Articles
15 April 2021in Expresso The phone tap stripped me bare inside

After several months in the silence of four walls, "Zé do povo" asked his lawyer again if his phones had been tapped. As is my duty, I gave him an account of all the dialogues that took place during the investigation. Surprised, he asked why they had also tapped the phones of his wife, his family, his friend, his neighbour... "But Doctor, they have nothing to do with this, they haven't even been charged!"

The truth is that the wiretaps swept through that family and with them the secrets became common knowledge.

The commission of a crime is often understood and sometimes even accepted, if not a source of pride, by the family. The revelations of family secrets through phone taps are always misunderstood. The family always sympathises with the offender, but never accepts the disclosure of their privacy.

The wiretapping of "Zé do povo's" family revealed much more than the fact that one of its members had committed a crime: it revealed the mismatched loves, and the others too, the deepest part of the family unit, for better or for worse.

It's hard for the average citizen to imagine how much a phone tap invades the private and intimate life of the person being tapped and, above all, the position of fragility in which it places them in the face of all those who have learnt about it, who, more often than not, intervene more than they realise.

My experience of representing defendants in hundreds of cases using this means of obtaining evidence tells me that the person being wiretapped feels like an open book in the deepest dimension of their being. Telephone tapping often affects the citizen's privacy/intimacy more effectively than discovering the crime.

The extreme sensitivity surrounding this means of obtaining evidence has led the legislator to demand a set of very strict requirements, both in terms of authorisation and control of the recorded conversations. Failure to comply with any of these requirements results in the prohibition of this means of proof. This means that conversations that are recorded and considered null and void, no matter how relevant they may be in terms of the criminal liability of their author, cannot be taken into account: it's as if they didn't exist.

It should be noted that if these conversations are declared null and void under the law, they cannot be used for other purposes, such as political, social or other purposes, because it would be a nonsense, perverting the objective behind them, for the law to allow the invasion of citizens' privacy in order to discover crimes, and in the end they would be used, for example, for political attacks. Their use for other purposes would also be illegal in the light of the court decision that authorised them, since one of the requirements for authorising a telephone tap is the existence of a qualified suspicion of a (catalogue) crime, and not the suspicion of anything else.

I remember one of the many cases I had in hand, in which the defendant was listened to for several months, twenty-four hours a day. As soon as he learnt about the case and the existence of the wiretaps, his first concern was to know what was public. He told me, "Doctor, I even made love on the phone!". When I showed him the recorded dialogues in the case file, I saw his worried emotion: "Finding out that I committed the crime is the least of it, now with these wiretaps they've stripped me bare inside. I no longer have anything of my own, or a family!".

Note: the discussion now taking place about the requests to publicise our Prime Minister's conversations is apropos. It's nothing more than political intrigue!

It's necessary to get down to the soil that is ploughed every day and see the fractures that wiretapping, when elevated to the main means of evidence in an investigation, causes within the family of "Zé do povo"!