View source for Tribunal da Relação de Lisboa - 842/16.5T8ALQ.L1-3

{{COURTdecisionBOX

|Jurisdiction=Portugal
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=Tribunal da Relação de Lisboa
|Court_With_Country=TR Lisboa (Portugal)

|Case_Number_Name=842/16.5T8ALQ.L1-3
|ECLI=

|Original_Source_Name_1=Portuguese Jurisprudence Repository
|Original_Source_Link_1=http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/f29bb6d27dadeeb28025819c00508fe8?OpenDocument
|Original_Source_Language_1=Portuguese
|Original_Source_Language__Code_1=PT

|Date_Decided=17.05.2017
|Date_Published=
|Year=2017



|National_Law_Name_1=Article 3(a) and 23 of Lei 67/98
|National_Law_Link_1=https://dre.pt/pesquisa/-/search/239857/details/maximized
|National_Law_Name_2=Article 18 of Constituição da República Portuguesa
|National_Law_Link_2=https://dre.pt/constitution-of-the-portuguese-republic
|National_Law_Name_3=Article 27(1) of the Código da Estrada
|National_Law_Link_3=https://dre.pt/web/guest/legislacao-consolidada/-/lc/116041830/view?consolidacaoTag=Autom%C3%B3veis
|National_Law_Name_4=Article 5(1) of Decreto-Lei n.º 207/2005
|National_Law_Link_4=https://dre.pt/pesquisa/-/search/483390/details/maximized
|National_Law_Name_5=Article 11 and 12 of Lei 1/2005
|National_Law_Link_5=https://dre.pt/pesquisa/-/search/243729/details/normal?q=Lei+Constitucional+1%2F2005

|Party_Name_1=
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|Party_Name_3=
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|Party_Name_4=
|Party_Link_4=
|Party_Name_5=
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|Appeal_From_Body=CNPD (Portugal)
|Appeal_From_Case_Number_Name=842/16.5T8ALQ.L1-3
|Appeal_From_Status=
|Appeal_From_Link=
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=Not appealed
|Appeal_To_Link=

|Initial_Contributor=Jose Belo
|
}}

A Portuguese Court concluded that, as long as a driver is not visible nor identifiable, a radar photograph of a vehicle that is violating the maximum speed limits set in Article 27(1) of the Código da Estrada (Portuguese Highway Code) is not in violation of the constitutional right to privacy (Article 18 of the Portuguese Constitution) nor violating the Act 67/98 (Portuguese Data Protection Act).

== English Summary ==

=== Facts ===
In the case of a public interest (road safety), it is appropriate and proportionate to monitor the speed at which cars travel, through a registration of the speed with a radar, including a photograph of the vehicle license plate, which will only be used if necessary for the purposes of criminal or administrative fining proceedings.

There is no interference on the constitutionally protected right to privacy or intimacy, inasmuch as the image collected by a radar is directed at the vehicle, and, more specifically, at its license plate, while the driver is not visible nor identifiable. 

=== Dispute ===
A driver was caught speeding and was issued an administrative fine of inhibition of driving for a period of 90 days. 

The driver appealed the decision to the Court of First Instance, considering her/his right to privacy was violated by being photographed by a speeding radar. That meant that having her/his photograph taken and used as proof in the proceedings should be considered illegally obtained evidence.

Also, the driver considered that there was no evidence that the radar had been registered and approved by the data protection authority (CNPD), as is legally required, and so, the radar infringed the national data protection law.

The Court of First Instance upheld the administrative decision. The driver, then, appealed to the Appeal Court.

=== Holding ===
The data protection authority, CNPD,  is responsible for giving opinions, controlling and inspecting compliance with legal and regulatory provisions regarding the treatment and protection of personal data, as per article 23 of Act 67/98, of 26 October.

In accordance with the provisions of article 3, a) of this Act, personal data is “any information, of any nature and regardless of the respective support, including sound and image, relating to the identified or identifiable natural person who may have data be identified, directly or indirectly, namely by reference to an identification number or to one or more specific elements of their physical, physiological, psychological, economic, cultural or social identity ”.

The radar used only registered the speed of the car, which is data that is outside the sphere of private life, insofar as it was verified in a public place.

With public interest (road safety) at stake, it is considered appropriate and proportionate, under the terms of article 18 of the Portuguese Constitution, to monitor and register the speed at which vehicles travel through radar monitoring and registration of the offense through a photograph of the vehicle and license plate, which will only be used if necessary for the purpose of criminal or administrative offense proceedings.

The Appeal Court considered, then, that, there is no interference on the constitutionally protected right to privacy or intimacy, inasmuch as the image collected by a radar is directed at the vehicle, and, more specifically, at its license plate, while the driver is not visible nor identifiable. 

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the Portuguese original. Please refer to the Portuguese original for more details.

<pre>
The Judges of the Appeal Court of Lisboa agree:

Report:

In the present case, A.L.J. appealed the decision that confirmed the administrative decision (National Road Safety Authority) that condemned him in the inhibition of driving for a period of 90 (ninety) days for the practice of an infraction to art. 27º nº 1 of the EC.

To this end, it presented the following
Conclusions:

i.- By decision rendered by the Court, when notified to the Arguido in the person of the agent on January 5, 2017, the Appellant was sentenced in an accessory sanction of disqualification from driving for a period of 90 (ninety) days for the practice of an infraction to art. 27º nº 1 of the EC.
ii.-The Court considered that, in the present case and with attention to the judicial appeal, consider as proven the facts that fulfill the decision of the National Road Safety Authority (ANSR).
iii.-However, it was alleged by the Appellant, in the judicial challenge appeal, that the administrative authority did not refer to the authorization or registration of the photographic radar in question by the National Data Protection Commission (CNPD) regarding the collection of data in cause.
iv.-After researching, the Applicant was unable to confirm that the photographic radar in question in the file had been registered with CNPD or that data collection by it was authorized.
v.-What, in our opinion and save the best opinion, determines that the evidence in question is prohibited because it does not meet the approval requirements so that it can be used as such.
vi.-On the collection of data through this type of equipment without CNPD authorization, see Benjamin Silva Rodrigues, who mentions that “regarding the“ duty of communication to CNPD ”of the video cameras used by the security forces, it matters consult: article 5 of Decree-Law no. 207/2005 (…); articles 11 and 12 of Law no. 1/2005, of 10 January (…) which provide for the registration of disciplinary and criminal apparatus and sanctions for breach of such obligation ”.
vii.-Still in this regard, the author continues: “(…) if the device is not communicated to CNPD, we will be facing prohibited evidence, its valuation in court not being possible and the defendant should be acquitted, in the case of the auto de news to be based on a record originating from such a device not communicated to CNPD ”.
viii.-In fact, as taught by Benjamin Silva Rodrigues, article 5 no. 1 of DL no. 207/2005 establishes that “The security forces responsible for data processing and the use of electronic surveillance means notify CNPD of fixed cameras installed, with identification of the respective model, technical characteristics and serial number and of the public places that these allow observing, as well as the name of the entity responsible for the equipment and data processing. ”;
x.-Already Article 12 of Law No. 1/2005 establishes that “The competent authority to authorize the installation of fixed video cameras maintains a public record of all authorized installations, stating the exact date and location of the installation, its applicant and the purpose for which it is intended, the other elements of the process instructed by the respective security force and the CNPD's opinion, as well as the authorization period and its eventual renewals. ” (bold and underline ours).
x.-In casu, such notification by CNPD of the information contained in article 5º 1 of DL nº 207/2005, as well as the opinion of CNPD in relation to it, was not communicated to the Appellant nor was it included in the records of the administrative infraction process.
xi.- In addition, and in accordance with the provisions of article 4, no. 3 of Decree-Law no. 207/2005, of 29 November, the data obtained through the equipment in question can only be used from the respective register.
xii.-How can the report of the news (and the Condemnatory Decision) be checked that the Appellant was notified without indicating the radar registration, namely the number of the radar, the camera number and the respective number of the photo captured by said radar that constitutes the alleged evidence of the infraction.
xiii.- Nor, at the trial hearing, was such information given / conveyed, as required by the principle of immediacy and orality present in the Code of Criminal Procedure (Article 355).
xiv.- Thus, in our opinion, in the specific case, photographic equipment is at stake, and in no way can such evidence be used because we are dealing with unauthorized data capture.
xv.- From the foregoing it follows that the evidence that will have been used in these records is null and cannot be used (cf. maxime articles 124 and 126 of the Code of Criminal Procedure).
xvi.- For that reason, the Court went wrong, in our opinion and, except for a better understanding, when deciding to maintain the ANSR decision.
xvii.-Namely when he founded his conviction based on the photographic record that, it is reaffirmed, was obtained through radar that does not comply with the legally imposed requirements.
xviii.-In our understanding and unless I have a better opinion, the Justice of the Court was wrong when deciding to punish the Arguido as a repeat offender under the terms and on the grounds on which he did it;
xix.-We disagree with the decision of the Tribunal a quo insofar as such a decision is clearly in breach of the constitutional principle of the presumption of innocence enshrined in article 32, no. 2 of the CRP, as well as in article 11, of the UDHR, article 6, no. 2 of the ECHR and article 14 nº2 of the PIDCP.
xx.-The administrative offense process is subject to the specific rules of the Highway Code and the General Administrative Offenses Regime (Illicit of Mere Social Ordinance), and as such, it protects legal assets of lesser importance;
xxi.-Despite this, its processing must be governed by the guiding principles of criminal proceedings and other applicable substantive law, namely, the Constitution of the Portuguese Republic.
xxii.- Thus, the Tribunal a quo cannot consider that the Arguido is a repeat offender, taking the time between the practice of the two infractions as he did;
xxiii.-In doing so, it is clearly in violation of article 32 of the CRP, article 11 of the DHDH, article 6, no. 2 of the ECHR, and article 14, no. 2 of the PIDCP.
xxiv.- Thus, the sentence handed down by the Tribunal a quo under the terms of article 380 of the CPP, applicable in the alternative to the administrative proceeding, needs to be corrected.
xxv.-Thus, without prejudice to any other rules, the sentence that is now appealed violated articles 5, no. 1 and 4, no. 3 of Decree-Law no. 207/2005, article 12 of Law no. 1/2005 and articles 124 , 126, 129, 355 and 380 of the CPP and article 32 of the CRP, in article 11 of the DHDH, in article 6 of the ECHR and in article 14 of the PIDCP.
In view of the above, and in your learned supply, the present appeal must be fully upheld and, consequently, the learned decision should be revoked and replaced by another that determines the correction of the contested sentence.
This is the only way to do the usual JUSTICE!
***

The MP was pronounced at 1st Instance for not accepting the applicant's claim.
***

Since the matter is only a matter of law, it is necessary to decide:

The applicant considers that the evidence collected by the radar in question is null since the file does not show that it was authorized by the competent authority.
He believes that the principle of the presumption of innocence has been violated.
He understands that he should not be considered as a repeat offender.
He asks for the decision to be revoked and replaced by another that corrects the contested sentence.

LET'S SEE: The device in question is as shown in the file after consulting a Cinemometer - Radar Multanova 6FD, approved by IPQ (D. Approv. Mod. No. 111.20.12.3.09) and approved for use by Order no. 1863 / 2014, from ANSR, of 02Jan., With periodic verification by IPQ on 10.33.2013.


The news report was prepared based on the elements collected through the aforementioned apparatus. The same is true in court, which proves that it can be rebutted and was not.
With regard to the powers of the CNPD, an independent administrative entity, it is responsible for giving opinions, controlling and inspecting compliance with legal and regulatory provisions in terms of protection and personal data, processing and protection of personal data, - article 23 of Law 67 / 98 of 26 October.
In accordance with the provisions of article 3, a) of the same diploma, personal data such as “any information, of any nature and regardless of the respective support, including sound and image, relating to the identified natural person or identifiable data holder that can be identified. , directly or indirectly, namely by reference to an identification number or to one or more specific elements of your physical, physiological, psychological, economic, cultural or social identity ”.

As was very well written in the contested decision, “using the radar used, only the speed record of the car that was driven was obtained, which is a fact that is outside the sphere of private life, as it was verified in a public place. To this, in addition, if a public interest (road safety) is at stake, it would always be appropriate and proportionate, under the terms of article 18 of the Basic Law, to impose on drivers the registration of the speed at which they travel, a registration that will only be used if it is necessary to effect of criminal or administrative offenses, as in the present case. "

Now, the radar in question, as we have already seen, was properly installed since no one can question that the elements contained in the records relating to the approval and verification of the radar are sufficient to conclude by the reliability and legality of the device that measured the speed at which the vehicle circulated. vehicle inside which the applicant was behind the wheel. As the MP in the 1st Instance very well says, an eventual lack of notification to the CNPD does not allow us to conclude that with this means of proof a prohibited method of proof has been used, under the terms provided for in article 126 of the Code of Criminal Procedure. [1]


Indeed, the omitted act (notification) is limited to simple communication, not requiring “approval”, “approval” or “authorization” by the CNPD, and it cannot be said that with the absence of this notification, by itself, any imperative provision of a material nature has been violated, either regarding the technical assessment and certification of the equipment or regarding its approval by the competent entities, after certification by the IPQ.
It should also be noted that there was also no interference in the scope of privacy or privacy that the prohibition of proof aims to guarantee, inasmuch as the image collected was directed to the vehicle, and more especially to its registration, and it is not possible to identify the person. of the driver - cf. photograph taken by radar together with pages 6.

Therefore, in this part, the appeal lodged fails. Let us see as to the repeat offense, between the previous conviction and this one, the appelant considered that it had already passed says more than 5 years. It follows from the contested decision: “From the factuality found, it also follows that, prior to the offense in subject, the appellant was condemned for the practice of a very serious infraction, to which report no. 903823268, dated 10.11. 2009, for driving a light motor vehicle, outside the locality, with an excess speed exceeding 60 km / h and less than 80 km / h, sanctioned with an accessory sanction of disqualification from driving for a period of 180 days, having been notified of decision on 16.11.2010.

The aforementioned infraction was carried out in a period of less than 5 years in relation to the date of committing the offense that is now judged, on July 15, 2014, and it has only ceased to appear in the RIC because, at the time of the appeal, more than 5 years have passed since its practice.

Thus, it is necessary to condemn the applicant as a repeat offender, in the terms outlined above, which implies an increase, to double, of the minimum and maximum limits provided for in paragraph 2 of article 147 (ex vi of paragraph 3 of article 143). ).

Article 139 (1) of the Highway Code prescribes that the measure and regime for enforcing the sanction are determined according to the seriousness of the offense and the fault, taking into account the background of the infringer in relation to the legal instrument infringed.

In the present case, we have that at the date of the administrative decision, the defendant already had a conviction registered in his RIC for similar facts, in which an accessory penalty of 180 days had already been applied to him, this is revealing that we are not facing a conduct merely isolated from the accused, but rather in the face of repeated non-compliance with road rules. More it is verified that the accused does not recognize the devaluation of his conduct, being that in face of the norm in subject that punishes the imputed infraction (in which the driving of 150 to 170 km / h is syndicated) it appears that the speed undertaken it is very close to the legal maximum, thus aggravating your conduct. »
(...)

“It is more evident that the defendant requests the application of the provisions of article 140 of the Highway Code, which establishes that the minimum and maximum limits of the accessory sanction imposed for very serious administrative offenses can be reduced by half, taking into account the circumstances of offense, but only if the offender has not committed, in the last five years, any serious or very serious offense or fact sanctioned with a ban or inhibition of driving and on condition that the fine is paid, circumstance (as to the lack of practice previous administrative offense) that does not occur in the sub-judicial situation.

In addition, without prejudice to the potentially serious consequences that may arise for the defendant - inherent in the impositions of modern life, in which, for the great majority of citizens, the motor vehicle has become an indispensable tool to the multiple demands of day-to-day life , whether professional or personal - the possibility of non-application, suspension of the sanction or its substitution by any other sanction is legally ruled out - cfr. Article 141 (1), (2) and (3) of the Highway Code. " In accordance with the provisions of no. 1 art. 143 EC, it sets the dies a quo of the 5-year period at the time of committing the fact and its dies ad Quem on the date of the practice of the “new” facts.

The fact that he was convicted as a repeat offender on a different date and later only confirms the existence of a recurrence verified at the time of the practice of the second offense. The Court went well when deciding how it decided confirming the decision of the administrative entity. Thus, the appeal filed is dismissed, maintaining the contested decision. Costs setting the justice rate at 4 units Lisbon, May 17, 2017 Adelina Barradas de Oliveira - (Ac prepared and reviewed by the rapporteur). Jorge Raposo 

[1] Judgment of the Court of Appeal of Évora, dated 01.19.2016, reported by Venerable Judge José Martins Simão, «The failure to notify the CNPD of the installation of fixed chambers for detecting road infractions, as provided for in article 5 of Dec Law No. 207/2005, of 29.11, does not question the validity of this means of obtaining evidence. "
</pre>