Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

Législation - procédure



Section 131
Whoever kills another person shall be punished with imprisonment from 8 up to 16 years.

Section 138
Exposure or Abandonment
1. Whoever endangers the life of another person :
a) exposing him/her in a place that subjects him/her to a situation from which he/she cannot defend himself/herself on his/her own : or
b) abandoning him/her, defenceless, whenever the perpetrator had the duty to watch, keep vigilance over or assist him/her, shall be punished with imprisonment from 1 up to 5 years.
2. If the fact is committed by an ascendant, a descendant, an adoptive parent or an adopter of the victim, the perpetrator shall be punished with imprisonment from 2 up to 5 years.
3. If the fact results in :
a) a serious assault on physical integrity, the perpetrator shall be punished with imprisonment from 2 up to 8 years.
b) death, the perpetrator shall be punished with imprisonment from 3 up to 10 years.

Section 161
Abduction
1. Whoever abducts another person by means of violence, threat or artifice in order to ;
a) submit the victim to extortion ;
b) commit an offence against the victim's freedom and sexual self-determination ;
c) obtain a ransom or reward ; or
d) force the Public Authorities or a third party into committing an act or omission, or into supporting an activity ;
shall be punished with imprisonment from 2 up to 8 years.

2. Whenever the situations provided for :
a) in subsection 2 of Section 158 apply, the perpetrator shall be punished with imprisonment from 3 up to 15 years ;.
b) in subsection of 3 of Section 158 apply, the perpetrator shall be punished with imprisonment from 8 up to 16 years.

3. Whenever the perpetrator voluntarily renounces to his/her goal by releasing the victim, or seriously endeavours to achieve this, the punishment may be particularly mitigated.

Section 254
Profaning a corpse or a burial ground
1. Whoever :
a) without the entitled person's consent, removes, destroys or conceals a corpse or part of it, or the ashes of a deceased person ;
shall be punished with imprisonment up to 2 years or with a Fine, up to 240 days.
2. The attempt is punishable.

Section 131
Ability and duty to testify
1. Any person who is not banned due to mental illness has the ability to be a witness and may decline only when provided for by Law.
2. The Judicial or Prosecuting Authority checks the physical or mental ability of any person to give Testimony, whenever this is required to assess his/her credibility, and without causing any delay to the normal course of the proceedings.
3. In case of a Testimony given by a minor under 18 concerning an offence against the freedom and sexual self-determination of minors, a personality assessment may be conducted.
4. The inquiries referred to in the previous subsections, and ordered prior to the Testimony, do not prevent it from being given.

Section 132
General duties of the witness
1. Unless otherwise provided for by Law, the witness shall be bound to the following duties :
a) To appear in due time and place before the Authority by whom he/she was Legally summoned or subpoenaed, keeping himself/herself at the disposal of that Authority until excused ;
b) To take an Oath when questioned by a Judicial or Prosecuting Authority ;
c) To obey to Legally given instructions on how to Testify ;
d) To tell the truth when questioned ;
2. The witness shall not be bound to answer when alleging that self-incrimination may result from his/her answers.
3. In order to receive summons, the witness may state his/her residence, office address or any other domicile of his/her own choice.
4. Whenever the witness must give Testimony, even in the course of an act that is barred to the public, his/her Lawyer may be present, thus informing hi/her, whenever deemed necessary, of the rights he/she is entitled to, without intervening in the examination.
5. No Lawyer acting as defence counsel for a formal suspect in the proceedings may be present with the witness under the provision set forth in the previous subsection.

Section 135
Professional secrecy
1. Members of the Clergy, Lawyers, Doctors, Journalists, members of credit institutions and any other persons whom the Law allows or imposes professional secrecy, may be excused from giving Testimony on facts falling within it.
2. If there ate reasonable doubts about the legitimacy of the excuse, the Judicial or Prosecuting Authority before which it occurred will carry out the necessary inquiries.
Should the Judicial or Prosecuting Authority, as a result, come to the conclusion that the excuse is not legitimate, it shall then instruct, or request the Court to order that the Testimony be given.
3. The Court superior to the one where the incident arose or, in case the incident arose in the Supreme Court, the plenary meeting of it's Criminal Section may decide that Testimony be given with breach of professional secrecy whenever there is reasonable ground for it, according to the principle that the preponderant interest prevails, namely considering that Testimony is essential to discover the truth, the seriouness of the offence and the need for protection of rights. The intervention is initiated by the Judge, ex-Officio or upon request.
4. In the cases set forth in subsection 2 and 3, the decision of the Judicial or Prosecuting Authority or that of the Court is taken after hearing the representative body related with the profession the secrecy of which is at issue, under the terms and with the efforts provided for in the Legislation applying to that body.
5. The provisions in subsection 3 and 4 do not apply to religious secrecy.

Section 172
Undergoing an examination
1. Whenever a person attempts to avoid or hinder any due examination or providing any object to be examined, he/she may be compelled to do so by decision of the competent Judicial or Prosecuting Authority.
2. The provisions of subsection 2 of Section 154 and of subsection 5 and 6 of Section 156 apply accordingly.
3. Any examinations that are liable to offend a person's modesty must respect the dignity and, as far as possible, the modesty of the person undergoing them. The examination is exclusively attended by the person performing it and by the competent Judicial or Prosecuting Authority, the person to be examined may be accompanied by a person he/she relies on, if no danger arises from a delay, and he/she must be informed of this possibility.

Section 182
Professional or Official Secrecy and Secrecy of State
1. When ordered to do so by the Judicial or Prosecuting Authority, the persons mentioned in Sections 135 to 137 present it with the Documente and any Objects in their possession that must be seized, except when invoking, in writing, professional or Official Secrecy, or Secrecy of State.
2. Whenever refusal is based on professional or Official Secrecy, the provisions of subsection 2 and 3 of Section 135 and those of subsection 2 of Section 136 apply accordingly.
3. Whenever refusal is based on Secrecy of State, the provisions of subsection 3 of Section 137 apply accordingly.

Section 187
Admissibility
1. Intercepting or recording telephone conversations or communications can only be Authorized at the stage of inquiry, whenever there are reasons to believe that this measure is essential to discover the truth, or because evidence would otherwise be impossible or very difficult to obtain, under a substantiated order of an investigating Judge and upon a request submitted by the Prosecution Service, with regard to the following offences :
a) Offences punishabloe with a maximum imprisonment term exceeding 3 years.
4. Irrespective of the holder of the communication means used, interception or recording as provided for in the previous subsections can only be Authorized regarding :
a) a suspect whether formal or not ;
b) any person serving as an intermediary, about whom there are reasonable grounds to believe he/she receives or transmits messages aimed at or coming from a suspect, whether formal or not.

Section 188
Operation-related formalities
1. The Criminal Police body carrying out the interception and recording as referred to in the previous Section draws up the corresponding report and a statement outlining the passages that are relevant as evidence, offers a brief description of the contents therein and explains their significance for discovering the truth.
2. The provisions set out in the previous subsection shall not prevent the Criminal Police body carrying out the investigation from previously taking knowledge of the contents of the intercepted communication, so as to be able to take the necessary precautionary and urgent measures in order to safeguard evidence.
3. The Criminal Police body referred to in subsection 1 informs the Prosecution Service every 2 weeks as from the beginning of the first interception carried out in the proceedings of the corresponding technical equipment, as well as of the respective reports and statements.
4. The Prosecution Service informs the Judge of the elements referred to in the previous subsection at the latest within a period of 2 days.
5. In order to take knowledge of the contents of the conversation or communications, the Judge is assisted, whenever deemed convenient, by a Criminal Police body, and appoints an interpreter, if necessary.
6. Subject to the provisions set forth in subsection 7 of the previous Section, the Judge determines that any technical equipment and statements clearly unrelated to the proceedings be immediately destroyed :
a) whenever they concern conversations in which none of the persons referred to in subsection 4 of the previous Section intervene ;
b) whenever they include information covered by professional or Official Secrecy, or by Secrecy of State ; or
c) whenever their disclosure may cause serious harm to any rights, freedoms and guarantees
all intervening parties shall be bound by secrecy with regard to the conversations that have come to their knowledge.

7. During the inquiry, and upon request of the Prosecution Service, the Judge determines that any conversations and communications essential to substantiate the application of coercive or property guarantee measures, except for the statement of identity and residence, be transcribed and added to the case file.

8. As soon as the inquiry is closed, the Prosecuting party and the Defendant may examine the technical equipment regarding the conversations and communications, and they may obtain at their expense, copies of the Sections they wish to transcribe and add to the case files, as well as copies of the statements referred to in subsection 1, until the limitation period established either for requesting the opening of the investigation, by the investigating Judge or for submitting the defence has expired.

9. The only conversations and communications that are valid as evidence are those :
a) the transcription of which the Prosecution Service ordered to the Criminal Police body carrying out the interception and recording, and indicated as evidence for the Prosecution ;
b) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Defendant, who adds it to the request for the opening of the investigation by the investigating Judge or to the defence ; or
c) the transcription of which, based on copies as mentioned in the previous subsection, is carried out by the Prosecuting party within the limitation period established for requesting the opening of the investigation by the investigating
Judge, even if said party does not request it or is not legitimately entitled to do so.

10. The Court may listen to the recordings in order ot establish whether any corrections need to be made in transcriptions already carried out or new transcriptions need to be added to the case file, whenever deemed necessary to discover the truth and settle the case.

11. The people whose conversations or communications were intercepted and transcribed may examine the corresponding technical equipment until final Judgement is given.

12. Any technical equipment regarding conversations or communications that are not subject to transcription in order to serve as evidence shall be kept in an envelope sealed with wax and held to the order of the Court, being destroyed after the sentence becomes final and binding, thus closing the proceedings.

13. Once the sentence becomes final and binding, as provided for in the previous subsection, the technical equipment that has not been destroyed shall be kept in an envelope sealed with wax, together with the case file, and may only be used if an extraordinary appeal is filed.

Section 189
Extension
1. The provisions in Sections 187 and 188 apply correspondingly to conversations or communications transmitted by technical means other than the telephone, namely electronic mail or other ways of telematic data transmissions, even when kept on digital equipment, as well as to the interception of communications between people present.

2. The gathering and adding to the case file of data regarding cell location or of records regarding conversations or communications can only be ordered or Authorized, at any stage of the proceedings, following a Judicial Order with regard to the offences provided for in subsection 1 of Section 187 and concerning the persons mentioned in subsection 4 of said Section.

Section 269
Acts to be ordered or Authorized by the investigating Judge

1. During the inquiry, the investigating Judge is th eonly Authority competent to order or Authorize :
e) The interception and recordings of conversations or communications as provided for in Sections 187 and 189 ;
f) The performance of any other acts strictly dependent by Law on the investigating Judge's Order or Authorization.

Portimao Judical and Family and Minors' Court
JIC
Investigating Judge
Av. Miguel Bombardo - Pal?io da Justi? - 4 Piso - 8501-960 Portimao?
Phone number : 282460861 Fax number : 282425198 E-mail correio@portimao.tc.mj.pt
Case : 201/07.0GALGS Inquiry (Jurisdictional acts) 3625251
CONC. - 12-12-2007
=CLS=
Request submitted for approval, Page 3593 : examined

The Portuguese Prosecution Service requests that the Telephone Network Operating Companies be instructed to disclose the below-mentioned information concerning the telephone numbers listed on Pages 3593 and 3594, with a view to drawing up and issuing a Letter of Request for Legal Assistance in Criminal Matters :
a) Full identity data regarding the owners of the telephone numbers referred to in point 1 on Pages 3593 and 3594 ;
b) All incoming and outgoing phone calls' records, including text (SMS) and multimedia (MMS) messages, and their respective contents as well, relating to the time period between 2nd May, 2007, 00H00, and 5th May, 2007, 00H00, in respect of the telephone numbers referred to in point 1 on Pages 3593 and 3594 ;
Page 141
cr2_141
c) Full identity data regarding the owners of the telephone numbers referred to in point 3 on 
Page 3594, and relating to communications made by Robert Murat ;
Thus, in order to substantiate the above request, it should be adduced that the above pieces of information are essential in order to make it possible to further pursue the investigation.
Let this be carefully considered.
Within this case, the investigation is being conducted into facts liable to fit the commitment of such Crimes as Abduction, Homicide, Exposure or Abandonment, and Body Concealment.
Having examined the case files, and with a view to identifying the person(s) that may have been involved in the above-mentioned Crimes, I think there are no possible measures to be taken other than the requested action. Thus, disclosing the information above specified is therefore deemed as vital to establish the truth and possibly identify the perpertrator(s) of the above Crimes.

Under the present circumstances, and as shown by the case reports, we might say that, for the time being, the investigation has reached an impasse, where it seems no progress can be made or no advance is possible ; for that reason, the pieces of information being asked for by the Portuguese Prosecution Service should be released by the Telephone Network Operating Companies, as it would happen in Portugal if that were the case, in view of the fact that, as already highlighted, obtaining such information may well lead to identify the perpertrator(s) of said Crimes, as provided for in subsection 1 of Section 187 of the Portuguese Code of Criminal Procedure.
It should be added that the requested information relates to offences and persons specifically listed and referred to in letter a) of subsection 1, in letters a) and b) of subsection 4, of Section 187, and in subsection 2 of Section 189, of the Portuguese Code of Criminal Procedure.
Thus, under the provisions set forth in Sections 135 and 182, in letter a) of subsection 1, and in letters a) and b) of subsection 4, of Section 187, in subsection 2 of Section 189, and in letter e) of subsection 1, of Section 269, of the Portuguese Code of Criminal Procedure,

I hereby Authorize that action be taken in order to obtain the above-mentioned information (except in what regards the contents of the text (SMS and multimedia (MMS) messages) and that the data so gathered be subsequently included in the reports, such action being taken by means of a Letter of Request to be drawn up and sent by the Portuguese Prosecution Service.
A Certified copy of this Judicial Order is to be attached to the previously mentioned Letter of Request.

The case file is to be sent on to the Prosecution Service.
Portimão, December 12th, 2007
Signed :
(Pedro Frias, Investigating Judge)