The right to secrecy of communications, enshrined in the constitutions of the European countries and in International Conventions, is subject to multiple analysis by the judges, both when adopting an intervention of telephone communications, personal communications in vehicles and when addressing the right of arrested people and inmates to communicate with their families and lawyers.
During investigations it is necessary for the judge to do a thorough weighting between the need for the interception of communication, the purpose of it, its suitability to the investigation and the fundamental right of the defendant. In the same way, the judge must proceed to order the search of information contained in electronic devices and computers.
Through this article we intend to give a general view of the interaction of this right with the judicial investigation and the different points of friction that may arise. In the same way, an analysis is made of the most recent European jurisprudence on the subject and an approach to the new mechanisms of investigation beyond the borders of each country of the European Union, through the novel instrument of criminal cooperation, the European Investigation Order.