Tribunal Constitucional - Ruling 464/2019

Tribunal Constitucional - Ruling 464/2019
Court:	Tribunal Constitucional (Portugal)
Jurisdiction:	Portugal
Relevant Law:	Art. 1(3) and 15(1) of Directive 2002/58/CE Art. 34(4) of the Constituição da República Portuguesa Art. 3 of the Lei Orgânica n.º 4/2017
Decided:
Published:	21.10.2019
Parties:
National Case Number/Name:	Ruling 464/2019
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	Portuguese
Original Source:	Diário da República n.º 164/2017, Série I de 2017-08-25 (in Portuguese)
Initial Contributor:	Jose Belo

The Constitutional Court considered unconstitutionality of the rule contained in article 3 of Organic Law no. 4/2017, of 25 August, in the part in which it allows the access of the information officers of the Portuguese Security Information Service (SIS) and the Defense and Strategic Information Service (SIED), regarding basic data and equipment location, when they do not support concrete communication, for the purpose of producing information necessary to safeguard national defense and security internal.

Furthermore, a decision was also made that the rule contained in article 3 of Organic Law no. 4/2017, of 25 August is not unconstitutional, insofar as it admits the access of the information officers of these services within the scope of their duties, in relation to data of base and location of equipment, with regard to access to traffic data that don't involve intersubjective communication.

The Court decided to also declare the rule contained in article 4 of Organic Law no. 4/2017, of 25 August, unconstitutional.

English Summary

Facts

Thirty-five Deputies to the Assembly of the Republic requested the assessment and declaration unconstitutionality of the rules contained in articles 3 and 4 of Organic Law no. 4/2017 , of 25 August, which approves and regulates the special procedure for accessing telecommunications and Internet data by the Service's information officers Security Information Service (SIS) and the Defense Strategic Information Service (SIED) and proceeds to the second amendment to Law No. 62/2013 , of 26 August (Law on the Organization of the Judiciary System).

Dispute

The grounds for the request were : "The relevant question to be considered is to know which types of data are under the protection established in paragraph 4 of article 34 of the Constitution, which expressly provides that" all interference by public authorities in correspondence is prohibited telecommunications and other means of communication, except as provided for in the law on criminal prosecution."

Based on the question of data protected by the secrecy of communications, it is important to know whether the access to traffic data provided for in articles 3 and 4 of the LO by information officers conforms to the exception contained in the second part of n. 4 of article 34 of the CRP, which allows access to data of this nature in the cases provided for by the law in the area of ​​criminal proceedings.

The answer given by the TC, in Decision No. 403/2015 , to the question of whether traffic data, including location data, are within the scope of the protection of paragraph 4 of article 34 of the Constitution, it couldn't be clearer.

There it is stated (p. 16) that "there is a broad consensus in doctrine and jurisprudence, otherwise there is no known opposite position, in the sense of including traffic data in the concept of communications constitutionally relevant to the prohibition of interference".

And after a wide doctrinal and jurisprudential explanation, the TC concludes that "the area of ​​protection of the confidentiality of communications enshrined in paragraph 4 of article 34 of the CRP, comprises both the content of the communication and the traffic data related to the communication process ".

Based on the question of data protected by the secrecy of communications, it is important to know whether the access to traffic data provided for in articles 3 and 4 of the LO by information officers conforms to the exception contained in the second part of n. 4 of article 34 of the CRP, which allows access to data of this nature in the cases provided for by the law in the area of ​​criminal proceedings.

The Judgment No. 403/2015The TC also extensively analyzes this point to conclude that "by allowing public authorities to intervene in the media only in matters of criminal prosecution, and not for any other purposes, the Constitution wanted to ensure that access to these means, to safeguard values ​​of justice and security, be carried out through a procedural instrument that also protects people's fundamental rights ". And he continues: "because interference in communications puts a fundamental right in conflict with other rights or community values, it was considered that the restriction of that right would only be authorized for the realization of the values ​​of justice, the discovery of material truth and the restoration of peace. Community legal system, the values ​​that the criminal process has to fulfill ".

However, the aforementioned Judgment goes further, stating that paragraph 4 of article 34 of the CRP has consequences that are reflected in the constitutional status of the defendant (article 32 paragraph 8 of the CRP) and that lead to consideration the nullity of evidence obtained by tampering with communications.

On the other hand, the aforementioned Judgment also concludes, that "in the case of interference by public authorities in communications, that Article 34, paragraph 4, first part, enshrines as a general principle, the exceptions referred to in the segment end of this precept are subject to the subject of criminal proceedings, and since the restriction is constitutionally authorized only in these terms, there is no point in making any other interpretation that allows the restriction to be extended to other effects, as if the restriction were not specified in the constitutional text itself if it were a purely implicit restriction that allowed to meet other constitutionally recognized values ​​or assets ".

There is, as mentioned, an abundant constitutional jurisprudence in this sense (Judgments Nos 241/02, 195/85, 407/97, ​​70/2008, 486/2009 and 699/2013).

The TC therefore considers that, outside the criminal proceedings, there is an absolute ban on interference by public authorities in the media, including in terms of traffic data.

Therefore, it is important to know whether the access of information officers to traffic data, including location data, can be considered as an activity "in matters of criminal prosecution".

Holding

The TC decided that access of information officers to traffic data, including location data, is "certainly" negative, since "the purposes and interests that the law is entrusted to SIRP to pursue, the functional powers that it confers on its staff, and the performance and control procedures it establishes, place access to the traffic outside the scope of criminal investigation ".

The provisions of Article 3 of the LO are that SIS and SIED intelligence officers can have access to basic and equipment location data for the purpose of producing information necessary to safeguard national defense, internal security and security. the prevention of acts of sabotage, espionage, terrorism, proliferation of weapons of mass destruction and highly organized crime within its exclusive scope.

And Article 4 provides that SIS and SIED information officers may have access to traffic data for the purpose of producing information necessary to prevent acts of espionage and terrorism.

The TC considered that this is the field of collecting information for the purpose of prevention, which in the understanding of the TC "is clearly and precisely dissociated from the criminal investigation activity" (Judgment cit., P. 23).

Under the terms of Law no. 49/2008 , of 27 August, the criminal investigation "comprises the set of measures that, under the terms of the criminal procedural law, are intended to ascertain the existence of a crime, determine its agents and the your responsibility and discover and collect the evidence, within the scope of the process ".

In fact, the intelligence services do not have any police or criminal investigation powers, and such activities are legally forbidden.

There is, therefore, (it is the understanding of the TC) "a radical distinction between information and criminal investigation, which prevents information officers from intervening in criminal proceedings".

Although the collection of information can be used in criminal proceedings, the collection for that purpose must address a crime already committed. The collection of information by SIRP, because it is preventive, is not oriented towards an investigative activity of crimes already committed or in execution.

The TC concluded that the information activity produced by the SIRP, because it is not directed towards the discovery of the authorship of a crime, does not have the nature of a criminal investigation. (...) They are, therefore, administrative procedures that, having to respect the rights, freedoms and guarantees, do not obey the legal-constitutional principles that make up the criminal process (Judgment cited p. 24).

a) Declare unconstitutionality, with general mandatory force, of the rule contained in article 3 of Organic Law no. 4/2017 , of 25 August, in the part in which the information officers of the Information Service of Security (SIS) and the Defense and Strategic Information Service (SIED), in relation to basic data and equipment location, when they do not support concrete communication, for the purpose of producing information necessary to safeguard national defense and internal security, for violation of articles 26, paragraph 1, and 35, paragraphs 1 and 4, in conjunction with article 18, paragraph 2, of the Constitution of the Portuguese Republic;

b) Do not declare the rule contained in article 3 of Organic Law no. 4/2017 , of 25 August unconstitutional , insofar as it allows the access of the information officers of these services within the scope of their respective duties, with basic and equipment location data, when they do not support concrete communication, for the purpose of producing information necessary to prevent acts of sabotage, espionage, terrorism, proliferation of weapons of mass destruction and highly organized crime;

c) Declare the rule contained in article 4 of Organic Law no. 4/2017 , of 25 August unconstitutional, with general mandatory force , for violation of the provisions of article 34, no. 4, of Constitution, with regard to access to traffic data involving intersubjective communication, and for violation of the provisions of articles 26, paragraphs 1 and 35, paragraphs 1 and 4, in conjunction with article 18 2, all of the Constitution, with regard to access to traffic data that do not involve intersubjective communication.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

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.