Acceptance or non-acceptance of the invalidity of telephone intercepts when the court upholds the nullity of the evidence because a formal legal requirement has not been met
Weighing of interests
Rights of the defence and to a fair trial
Rules of evidence
RULING Nº 407/97
21 of May of 1997
In a general way, telephone taps raise the particularly problematic dilemma of the weight which should be given to identifying and punishing offences on one hand and protecting individual rights on the other. Comparative law demonstrates that neither legislation nor legal theory or case law have succeeded so far in setting out general principles which would make it possible to address and resolve such issues in a legal framework. As a general rule, since there is little legislation in this area, theory and case law play a greater role than usual in the assessment of measures concerning telephone tapping. The constitutional principle that the rights of citizens should be interfered with as little as possible lends weight to the argument that judges, who are required to monitor directly and closely activities relating to taps should have direct power to act.
It is because telephone taps represent a particularly serious threat that the law has established all possible safeguards for their use. It follows that they are only admissible under very stringent substantive and formal conditions which ensure an appropriate balance between, on the one hand, the sacrifices and dangers entailed in telephone tapping and, on the other hand, the higher interest of punishing crime. The rules governing telephone tapping therefore have to be interpreted restrictively: since the constitutional principle concerned prohibits interference in telecommunications, where such interference is permitted the principle of proportionality has to be observed by guaranteeing that the restriction of the fundamental right due to the telephone tap is reduced to the minimum strictly necessary to satisfy the protection of the constitutional interest in identifying a specific offence and punishing its perpetrator.
According to Article 34.1 of the Constitution, an "individual's home and the privacy of his or her correspondence and other means of private communication are inviolable", while Article 34.4 of the Constitution establishes that any "interference by a public authority with correspondence or telecommunications is prohibited, except in the cases laid down by the law relating to criminal procedure". The other relevant constitutional rules are Article 32 of the Constitution (Guarantees in Criminal Proceedings), whose paragraph 4 provides that a "judge shall have jurisdiction throughout the preliminary investigation" and paragraph 6 which includes among the cases where evidence is of no effect, any evidence obtained by "wrongful interference with private life, the home, correspondence or telecommunications".
Four Articles of the Code of Criminal Procedure (Articles 187-190) establish the exceptional conditions governing telephone taps, whereby they may be authorised and carried out under judicial supervision, as well as a "catalogue" listing the type of offences eligible for such authorisation. Under this system, telephone tapping is exclusively restricted to offences the nature of which made this means of obtaining evidence a particularly suitable form of investigation, or which, because of the seriousness of the interests at stake, justify the use of a measure usually regarded as representing a great potential danger for society.
In the present case, the question of unconstitutionality concerned the provision of the Code of Criminal Procedure requiring that a telephone tap should be recorded in writing and that immediate notification should be sent to the judge who had ordered or authorised the operation, together with the relevant transcript, cassette recording or any element of a similar nature. The purpose of the appeal was to determine the constitutionality of the judgement (considered non-restrictive) of the word "immediately" in respect not of telephone taps themselves but of their transcription.
Nevertheless, the Constitutional Court held that this rule was unconstitutional if it was interpreted to mean that it was not necessary for the report of the interception and recording of telephone conversations or communications to be immediately drafted and sent to the judge, so that first the latter could decide, in good time, whether to add these elements to the case file or to destroy the information gathered, in whole or in part, and so that second, the judge could have time to decide whether the decision ordering the telephone tap should be upheld or modified before a new report of the same kind was added to the case file.
Accordingly, the Court considered first that, on this point, the interpretative criterion used should be the one which imposed the least possible restriction on the fundamental rights affected by a telephone tap and, second, that the judge's action should be seen as a guarantee that this restriction was kept within strict and acceptable limits and, moreover, would form an integral part of the telephone tapping operation. The Court therefore considered that the word "immediately" not only applies to the moment when the transcriptions are completed, but also and most importantly implies that the judge who ordered the tapping should be directly associated with and in control of the operation.
One judge gave a dissenting opinion against this judgement.