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11 February 2021 Does the law look at the world? The start of an investigation

This article is the result of yesterday's discussion, which problematised the legality of starting a criminal investigation when knowledge of the commission of a crime comes from prohibited evidence.

We know that there is no consensus on this - far from it - but that's why we're going to dare to put forward a possible interpretation of the current procedural-penal framework.

The permanent tension between the defence of fundamental rights and the state's duty to pursue criminals leads us to try to determine the implications for the distant effect of prohibitions on the evaluation of evidence from the perspective of their practical-legal relevance.

 Criminal police agencies that receive a report of a crime have a duty to initiate certain procedures that can lead to the opening of an enquiry by the Public Prosecutor's Office. The problem arises when the report of a crime is based on prohibited means of obtaining evidence.

It is at the moment of knowledge of the existence of a crime that the rules on the contamination of evidence apply. In this case, would criminal law fulfil its role in protecting victims and defending citizens' fundamental rights?

Let's take an example where, through illegitimate access to data on a computer system owned by a citizen, photographs are taken that prove that this individual caused the death of another. The photographs are then publicised and the whole community believes that a crime of murder has taken place. At first glance, it seems to us that, in the light of the principles, there is nothing to stop an investigation being launched and an enquiry being opened, at least against strangers.

The controversial question is whether the effect-at-a-distance regime applies in a so-called 'pre-investigation' phase, in which the criminal police body has carried out a series of steps, within the limits of the law, to ascertain whether we are in the presence of a crime.

It would be difficult to understand why, at this stage, police officers would be bound by legal reasoning, in this case the application of the principles deriving from the provisions of Article 122 of the PPC.

Otherwise, the obstacles to opening an enquiry would often seem insurmountable when the police are confronted with indirect and/or anonymous knowledge, such as the personal convictions of witnesses or public voices, even if they are credible (they can be!).

It's worth saying that it's in the context of the criminal investigation that the distance effect takes on its full projection in terms of the doctrine of objective imputation, dictating the end of the protection of the norm, hypothetical investigation processes and alternative lawful behaviour.

It is at this procedural stage that the prosecutor has to consider which means of proof the investigation can use, so as not to fall into the trap of contaminating the evidence. The evidentiary game really begins at this procedural moment.

We can already see that no intrusive means of proof - such as wiretaps and/or searches - can be authorised by the court on the basis of evidence from the aforementioned computer system, nor on evidence derived from it.

Thus, in my opinion, the state is not prevented from pursuing criminals, as long as it respects the fundamental rights of the citizen.

Article by: Carlos Melo Alves