The evolution of technology assists in all areas and even in the fight against crime it is increasingly developed and its effectiveness is crucial in most cases. But how far is it legal?
That’s what we try to understand better through the view of criminologist Michael Pacheco.
If we were to be synthetic and strict on this issue, I would say that in the very near future technological means, for its determining effectiveness, will be the primary means to combat crime more generally, for this the legal and penal system Portuguese will have to evolve to possess an almost perfect dichotomy with the technological sciences.
The evolution of technology fighting crime
In a networked society we live in today, and what globalization has brought us, effective media, through perhaps greatest discovery of mankind, the Internet, crime and criminal means also turned professional, the crime transancionalidade reached unimaginable dimensions, organized, economic and financial crime is on the agenda with money laundering, embezzlement, trafficking in persons and drugs in the first line of the main agents Profit for the international dimension of crime organizations. A society of risk characterized as Ulrich Beck, who translates the idea of a mass society and connection around the world equipped with utensils and large technological evolution means.
Of course, this technological fighting crime will always be in line with technological developments, and is that it does not exist or have existed not, we can spell out immediately the wiretap that came with the appearance of the phone, and WWII they began to make the first tapping.
The wiretapping and their legal limitations
In Portugal the wiretapping can be used as a means the taking of evidence in criminal proceedings, being an effective technological means for its exploitation and crime-fighting at the research stage, as a means of obtaining evidence, that is used on the verge of happening an action that fits in a typical fact cool crime or to prove that particular stock is going to happen or has already happened, not a deterrent and repressive means of crime, basically the use of listening is not so much of crime prevention but in obtaining evidence for use in court . What thereafter immediately raises questions as to its admissibility.
The wiretapping are provided for in Article 187 and 189 of the Penal Procedure Code (PPC ) and are only suitable for use under investigation the suspect or accused or the victim with his consent, by judicial authorization magistrate of the Public Prosecution under Article 32 # 4 of the Constitution of the Portuguese Republic (CRP). For some types of crime more grievous crime, ie one complaint of defamation of Article No. 180 of the penal code, it is assumed not put on wiretapping to obtain proof of this action.
The means of taking of evidence must be proportionate, necessary and appropriate to the type of crime to meet the constitutional standard of legal force present in the Portuguese Constitution (CRP) in its Article 18 paragraph 2, and all of this becomes more difficult when it involves the constitution, the fundamental law of the state, state above a democratic constitutional regime and the fundamental rights of a state. Essentially we talk about drug trafficking, terrorism, violent crime Article 1 paragraph 1, point j) – crimes punishable by a maximum prison sentence or more than eight years – or highly organized Article 1 paragraph 1, point m) – criminal association, corruption, trafficking weapons, trafficking of psychotropic substances, etc.
The wiretap is designed for more severe crime and when, by any other means, it is difficult or impossible to obtain evidence, is a medium that restricts rights freedoms and guarantees represented in Articles 24 and following of our constitution as are the rights to protection of private and family life, the spoken word, freedom of expression, honor, good name and reputation, ie constitutionally protected rights that may be restricted when they meet the requirements of the principles of proportionality, necessity and appropriateness by paragraph 2 of Article 18 of the PRC, and so often in most publicized cases wonder at the non-legality of proof for having been illegally and unconstitutionally, conduct a wire is entering the intimate sphere of human life and therefore requires prior authorization by order of the Public Prosecutor during the investigation stage to the criminal police body which is usually the Judicial Police to make this listening legally authorized, without it harms the target as to their rights.
Digital evidence and the Law of Cybercrime
We also have these days the digital proof, and when I say digital is no fingerprint, but yes digital means (electronic, technological and other compared), and then enter the area of cybercrime, which, however, Portugal has the Law No. 109/2009 of 15 September, considered the law of cybercrime, where they found some computer crimes such as false information, damage to software, computer sabotage, unlawful reproduction of protected program among others.
Here is another difficulty. If the wiretap has restrictions on their constitutional admissibility in cybercrime exists the difficulty of the run time of the crime. As is known, the computer level, everything is very fast and does not require physical presence, the author may be in a country anywhere in the world and commit a crime in Portugal through computerized and highly advanced technology, the evidence is momentary in that space of time has elapsed. After lost by the cyber environment and sometimes is even disguised this same medium. And this is where we are today.
There will be legal solutions?
The legal and penal system despite having already found legal solutions to the legislative level in the composition of laws and regulations that can predict almost everything in the face of technological change, the means with which they have the forces and security services that address the investigation stage, strongly dedicated to proof of registration and collection of evidence, are insufficient in terms of technological and human resources, despite the work be recognized value, there is capacity to do more, there do more than duty and, therefore, it is necessary to provide these same forces of knowledge and technological means and it starts up by the universities where knowledge and innovation are present.
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