21st May 2015
In a historic ruling, Évora’s court of appeal has clarified that text messages (even if they are not read) and mobile phone records can now be used in criminal cases and do not require any authorisation by a judge.
But emails - which can be accessed by mobile phones - can only be used if the person to whom they have been addressed has read them.
The decision was announced in today’s Diário de Notícias which claimed the law up until now has been “unclear in this context”.
Indeed it could have changed endless police investigations in the past - not least the original Madeleine McCann inquiry.
As TVI24 reveals, in 2007 Portimão Judge Pedro Frias “refused the PJ the right to look at text messages on Kate McCann’s mobile phone”, justifying his decision on the basis that “telephonic interceptions could not be authorised after the event”, and that he “could not authorise the consultation of written messages sent and received before receiving a request” to this effect.
Indeed TVI has run an exposé on the “controversial judge” (see our story elsewhere), adding that in 2007 “there were many voices” speaking out against this decision.
Now, as a result of the appeal court’s decision, the PJ would have had a great deal more investigative freedom.
Évora’s judges were asked to rule on the law following a case of theft in Serpa where the suspect had “inadvertently” left his mobile phone at the scene of the crime.
To find out who he was, police had gone through the man’s text messages and phone records.
The Public Ministry had argued that this was the kind of action that only a judge could authorise, but the panel defended that, “in essence”, a message kept in digital support “had the same protection as a written letter received in the post that had been opened and then filed in a personal file”.
Referring specifically to the case in Serpa, which DN stressed “should now apply to other cases”, the use of this kind of material should not require “previous intervention by a judge” to be authorised as proof.
Within hours of running the story, DN had received a number of commentaries both for and against.
‘Indeed TVI has run an exposé on the “controversial judge” (see our story elsewhere), adding that in 2007 “there were many voices” speaking out against this decision.’
I can’t find any trace of this.
Please can any of our Portuguese friends help?
Diário de Notícias 8.8.07
"Wiretaps confirm Madeleine's death"
New searches on land and at sea over the past two days
The interception of communications -- telephones (cell and land lines) and emails -- realized during the recent operations undertaken by the PJ and the British police of Madeleine's parents and the "nuclear family" has been the determining factor for the investigators to conclude that the British child died in the apartment in which she was sleeping, with her siblings, on the night of 3 May in Praia da Luz.
The police continues to focus attentions in the local area, far from the watchful eyes of locals and, especially, journalists. For at least the last two days there have been new searches on land and the waterfront, particularly in the Lagos area, with the help of British dogs and the GNR.
If this evidence really was the ‘determining factor’ as stated, which the PJ were then unable to use, will todays ruling open up a can of worms with this evidence now being allowed to be looked at and utilized by the present PJ investigation?
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’Maria Santos The only relevance to the Maddie case this has is about mails and texts between them AFTER this law. What has been exchanged before, legally, will remain illegal to use.’
I’m not convinced that this is correct, as it’s not a change in the law, just a correction as to how it should be interpreted. Therefore if there is evidence that was obtained but that was not allowed to be used previously due to the ‘old’ interpretation laid down by ‘controversial judge’ Pedro Frias , logically there is no longer any reason that this evidence cannot now be introduced.
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Personally, I am still of the opinion that as there has been no change in the law, but purely clarification in how it should be interpreted, anyevidence that was collected, but that was previously not allowed to be used, can now be introduced. Only a change in law would not be retrospective.
It would be good to get a Portuguese legal perspective on this though.
. mariaccnr @mariaccnr May 26 Text messages and calls “can now be submitted in court as evidence” | Portugal Resident http://portugalresident.com/text-messages-and-calls-%E2%80%9Ccan-now-be-submitted-in-court-as-evidence%E2%80%9D …
@mariaccnr Can this ruling be applied retrospectively? In which case, I want to be first in the queue to suggest which calls!!
6:42 AM - 26 May 2015
. mariaccnr @mariaccnr May 26 @kikoratton
. I think not.
. But I don't know whatever about laws.
. dewi lennard @kikoratton May 26 @mariaccnr Nor me. But if the judge in Evora got it wrong, then there should be an opportunity to listen to those calls, esp KM's on 1 May.
. mariaccnr @mariaccnr 2h2 hours ago @kikoratton
. Good Day.
I think Judge Pedro Frias was in Portimão.....