Articles
2021in Diário de Notícias Wiretapping and the police

1. As we know, the fight against the type of crime that affects people's daily lives is largely investigated by the Public Security Police and the National Republican Guard, particularly with regard to crimes of theft, robbery and drug trafficking (known as street trafficking).

Regardless of other, equally valid reasons, these two criminal police agencies are best placed to combat this type of crime, fundamentally because of their proximity to the neighbourhoods where the suspects of these crimes move. Preventing these criminal police agencies from using wiretaps would be like taking away their greatest weapon in the fight against crime. In fact, due to the advances in the techniques used by criminals, an effective investigation would be unthinkable and unfeasible today without the support of telephone tapping. I would go so far as to say that the use of this means of proof (in the broad sense) will always be the principle of the Judicial Police's fight against major crime, since both the GNR and the PSP, through their investigations, must pass on valuable information to the PJ in order to get to the big crime.

It is true that wiretapping violates citizens' fundamental rights. However, the possibility of the GNR and/or PSP making use of this evidence mechanism in no way interferes with the rigour and compliance with the requirements of wiretapping. These (the authorisation of a tap, who can be tapped, for how long and the control of the content of a tap) belong exclusively to the judge. In fact, my professional experience tells me that the GNR and PSP are very careful when it comes to police monitoring of a wiretap.

2. From a scientific point of view, the changes to the legal-procedural regime of telephone tapping introduced in 2007 deserve several criticisms.
Firstly, and most importantly, there is a fundamental issue. For some years now, criminal procedure has been calling for a reform of codified procedural law to cover hidden means of investigation, such as wiretapping, undercover actions, video surveillance, hidden microphones, detailed invoicing and cellular location.

Another criticism, no less important, concerns the clarification of the requirements for authorising a telephone tap. The legislator has left many doubts in the air, I would say that he has been incapable of moulding adequate mechanisms into the legal regime for wiretapping to prevent this instrument from becoming, in most major criminal investigation cases, the most common means of evidence and of obtaining evidence, which is contrary to all the principles underlying criminal procedure.

The innocent citizen has plenty of reasons to feel unprotected by the changes to covert means of criminal investigation.

3. Although it's easy to come out and say that there has been illegal wiretapping (without judicial authorisation), the truth is that of the thousands of cases that have passed through my hands, I have not found any sustained sign of this imputation.
I accept and recognise the possibility that at a political and business level there may be illegal wiretaps for reasons inherent to these activities.

Within a criminal investigation, I don't see the need for illegal wiretapping (I repeat, without authorisation from a judge) because, unfortunately, under the law and according to judicial practice, it is all too easy to obtain a wiretap from the judge. I would go so far as to say that it is easier for the criminal police to obtain judicial authorisation for a telephone tap than it is to carry out an illegal tap.

Now, if we approach the issue from a broader point of view (compliance with wiretapping requirements), in my opinion, criminal investigation processes are full of illegal wiretaps.

Article by: Tiago Melo Alves