judgment of the Supreme Court
premo, related to the disciplinary proceedings initiated against A.A.A., and B.-
B.B ..

SEVENTH: The Judgment made final by a Supreme Court Judgment declares

as Proven Facts the following:

       “… SECOND: During the commission of the events detailed in section
"B" of the Antecedent of Proven Facts of our Judgment 38/2018, inside
of the cubicle that there are described two of the processed with their respective telephones
mobile phones recorded videos and one obtained two photos. Specifically, A.A.A., recorded with his

mobile phone: The video (1) NUM000, between the minutes 3:11:51 and 3:11:57; The video (2)
NUM001, between minutes 3:12:06 and 3:12:28; The video (3) NUM002, between the minutes
3:12:54 and 3:13:04; The video (4) NUM003, between minutes 3:13:34 and 3:13:48; The video
(6) NUM004, between minutes 3:20:55 and 3: 20:57 and Video (7) NUM005, between minutes
Numbers 3:21:01 and 3: 21:03. He also took at 3:26:03, photos one and two.

       B.B.B., recorded with his mobile phone the video (5) NUM006, between the minutes
3:15:32 and 3: 16:11.

       THIRD: The video recordings and the taking of the two mentioned photos, are
carried out by A.A.A., and B.B.B., with the aim of capturing and recording the acts
of a sexual nature, carried out on the "complainant", described in section "B"

of the Antecedent of Proven Facts of our Judgment 38/2018, without this
expressly or tacitly give their assent to the recordings to be made.
nes, nor for the photos to be taken.



EIGHTH: The Legal Basis of the Judgment, provided by the Hearing Pro-
vincial de Navarra, point out the following
       "FIRST: The facts declared proven are constitutive of a crime

against privacy foreseen and punished in article 197.1 of the Penal Code, in the subtitle
aggravated by section 5 of said precept.

       In the stated precept of the Penal Code, the basic type is configured, destined
to the protection of privacy in a criminal court, as a specific legal asset and
distinguished, recognized and guaranteed in terms of its effectiveness, as a fundamental right
mental inherent to the personality, in article 18.1 of the Constitution, which is injured
na, through the performance of typical behaviors, which involve intrusion not

authorized in the most intimate redoubt of the person, which is beyond privacy
and connects with the deepest layers of the personality -vid in this sense
SSTS 2ª 666/2006 of June 19; 358/2007 of April 30; 123/2009 of February 3 and
116/2019 of March 5-.
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        Among the various commissive modalities that make up the objective type defined
given in said section 1. of article 197: a) seizure of papers, letters, mentions
e-mail messages or any other documents or personal effects, and

b) the interception of telecommunications or the use of technical devices of es-
tables, transmission, recording or reproduction of sound or image, or any
another communication signal; We appreciate in the present case, the one specified in the use of
use of mobile phones by A.A.A., and B.B.B., to make recordings
videos and the taking of the two photos, with the detail that we indicated in the
do "B" of the Antecedent of Proven Facts of our Judgment 38/2018.

        The facts, classified as constituting a crime of sexual assault,
configured by bullying - violation -, are incompatible with the provision of

consent, by the "complainant", expressly or implicitly, to carry out
of the video recordings, nor to the taking of the photos; it results from all evidence
that whoever is being attacked in this way cannot consent to such acts of interference in
your privacy.

        The criminal type, in its objective facet, was consummated, by the mere fact of taking
of the videos and the capture of the two photos, by using their respective
mobile phones by A.A.A., and B.B.B., having acknowledged, both proce-
after being reproduced in the oral proceedings of the videos reviewed and the two

photos taken, authorship of recordings and capture of photos.
        The subjective type requires fraud, in addition to a subjective element of the unjust,

consisting of the purpose of "discovering the secrets or violating the privacy of another",
that: "It requires knowledge and willingness to use the commissive mode deployed with
the purpose described in the precept, to violate the privacy of the taxpayer, which is not
dependent on further behavior. (...) "- STS 2 1045/2011 of October 14
bre- and as stated in STS 2ª 367/2018 of July 23 -is-: "... constituted by the
typical conduct that must be malicious, since incrimination is not expressly included

reckless action, will require in accordance with article 12 of the legal text, which must be carried out
carried out with the purpose of discovering secrets or violating privacy, since the diction
teral of the precept uses the preposition <> "., pointing out in the same sense the STS
2nd 116/2019 of March 5, which: "... requires a trend element that is the end
ability to discover secrets or violate the privacy of another, (...) ".

        In the specific circumstances of the case we are prosecuting, we appreciate that the
video recordings and the taking of the two mentioned photos were made by A.A.A., and

B.B.B., with the aim of capturing and recording acts of a sexual nature,
made on the "complainant", described in section "B" of the Antecedent of He-
Proven chos of our Judgment 38/2018, thus violating the scope
more private and reserved of her life.

        We appreciate the commission of the aggravated subtype, provided for in section 5 of the
Article 197 of the Penal Code, which postulates all the accusations, since it is evident
that the videos recorded and the photos taken affect personal data,
belonging to the most intimate redoubt of privacy, of the "whistleblower", as it is,

among other assumptions contemplated in the precept, everything related to sexual life,
reflecting acts of a sexual nature, performed on her without her consent.

        SECOND: AUTHORSHIP.
        As we have just reasoned, the defendants A.A.A., and B.B.B., are each
one of them, responsible as author, in accordance with the first paragraph of article 28

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of the Penal Code, of a crime against privacy foreseen and punished in article
197.1 of the Penal Code, with the specific aggravation of section 5 of said precep-
to; for having personally and voluntarily carried out the facts themselves

that make it up.
        In this area, we do not consider substantiated, the allegations made by
said defendants, to interest a pronouncement of free acquittal.

        Specifically, on the part of A.A.A., it is argued that although it is true that it verified the
video recordings and took two photographs with his mobile phone of specific scenes

of the sexual relationship maintained within the portal, at no time did it spread
those images. He claims that he never intended to disseminate them, and maintains that the
reviews and photographs reviewed, were made and taken with the full knowledge
of the "complainant", since they were made explicitly, in an obvious way. In order to
add that, during the course of the events, none of the persons present,
expressed opposition to the recording of the videos, or to the capture of the images.

nes.
        To dismiss the argument outlined, we refer to the above

reasoned, the criminal type, in its objective facet, was consummated by the mere fact of the
taking of the videos and the capture of the two photos; the diffusion of the images gives rise
the aggravated subtype provided for in section 3. of article 197 of the Code, which is not
subject to prosecution in this case.

        We emphasize that, for the reasons stated above, it can be affirmed with
emphatically that the "complainant" did not give her express or tacit consent.
appointment, for the taking of the images or the capture of the photos

        It is irrelevant that the other defendants did not express any objection to the
tion of the video recordings or the taking of the photos, since the legal right
do, it is the privacy of the "complainant", and for this purpose, it is innocuous, that the prosecution

two would not have expressed objection to capturing their images in the way described.
ta.

        On the part of B.B.B., it is recognized that he recorded some images of the relationships
tions kept on the portal, but what he intended was to record his friends, the faces
and their gestures, when realizing that in the recording appears the "denounce-
ciant ", he proceeded to what he believed to be the erasure of the images, thinking about
every moment that recording had erased it, to emphasize that in no way
At one point it was his intention to violate the right to honor, privacy and protection.

pia image, nor undermine its dignity.
        Nor can we accept this defense claim.

        In the first place, the explanation of the content and scope of the recorded video.
do, does not correspond to what is registered in it, since it collected with

clarity images of the "complainant", in the aforementioned context.
        As for the attempt to erase the images, we remember, the above
argued, about the way, in which the consummation of the crime against

the privacy of the accused, specifically by reason of the use of his or her
mobile phone to record the video (6) NUM004, and likewise, we refer to the previous
Dente Foundation, regarding the appreciation of the subjective element of the type, in the
prosecuted conduct of this defendant.

        (….)
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        FOURTH: In the commission by A.A.A., and B.B.B., of a crime against privacy
provided for and punished in article 197.1 of the Penal Code, in the aggravated subtype of
section 5 of said precept, there are no modifying circumstances of the respon-

criminal savvy.


        FIFTH: INDIVIDUALIZATION OF PENALTIES

        We address below the motivation for the individualization of penalties,
function that we carry out, with observance of the principle of proportionality of the sentence,
within the legal parameters, which requires, to the extent that the penalty set is alleviated
the legal minimum, an explanation of the reason for the penalty that is imposed, in order to
thus fulfill the requirements of motivation of the judicial decisions ex Art. 120.3 of the

Constitution.
        In this context, we must first consider the gravity of the guilt-

bility of the author expressing the circumstances that we take into account to specify
a greater or lesser reprehensibility of the facts. And this gravity must be translated
given in the amount of penalty that we ultimately set, within the penal framework established
do in the Law for the specific crime or crimes for which the sentence is established - vid
for all STS.2ª 57/2018 of February 1-.

        In the present case we are faced with a crime in which there are no cir-
mitigating or aggravating circumstances, so rule 6 of the
art. 66.1 of the Penal Code, which allows the application of the penalty established by law in the

tension deemed adequate "in view of the personal circumstances of the
incidental and to the greater or lesser severity of the fact ".

        Given that we appreciate the commission of the aggravated subtype of the department
do 5 of article 197, of the Penal Code, the punitive arc covers the prison sentence of
two years six months and one day to four years, as well as a fine of 18 months
and one day to 24 months.

        Taking into account the intrinsic gravity of the events, which do not affect the
specifically to the privacy of the "whistleblower", at the core especially protected
of their sexual life, but the violation of their privacy occurs in the context of
sexual assault report already explained; taking into account the limitations of the principle

accusatory, we consider adequate and adjusted to the expressed elements of weighting
tion, the imposition of the penalty of three years and three months in prison, requested by the
private prosecution and popular accusations, which is at the maximum limit of
the lower half of the custodial sentence susceptible to imposition.

        Using the same valuation parameter, we consider justified, the imposition of
penalty of 21 months of fine, with a daily quota of nine euros, request-
given by popular accusations, since it also represents the maximum limit of the

lower half of the pecuniary penalty.
        Without, with respect to the latter, it is possible to declare personal responsibility
nal subsidiary for the case of non-payment, in application of paragraph 3 of article 53 of the

Penal Code.
        Indeed, in accordance with a consolidated jurisprudential doctrine - vid. by all-

das STS 2ª 283/1997 of March 6 -, initiated in the Judgment of December 19, 1985
the prohibition contained in paragraph 3 of article 91 of the ACP, should be extended to
all those substitute arrests derived from fines, even if they were for crimes
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sanctioned with lower penalties, provided that any of them or the penological sum
of those appreciated in the sentence exceed the limit, then indicated, of 6 years.
Having been convicted in this case, both defendants, as before

said, in Sentence 344/2019 of July 4, issued by the Criminal Chamber of the Tribute
Supreme Court, as responsible as perpetrators of a continuing crime of
violation of articles 178 and 179 CP, with the specific aggravations of art.
180.1. 1st and 2nd, among others to the penalty of 15 years in prison. And likewise A.A.A., has
been convicted in said Judgment as responsible for the author of a crime of robbery
with intimidation of art. 237 and 242.1 CP, to the penalty of 2 years in prison ...

       FAILURE

       A.- WE MUST CONDEMN and DO CONDEMN A.A.A., and B.B.B., as res-
liable as perpetrators of a crime against privacy planned and punished
in article 197.1 of the Penal Code, with the specific aggravation of section 5 of
said precept, without the concurrence of modifying circumstances of personal responsibility

nal, TO EACH ONE OF THEM, to the penalties of THREE YEARS and THREE MONTHS of PRI-
ZON, as well as the penalty of TWENTY-ONE MONTHS FINE with a daily quota of
nine euros. With the accessories of suspension of employment or public office during the
time of the sentence and special disqualification for the exercise of the right to vote
liabilities during the stated period ...



In view of all the actions, by the Spanish Agency for Data Protection
In this proceeding, the following are considered proven facts:


                                       FACTS


FIRST: On July 7, 2016, during the commission of the crime of abuse se-
xual, for which he has been convicted, A.A.A., recorded with his mobile phone 6 videos in
those who captured the victim; likewise, he took two photographs.

SECOND: The crime victim did not consent to the recording and taking of
Photographs.


THIRD: The Supreme Court has declared the final judgment of the Audience
Provincial company of Navarra by which it declares proven by the following facts:


       "SECOND: During the commission of the events detailed in section" B "
of the Antecedent of Proven Facts of our Judgment 38/2018, within the
cubicle that describes two of those processed with their respective mobile phones.
viles recorded videos and one, obtained two photos. Specifically, A.A.A., recorded with his telephone
mobile phone: The video (1) NUM000, between the minutes 3:11:51 and 3:11:57; The video (2)

NUM001, between minutes 3:12:06 and 3:12:28; The video (3) NUM002, between the minutes
3:12:54 and 3:13:04; The video (4) NUM003, between minutes 3:13:34 and 3:13:48; The video
(6) NUM004, between minutes 3:20:55 and 3: 20:57 and Video (7) NUM005, between minutes
Numbers 3:21:01 and 3: 21:03. He also took at 3:26:03, photos one and two.

       B.B.B., recorded with his mobile phone the video (5) NUM006, between the minutes
3:15:32 and 3: 16:11.

       THIRD: The video recordings and the taking of the two mentioned photos, are
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carried out by A.A.A., and B.B.B., with the aim of capturing and recording the acts
of a sexual nature, carried out on the "complainant", described in section "B"
of the Antecedent of Proven Facts of our Judgment 38/2018, without this

expressly or tacitly give their assent to the recordings to be made.
nes, nor for the photos to be taken. "
.

                             FOUNDATIONS OF LAW




                                              I



        By virtue of the powers that article 58.2 of the RGPD recognizes to each authority
control, and as established in arts. 47 and 48.1 of the LOPDGDD, the Direc-
tora of the Spanish Agency for Data Protection is competent to resolve this
process.


                                             II

        The denounced events occurred before May 25, 2018, date of
effective application of Regulation 2016/679, of the European Parliament and of the Council,

of 04/27/2016, regarding the protection of natural persons with regard to the
processing of your personal data and the free circulation of these data.

        Thus, they are subject to the provisions of Organic Law 15/1999,
Protection of Personal Data (hereinafter LOPD) and its Regulations
development agreement approved by Royal Decree 1720/2007 (RLOPD), in accordance with the detail

ll next.

        The defendant is charged with committing an offense for violation of the
Article 7.3 of the LOPD, which states that "The personal data that make
reference to racial origin, health and sexual life can only be collected,

treated and assigned when, for reasons of general interest, so provided by law or the
affected expressly consents ”, an offense classified as very serious in article
44.4.b) of said rule, which considers as such "Treating or transferring the data of the
personnel referred to in sections 2, 3 and 5 of article 7 of this Law except in
the cases in which it authorizes it or violates the prohibition contained in the

paragraph 4 of article 7 "
        In general, article 7 of Organic Law 15/1999, of 13 December
December, Protection of Personal Data establishes the regime

specifically protector designed by the legislator for personal data
that provide information on the most intimate spheres of the individual, to which
label under the common name of "Specially protected data". For the
various categories of these, the aforementioned precept establishes specific measures for their
protection.

        The requirement in article 7.3 of the LOPD for the express consent of the
affected for the treatment of the data that is collected in that section does not carry

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coupled with the obligation that it must be in writing. It fits, in
Consequently, admit the possibility that the expression of consent
express is not in writing. However, this possibility must be related

with the elements that make up the definition of consent contained in the article
3. h) of the LOPD; that is to say, that it is a manifestation of free will, unequivocal,
specific and informed. Of them, this last point is particularly relevant.
- Let it be informed - because without it it will be difficult for others to attend.
unequivocal and specific.

       In short, the possibility of admitting an express consent that does not appear
in writing for the treatment of these data must be subordinated to
prove that it is a manifestation of free, unequivocal and specific will that is

provides prior knowledge of specific information among which
The specific and explicit purpose of the treatment of
that the personal data of the affected party are the object. Logically, the concurrence of
the exposed extremes must be verified in each specific case.

       The processing of data without the consent of those affected constitutes a limit
to the fundamental right to data protection. This right, in the words of the
Constitutional Court in its Judgment of November 30, 2000, “consists of a
power of disposition and control over personal data that empowers the person

to decide which of these data you provide to a third party, be it the State or a
particular, or which may this third party collect, and which also allows the individual
know who owns this personal data and for what purpose, being able to oppose this
possession or use. These powers of disposition and control over personal data,
that constitute part of the content of the fundamental right to data protection

are legally specified in the power to consent to the collection, obtaining and
access to personal data, its subsequent storage and treatment, as well as
its use or possible uses, by a third party, be it the state or an individual (...) ”(F.J. 7 first
paragraph).

       They are therefore characteristic elements of the fundamental right to the protection of
personal data the rights of the affected party to consent to the collection and use of their
personal data and knowing about them.

       For all of which, it always corresponds to the person responsible for the treatment
check that you have the consent of the affected person when you carry out any treatment
with the personal data of the latter, especially when they affect data

especially sensitive that require the existence of the express consent of
the affected.
       In the present assumption, A.A.A. processed especially sensitive data from the

victim, related to his sexual life, of the victim when taking videos and photographs without
have your consent.


                                           III



       Article 31.1 of Law 40/2015, on the Legal Regime of the Public Sector
(RJSP) which establishes: “The acts that have been criminal or
administratively, in cases where the identity of the subject, fact and
basis"

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       The non bis in idem principle is a constitutionalized and inclusive principle
indirectly in article 25 of our Constitution. It constitutes a demonstration
of the principle of legality and is related to the effect of res judicata.

       The non bis in idem principle is a principle that guarantees the rights that
prohibits the duplication of sanctions, that is, it prevents the same act from being
sanctioned twice when there is identity of subject, fact and legal basis.
Therefore, it prevents a person from being punished twice for the same acts,

for example, in administrative and criminal jurisdiction.
        Although it is not a principle explicitly included in our
Constitution of 1978, from the first moments of life of the Magna Carta, the

The doctrine of the Constitutional Court enshrined the formulation of the principle. Specific,
in its judgment 21/1981 of January 30, in which it declared the validity of the same in the
field of criminal law, proclaiming that it was a principle
constitutionalized by understanding that it was implicit in the principle of legality
contained in article 25 of the Constitution, which prevents a simultaneous classification
of the same conduct, but with different sanctioning effects.

       This principle requires the concurrence of two requirements for its application.

       On the one hand, a triple identity of subject, fact and legal basis.

       On the other hand, the absence of a special subjection relationship between the subject
offender and the Public Administration in relation to the offending act, since
On the contrary, if this special relationship exists, a compatibility could be justified
administrative and criminal sanctions.


       Traditionally, the principle can be analyzed from two perspectives: one
of a material or substantive nature, according to which it is prevented from imposing on a subject a
double punishment for the same fact and foundation (prohibition of multiple punishment) and,

another, procedural, through which it is prohibited to submit to more than one process to
the same subject for the same facts and grounds, after a final judicial decision,
Whether conviction or not, is the negative effect of res judicata (prohibition of judging
multiple ment)

       The interpretive work carried out by the Constitutional Court has been significant
not only to provide constitutional support at the outset, but it has also
contributed to its dogmatic construction. Said Court has indicated that the non bis in
idem is implicit in various constitutional provisions. It has also

held that it is an essential principle of any democratic order, which
supposes that no one can be tried and / or sanctioned twice for the same act,
constituting a double restriction for the sentencing, on the one hand, one of character
procedural and, on the other, of a material or substantive nature. In addition, it has specified that
for their concurrence, a coincidence of subjects, facts and fundamentals will be necessary.
to.

       Regarding its constitutional basis, the Constitutional Court indicates that
“[…] It derives from personal dignity and respect for the essential rights that
nan of human nature, a quality that is universally recognized. His trans-

Thus, gression constitutes an outrage of the foundations of the institutionality, as well as of
the guarantees of a rational and fair procedure and investigation, enshrined in
the chapter on equal protection of the law in the exercise of rights.

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        Regarding the constitutional provisions that support the non bis in
idem, the Court indicates that it would be implicit in the principles of legality and classification
given that they establish the limits that must be observed by the ad-

ministerial in the exercise of ius puniendi. Likewise, it would be strictly
linked to the principle of proportionality, inasmuch as the establishment and
rational application of sanctioning measures, proscribing their duplication.

        In short, the principle has broad constitutional recognition,
although with an implicit and indirect character elaborated from the interpretation of
various provisions contained in our Fundamental Charter and in the international treaties
ternationals that consecrate it. In this way, the requirement imposed by
the Constitutional Court in order that it is one of those principles constituting

regulations of the criminal order extrapolated to the administrative sanctioning field,
        As for its foundation, it would be closely linked to the principles
of legality and typicity, prohibiting someone from being sentenced twice for

the same fact and legal basis. It is a principle that seeks to limit the ius
puniendi of the State, even constituting, for some, a general principle
of Law (applicable to various areas) of an essential nature, which seeks to protect the
human dignity. In addition, the legal system must give each one what they
proportionally corresponds to it, so that a multiplicity of procedures and

sanctions would affect the idea of "justice" pursued by law. In this way,
It is about a principle that, both for the criminal and administrative sanctioning sphere,
presents the same content and characteristics, having an application as a general rule
neral in the latter legal system.

        When there is a subject identity: if it is a natural person there is no
greater complexities since it is required that it be the same natural person (
nothing or acquitted); regardless of the form (individual or joint) and the title of
guilt wielded against her (fraud, guilt, breach of a duty of care,

among others).
        Regarding the objective Identity, factual or factual: the configuration matters

effective or practical action or omission likely to be pigeonholed into a
typical legal encryption. Indeed, not every act or omission will constitute an illegal act,
only those that import an affection to interests and legal assets of special importance.
importance for the Law. The possibility that the same event may give rise to
different infractions with different procedures, the authority empowered to resolve the

specific case should pay special attention to the relationship between said
facts and legal assets that are sought to protect, from which it may determine
whether an impairment actually occurs at the beginning and, where appropriate, at the beginning
of proportionality.

Finally: identity of punitive basis. In simple terms, this identity seeks
It is necessary to determine whether the concurrent norms protect the same legal asset or not. In ge-
In general, the norms do not establish in a categorical way the legal rights that
tegen, for which it will be necessary to verify if there is indeed a double

protection. Therefore, it will be again the judge or the Administration who will have
to seek, in the respective precepts, the legal good that is intended to be protected,
such that, if the affected assets are heterogeneous, there will be a diversity of foundations
ment, while if they are homogeneous, in their general statements, it will not proceed
double punishment even if the violated norms are different. For the rest, the anti-Jewish

ridiculousness of an illicit could be totally or partially absorbed in the respective penalty
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or sanction in those cases in which there is a certain concurrence of legal interests,
despite the fact that their protection in both provisions are not identically analogous.


                                             IV

        In the supposed object of this sanctioning procedure, it was initiated by the

treatment of sexual life data, carried out by A.A.A., which could involve the seriousness of
videotaping and taking pictures of the victim while he was a victim of a crime.
to, without your consent, as established in article 7.3 of the LOPD
(rule in force at the time of the events).


        As stated in the third proven fact, the Supreme Court ratified
ca sentence A.A.A. by recording the videos and taking pictures of the victim.
cheating during the commission of a crime of a sexual nature, without counting on his
neither express nor tacit consent.

        In the Fundamentals of Law of the Criminal Sentence referenced in the previous

The precedent of this resolution is condemned for the commission of the crime contemplated in the
Article 197, paragraphs 1 and 5 of the Penal Code, stating: “We appreciate the commission
of the aggravated subtype, provided for in section 5 of article 197 of the Penal Code, which
postulate all the accusations, since it is evident that the recorded videos and the photos
taken, affect personal data, belonging to the most intimate redoubt

of privacy, of the "complainant", as it is, among other assumptions contemplated
in the precept, everything related to sexual life, reflecting acts of a sexual nature,
made on her without her consent. "

        Consequently, an identity is produced in the responsible subject on the road
criminal and administrative: A.A.A .; in the imputed facts: recording of videos and taking
photographs of the victim; and in the legal bases: affectation of personal data
of the most intimate redoubt of the victim's privacy: his secret life.
xual. Therefore, the file of this sanctioning procedure proceeds.


Therefore, in accordance with the applicable legislation


The Director of the Spanish Data Protection Agency RESOLVES:

FIRST: ARCHIVE the sanctioning proceeding against A.A.A., having
been convicted in criminal proceedings for the same facts and legal basis.


SECOND: NOTIFY this resolution to A.A.A.

In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once it has been notified to the interested parties.


Against this resolution, which ends the administrative procedure in accordance with art. 48.6 of the
LOPDGDD, and in accordance with the provisions of article 123 of the LPACAP, the inte-
Residents may file, optionally, an appeal for reconsideration before the Director
of the Spanish Agency for Data Protection within a month from
the day after notification of this resolution or directly contentious appeal

administrative before the Contentious-Administrative Chamber of the National Court,
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in accordance with the provisions of article 25 and section 5 of the additional provision
Fourth nal of Law 29/1998, of July 13, regulating the Contentious Jurisdiction-
administrative, within a period of two months from the day following the notification
tion of this act, as provided in article 46.1 of the aforementioned Law.


Finally, it is pointed out that in accordance with the provisions of art. 90.3 a) of the LPACAP,
may provisionally suspend the final resolution through administrative channels if the interested party
do manifests its intention to file a contentious-administrative appeal. Of being

In this case, the interested party must formally communicate this fact in writing
addressed to the Spanish Agency for Data Protection, presenting it through the Re-
Electronic registry of the Agency [https://sedeagpd.gob.es/sede-electronica-web/], or to
through any of the other records provided for in art. 16.4 of the aforementioned Law

39/2015, of October 1. You must also forward the documentation to the Agency
that certifies the effective filing of the contentious-administrative appeal. If the
Agency was not aware of the filing of the contentious-administrative appeal
trative within two months from the day following notification of this

resolution, would terminate the precautionary suspension.


                                                                                       938-131120
Mar Spain Martí
Director of the Spanish Agency for Data Protection





































C / Jorge Juan, 6 www.aepd.es
28001 - Madrid sedeagpd.gob.es