Parameters for the admissibility of telephone taps and recordings of images and voices
RULING Nº 4/06
3 of January of 2006
Article 34.4 of the Constitution permits the public authorities to interfere with telecommunications, albeit as an exceptional measure, but solely in connection with criminal proceedings and in cases laid down by law (although it imposes no express requirement for a judicial decision). Since interception and recording of telephone conversations constitute a restriction of a fundamental right, this restriction must be confined to what is strictly necessary to safeguard other rights or interests protected by the Constitution, without diminishing the scope or extent of the essential substance of the constitutional precepts.
According to the Constitutional Court’s established precedents, whether interference with telephone communications is permissible depends not only on the existence of a prior judicial authorisation but also on the placing of the operation under judicial supervision. This supervision must be “close” and “monitor the content” of conversations with the dual objective of:
i.ending as soon as possible any telephone tapping which proves unjustified or pointless; and
ii.submitting to prior judicial “assessment” the evidence to be adduced at the trial obtained by this means. However, the stringent criterion adopted does not mean that all telephone tapping operations must be physically carried out by a judge, a position which would correspond to a “maximalist interpretation” and which the Court did not endorse.
The rules governing telephone tapping have generated a number of doubts and questions. At the level of the Constitutional Court’s case-law these doubts and questions have focused almost exclusively on the duration of judicial supervision of the conduct of the operation, whereas in legal writings and judicial practice they have also concerned the conditions under which authorisation was given for an operation from the standpoints of the suitability of the “catalogue” of offences, clear determination of the persons liable to have their conversations tapped or the lack of a legal limit on the duration of telephone tapping. With particular regard to the conduct of the operation, the nature of exchanges between the police authorities, the public prosecutor and the judge is not defined, and there are differences of opinion as to the content of the report (or reports) to be produced. In addition, attention has been drawn to the drawback of immediately destroying recordings which the judge has deemed irrelevant, as it would then become entirely impossible to use passages which the prosecution or the defence may consider important.
Article 34 of the Constitution provides that an individual’s home and the privacy of his or her correspondence and other means of private communication shall be inviolable and prohibits any interference by the public authorities with correspondence, telecommunications or other means of communication, except in cases laid down by law in connection with criminal procedure (the phrase “and other means of communication” was added under the constitutional reform of 1997 to take account of modern means of remote communication which do not correspond to the traditional concepts of correspondence of telecommunications). It follows from this wording that interfering with communications is admissible solely in criminal proceedings and as laid down by law. However, this does not provide, at least not expressly or directly, that the interference is possible only where it complies with a judicial decision, as is nonetheless the case when entering a person’s home against their will, which can take place only “by order of the competent judicial authority and in the cases and according to the forms laid down by law.”
Any finding of unconstitutionality with regard to the impugned interpretations of the rules, all of which concern the conditions of judicial supervision of the conduct of the operation, can be founded solely on a violation of the principle of proportionality applicable to restrictions of rights, freedoms and guarantees.
According to Judgment no. 407/97 and the Court’s subsequent case-law, the particular social nuisance caused by interfering with telecommunications entails that the judicial authority should supervise not just the launch of the operation but also its conduct. This supervision must be continuous and close, both in time and physically, to the source, but this does not necessarily mean that “all telephone tapping operations must be physically carried out by a judge”, as a “maximalist interpretation” would require. The interpretation whereby, in order to determine the beginning of the period during which interception of telephone communications is permitted (where a date is not set directly by the judge), the effective date of the start of the operation must be taken into consideration, not the date of the judicial decision authorising it, cannot lead to a finding that the requirement of judicial supervision of the operation is adversely affected, notably in view of the facts that the interference with the fundamental right in question takes place only when the telephone tapping commences, and that, in the case under consideration, the police body responsible for the investigation and the body capable of carrying out the interception and recording operations were not the same, nor were they geographically close. In addition, it does not seem that these bodies made improper use of the opportunity afforded by the authorisation, with the result that the appropriateness and objectiveness of their activities cannot be called into question.
No fault can be found with the interpretation that the Constitution does not require the immediate issue of a report on the telephone tapping, specifying when it began, since a possible delay (of between 2 and 28 days) does not inevitably affect the requirement of supervision of the operation by a judicial authority, notably where, as in the present case, the delays were due to technical reasons and did not lead to an unacceptable restriction of the defendants right to respect for their privacy.
One of the most criticised aspects of the current legal system lies in the fact that the law does not specify a maximum duration for telephone tapping operations and fails to stipulate whether the report must be drawn up at the end of the authorised period or whether “interim” reports should be produced. A maximum duration of sixty days cannot be considered to result in an unacceptable loss of control over the operation by the judicial authority, even where combined with the interpretation that, failing a judicial decision to the contrary, the report on the telephone tapping operation must be drawn up at the end of each period of tapping and not immediately after each intercepted conversation. The relevant police authority must indicate therein the passages considered to be of importance as evidence.
At all events, the recorded intervals between the periods of performance of the tapping operations and the dates of issuance of the relevant reports, between those dates and the dates of transmission to the investigating judges and between the latter dates and the dates on which the judges themselves listened to the recordings were in no case so protracted that compliance with the condition of judicial supervision could be called into question.
The immediate destruction of recordings of intercepted conversations regarded as irrelevant could be deemed unacceptable from a constitutional standpoint, since it would deprive the defence of the possibility of requesting a transcript of passages of the recordings not selected by the judge, but which the defence considered important for revealing the truth, a possibility which would exist if the recording was destroyed only immediately after being listened to by the judge. In Judgment no. 426/2005 the Court held that “the defence (like the prosecution) must be able to request a transcript of passages other than those initially selected by the judge, either because it considers them important in themselves or because they are of use in clarifying the meaning of previously selected passages or placing them in context.”
The legislative criterion at issue could not be criticised from a constitutional angle, above all from the standpoint of safeguarding the interests of a defendant or of persons whose communications were being tapped. Nonetheless, attention must be drawn to the fact that all participants in an operation are subject to a duty of professional discretion, in order simultaneously to safeguard such persons right to privacy. With regard to passages of conversations regarded as inadmissible as evidence or irrelevant, which have therefore not been included in the case-file, this obligation does not end after the stage in the proceedings subject to the secrecy requirement.
In sum, the Court did not regard as unconstitutional the combined interpretation of the relevant provisions of the Code of Criminal Procedure in so far as:
a.the duration of the tapping operations was calculated from the date on which the operations began, not from the date of the judicial decision authorising them, and the lapse of time between these two dates was justified on account of technical difficulties and communication problems between the various bodies concerned;
b.there is no requirement that reports on telephone tapping operations, specifying when they began, should be issued immediately; in addition, in the case under consideration, the issuance of these reports was delayed for technical reasons, but this did not affect the judicial authority’s supervision of the operation;
c.there is no requirement that a report be issued after each recording of an intercepted conversation, since the setting of a sixty-day time-limit on tapping operations cannot be deemed to result in an unacceptable loss of control over the operation by the judicial authority, even where combined with the interpretation that, failing a judicial decision to the contrary, the report on the telephone tapping operation must be drawn up at the end of each period of tapping;
d.the strict imposition of a maximum duration between the end of the recording (or of its component stages) and the transmission of the relevant report to the judge is not necessary provided that the successive intervals between either the periods of interception and the dates on which the relevant reports must be issued, between those dates and the dates on which the reports must be transmitted to the investigating judges or between those dates and the dates on which the judges themselves listen to the recordings are in no case so protracted that compliance with the requirement of judicial supervision, imposed by the Constitution, can be called into question;
e.the immediate destruction of recordings of intercepted conversations which the judge deems irrelevant is not required. On the contrary, it must be deemed unacceptable from a constitutional standpoint to deprive a defendant, persons whose communications are intercepted or the prosecution of the possibility of requesting a transcript of passages of recorded communications which the judge did not select, either because they consider those passages to be important in themselves or because they are of use in clarifying the meaning of previously selected passages or placing them in context.
On the basis of the Code of Criminal Procedure, the Constitutional Court delivered Judgment no. 407/97, its first decision in matters of telephone tapping, which however focused on interpretation of the term “immediately” concerning the transmission to the judge having ordered or authorised the tapping operation of the report on the interception and recording operations as well as of the tapes and other similar evidence. According to the Constitutional Court, the particular nuisance caused by the interference which telephone tapping constitutes required the judge’s substantial involvement throughout the duration of the operation, through the exercise of continuous supervision which was close to the source both in time and physically. This supervision must allow a real possibility of upholding or modifying the decision ordering the telephone tapping operation, according to the manner in which it was conducted. However, the Court pointed out that the stringent criterion adopted did not mean that “all telephone tapping operations must be physically carried out by a judge.” The Constitutional Court dealt with this issue in Judgment no. 407/97, but also in Judgments nos 347/2001, 528/2003, 379/2004 and 223/2005 (all concerned with the question of the “immediate” transmission to the judge of the report on the interception and recording operations), Judgment no. 411/2002 (in which the Court found unconstitutional an interpretation of the rules which invalidated the time-limit for applications to have recordings of telephone conversations adduced as evidence during the preliminary investigation declared null and void) and Judgment no. 198/2004, (in which the Court did not deem unconstitutional the interpretation of a provision of the Code of Criminal Procedure as permitting the use of other pieces of evidence, separate from the recordings of the telephone tapping operations and subsequent thereto, where this evidence consisted in statements made by the defendants themselves, and notably in a confession, despite the nullity/invalidity of the telephone tapping operations performed).
Many of the questions raised have their basis in the Portuguese legal system’s compliance with the
requirements of the case-law of the European Court of Human Rights in these matters, regard being had to Article 8 ECHR. The Constitutional Court referred to the European Court of Human Rights ruling that national laws must take precautions in order “to communicate the recordings intact and in their entirety for possible inspection by the judge ... and by the defence” and to establish the circumstances in which recordings may be erased or the tapes be destroyed, in particular when the accused has been discharged or acquitted or the judgment has become final (see paragraph 34 of the Huvig Judgment of 24 April 1990, Series A of the Publications of the Court, no. 176-B; paragraph 35 of the Kruslin Judgment of the same date, Series A of the Publications of the Court, no. 176-A; paragraph 59 of the Valenzuela Contreras Judgment of 30 July 1998, Reports 1998-V and paragraph 30 of the Prado Bugallo Judgment of 18 February 2003). This case-law was of particular relevance to the present appeal (a request for the immediate destruction of recordings deemed irrelevant by the investigating judge).
Lastly, a study of the legal systems of countries whose main constitutional rules in these matters are similar to those applied by Portugal shows that legislators have adopted diverse approaches to regulating telephone tapping, notably with regard to the role played by the judge either at the authorisation stage or during supervision of the operation.