professional secrecy is forbidden, with the exception of any situation in which they
are also suspects of committing the same crime.
The disrespect for such conditions and requirements, under article 257 of the
Criminal Procedure Code, determines the exclusion of the evidence obtained, an
effect that the Constitutional Court recently underlined in the case Judy Ike Hills
v. Supreme Court of Justice when it considered that the non-exclusion of evidence
apparently decisive in convicting suspects of drug-trafficking in a situation where the
criminal police read their mobile telephone data without a judicial warrant violated
their constitutional rights to inviolability of communication, the general right to
privacy and their right to personal data protection.
126 Thus, it adopted an injunction
ordering the lower court to exclude this evidence, in a country that used to be very
understanding of efforts made by police agencies to combat drug-trafficking even
when blunders were made when investigating the crimes and sloppy work curtailed
basic procedural and substantive rights of suspects and where criminal police and
even some public prosecutors and judges were sympathetic in the sense that those
irregularities were minor flaws that should be acceptable to people that have ‘nothing
to hide’,
127 neglecting not only the rights of the affected persons, but also the
substantive public value of privacy and personal data protection.
With regard to data retention, there is no specific legislation, but this is dealt with
by the Criminal Procedure Code under articles 256 and 257, the Cybercrime Act and
the Video Surveillance Act. The Video Surveillance Act of 2015 was enacted after
the Constitutional Court gave an Advisory Opinion considering that, from a constitutional point of view, there were insufficient guarantees under an Organization of
Criminal Investigation bill that Parliament approved.
128 After a very general norm
was inserted in the same bill and approved as an Act, those guarantees were
introduced by the 2015 Law. Under this legislation, images can be retained for a
maximum period of 30 days and destroyed after proceedings (articles 21 and 23).
More specifically, the Cybercrime Act, as mentioned, permits, in general, traffic
data interception, considering that whenever it is silent, according to article 30, the
Criminal Procedure Code is applicable, which in its articles 256 and 257 permits
retention of data for those purposes. Therefore, the law determines that the technical
materials that are not transcribed to the case-file, will remain under the Public
Prosecutor Service guard, but must be destroyed before (if they happen to be
unnecessary for related purposes) or after a decision that is final and not subject to
an appeal, and if so requested by any interested person to the judge that ordered or
authorised the collection. In this case the same general requirements for interception
of data apply.
126 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), III, 1 (c).
127 See Solove (2011), for the borrowed expression.
128 Above Sect. 2.1.4.
Data Protection in the Internet: Cape Verde’s National Report
101
are also suspects of committing the same crime.
The disrespect for such conditions and requirements, under article 257 of the
Criminal Procedure Code, determines the exclusion of the evidence obtained, an
effect that the Constitutional Court recently underlined in the case Judy Ike Hills
v. Supreme Court of Justice when it considered that the non-exclusion of evidence
apparently decisive in convicting suspects of drug-trafficking in a situation where the
criminal police read their mobile telephone data without a judicial warrant violated
their constitutional rights to inviolability of communication, the general right to
privacy and their right to personal data protection.
126 Thus, it adopted an injunction
ordering the lower court to exclude this evidence, in a country that used to be very
understanding of efforts made by police agencies to combat drug-trafficking even
when blunders were made when investigating the crimes and sloppy work curtailed
basic procedural and substantive rights of suspects and where criminal police and
even some public prosecutors and judges were sympathetic in the sense that those
irregularities were minor flaws that should be acceptable to people that have ‘nothing
to hide’,
127 neglecting not only the rights of the affected persons, but also the
substantive public value of privacy and personal data protection.
With regard to data retention, there is no specific legislation, but this is dealt with
by the Criminal Procedure Code under articles 256 and 257, the Cybercrime Act and
the Video Surveillance Act. The Video Surveillance Act of 2015 was enacted after
the Constitutional Court gave an Advisory Opinion considering that, from a constitutional point of view, there were insufficient guarantees under an Organization of
Criminal Investigation bill that Parliament approved.
128 After a very general norm
was inserted in the same bill and approved as an Act, those guarantees were
introduced by the 2015 Law. Under this legislation, images can be retained for a
maximum period of 30 days and destroyed after proceedings (articles 21 and 23).
More specifically, the Cybercrime Act, as mentioned, permits, in general, traffic
data interception, considering that whenever it is silent, according to article 30, the
Criminal Procedure Code is applicable, which in its articles 256 and 257 permits
retention of data for those purposes. Therefore, the law determines that the technical
materials that are not transcribed to the case-file, will remain under the Public
Prosecutor Service guard, but must be destroyed before (if they happen to be
unnecessary for related purposes) or after a decision that is final and not subject to
an appeal, and if so requested by any interested person to the judge that ordered or
authorised the collection. In this case the same general requirements for interception
of data apply.
126 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), III, 1 (c).
127 See Solove (2011), for the borrowed expression.
128 Above Sect. 2.1.4.
Data Protection in the Internet: Cape Verde’s National Report
101