(article 1). It establishes rules targeting preservation of electronic data, research on
electronic data, apprehension of electronic data, interception of electronic data and
reading of electronic data, email and other similar manners of communication.
Expediting the preservation of data requires, in principle, a judicial warrant or a
public prosecutor order. But, if there is “emergency or danger in delay” they can be
ordered by a criminal police organ (article 14); if, in the case of search of computer
data, the person who has the availability or control of such data, provides voluntary
and documented consent or in cases of terrorism, violent or highly organised crime,
when there is evidence of the imminence of a crime which poses a serious risk to life
or health of any person; in the case of seizure of computer data, in addition to the
abovementioned reasons, in cases of emergency or danger in delay. In such situations, there is a duty to give notice to the judicial authority or submit the data for
judicial validation. Research on electronic data (article 17) and apprehension of
electronic data (article 18) and email correspondence and other related communications (article 19) follow a similar path, depending on judicial or public prosecutor’s
authorisation, and only in exceptional circumstances following an order of a criminal
police organ.
Article 20 of the Cybercrime Act and, as subsidiary legislation, the Code of
Criminal Procedure is the relevant regulatory instrument on the matter of interception. Interception of content data and traffic data is allowed, in the cases of crimes
established by that law, in particular computer forgery, computer damage, computer
sabotage, illegal access, misuse of devices, offences related to child pornography
and revenge porn, and of other crimes if punishable with a maximum sentence limit
of over 3 years, crimes against sexual self-determination, terrorism and violent or
highly organised criminality, crimes against the protection due to children, drug
trafficking, smuggling related offences and insult, threat, coercion, disclosure of
private life and disturbance of peace and quiet, when committed by means of
electronic device. It is a requirement that it must be authorised by a reasoned judicial
decision—which shall contain its specific scope—after a request made by the
Prosecution’s Service, if there are reasons to believe that this is essential to
establishing the truth or that gathering the evidence would otherwise be impossible
or very difficult to obtain by other means.
The remaining rules applied are inserted in the Criminal Procedure Code, in
article 255, paragraph two, that limits interception of communication data subjectively to suspects or to persons against whom there are grounds to believe that they
receive or transmit messages aimed at the suspects or that a suspect uses their
electronic equipment. In addition, paragraph three of the same article establishes
that the time-limit of the operation is 3 months, renewable for equal periods,
provided that the respective requirements for admissibility have been met, especially
in addition to what was mentioned above, if there are grounds to believe that it will
help the Court to “discover [...] the truth”.
125 Interception of communication
between the defendant and its counsel or other persons subjected to a duty of
125 See the critic of Fonseca (2003), p. 114.
100
J. Pina-Delgado
electronic data, apprehension of electronic data, interception of electronic data and
reading of electronic data, email and other similar manners of communication.
Expediting the preservation of data requires, in principle, a judicial warrant or a
public prosecutor order. But, if there is “emergency or danger in delay” they can be
ordered by a criminal police organ (article 14); if, in the case of search of computer
data, the person who has the availability or control of such data, provides voluntary
and documented consent or in cases of terrorism, violent or highly organised crime,
when there is evidence of the imminence of a crime which poses a serious risk to life
or health of any person; in the case of seizure of computer data, in addition to the
abovementioned reasons, in cases of emergency or danger in delay. In such situations, there is a duty to give notice to the judicial authority or submit the data for
judicial validation. Research on electronic data (article 17) and apprehension of
electronic data (article 18) and email correspondence and other related communications (article 19) follow a similar path, depending on judicial or public prosecutor’s
authorisation, and only in exceptional circumstances following an order of a criminal
police organ.
Article 20 of the Cybercrime Act and, as subsidiary legislation, the Code of
Criminal Procedure is the relevant regulatory instrument on the matter of interception. Interception of content data and traffic data is allowed, in the cases of crimes
established by that law, in particular computer forgery, computer damage, computer
sabotage, illegal access, misuse of devices, offences related to child pornography
and revenge porn, and of other crimes if punishable with a maximum sentence limit
of over 3 years, crimes against sexual self-determination, terrorism and violent or
highly organised criminality, crimes against the protection due to children, drug
trafficking, smuggling related offences and insult, threat, coercion, disclosure of
private life and disturbance of peace and quiet, when committed by means of
electronic device. It is a requirement that it must be authorised by a reasoned judicial
decision—which shall contain its specific scope—after a request made by the
Prosecution’s Service, if there are reasons to believe that this is essential to
establishing the truth or that gathering the evidence would otherwise be impossible
or very difficult to obtain by other means.
The remaining rules applied are inserted in the Criminal Procedure Code, in
article 255, paragraph two, that limits interception of communication data subjectively to suspects or to persons against whom there are grounds to believe that they
receive or transmit messages aimed at the suspects or that a suspect uses their
electronic equipment. In addition, paragraph three of the same article establishes
that the time-limit of the operation is 3 months, renewable for equal periods,
provided that the respective requirements for admissibility have been met, especially
in addition to what was mentioned above, if there are grounds to believe that it will
help the Court to “discover [...] the truth”.
125 Interception of communication
between the defendant and its counsel or other persons subjected to a duty of
125 See the critic of Fonseca (2003), p. 114.
100
J. Pina-Delgado