ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Madeleine Beth McCann went missing from PDL in Portugal on the 3rd May 2007, there are so many unanswered questions, please discuss

Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby santacoloma » Wed May 28, 2008 6:37 am

GM HawkEyes
Congrats on finding and posting the appeal ruling about mobile comms. In layman's language, does it mean that the content of SMSs and phone calls cannot be accessed, but the PJ/Prosecutor is allowed to know the identity of the people who owned the phones that sent/received the messages? And the times and locations of the calls?
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 6:57 am

clear wrote:Sky news have slightly changed their report from yesterday - from 'unable to go' to 'refused to go.'

Many thanks, clear, for letting me know!

I will check it out and will add a note to the change at the end of the Sky News report..
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 7:47 am

blossom wrote:Thanks HawkEyes for your continuing fine work on this thread.

There's also a guardian link posted on the Main Thread which says they all refused to attend (not just 4). May be worth adding to this thread.

I finally tracked down the Guardian reference, blossom, to the following link:

http://www.guardian.co.uk/uk/feedarticle/7543852

Apparently it is a copyrighted press release from the Press Association, not one of their own articles, and as I thought it was a statement from Clarence Mitchell, saying that they all had agreed not to return to Portugal for the reconstruction.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 8:04 am

santacoloma wrote: ... In layman's language, does it mean that the content of SMSs and phone calls cannot be accessed, but the PJ/Prosecutor is allowed to know the identity of the people who owned the phones that sent/received the messages? And the times and locations of the calls?


Exactly, santacoloma, you've summed it up well!

Astro on another thread succinctly provided the rationale for this ruling and expanded this further, after reading the full contents of the ruling, that "the PJ were denied access ONLY to the contents of the communications. This is supported on two legal aspects: a) that in Portugal it is illegal to record any conversations unless there is a court order allowing for this to happen, hence the service providers would have committed a crime if they recorded the contents of the text messages in the first place; and b) that the PJ can only access data that is part of every citizen's reservation of private life, after they obtain a judicial warrant to do so, and never in a retrospective manner, i.e. they cannot access the contents of private communications that took place before the court order was issued."

So this ruling is not as devastating as it first looked!
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 8:17 am

clear wrote:Sky news have slightly changed their report from yesterday - from 'unable to go' to 'refused to go.'


Here is the updated Sky News article for the record, which includes a title change from "Madeleine Reonstruction Abandoned" to "Madeleine Instruction Called Off," as well as the addition of Clarence Mitchell's comments, whereas in the earlier version there were only Martin Brunt's statements:

Madeleine Reconstruction Called Off Instead of Abandoned!
Updated:23:44, Tuesday May 27, 2008

A reconstruction of the night Madeleine McCann disappeared has been scrapped after members of the so-called "Tapas Seven" refused to take part. Instead of saying that they were unable to be there!

Portuguese police had invited Gerry and Kate McCann back to Praia da Luz to take part in the event later this week along with the friends they were dining with when Madeleine vanished on May 3, last year. New piece, the usual repetition!

The McCanns' spokesman said the decision had been taken by all of the couple's friends.

Clarence Mitchell said: "The friends had a number of serious questions about the value of the reconstruction and what it would do to help find Madeleine.

"After some discussion, they have informed the Portuguese authorities that they do not intend to go back."

He added: "Gerry and Kate have not refused to go back. They were aware of their friends' view and they are now not needed for the reconstruction."

Mr Mitchell said there were questions over the usefulness of a reconstruction more than a year after the event and how it would help find the four-year-old if it was not to be televised.

"Frankly," he insisted, "the police and the authorities in Portugal did not answer the simple question: What will this do to help find Madeleine? And that is why this proposal did not have legs."
Entirely new section, obviously at Mitchell's request!

It is the second time it has been put off and the McCanns have always been reluctant to take part.

The couple are still considered official suspects or 'arguidos' in the case.
New piece, as a reminder of their status!

Sky's Martin Brunt said: " It was only a request from the Portuguese police, not a demand.

"The McCanns felt that many months ago their own suggestion of a reconstruction had been turned down.

"They felt that there would only be a good reason to hold such a reconstruction if it was used as a widely televised appeal for help and information."

http://news.sky.com/skynews/article/0,,30200-1317341,00.html


Edited to add differences in red and highlight new sentences between the original and the updated versions only
Last edited by HawkEyes1 on Wed May 28, 2008 8:38 am, edited 4 times in total.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby tylersmum » Wed May 28, 2008 8:29 am

HawkEyes1 wrote:Google translation from Portuguese into English of a key court document in the , published on April 29, 2008, which appears not to have been found by any investigative journalists in the UK. It deals with interception of email, text messaging, and telephone calls and will affect evidence in the McCann Case:

Criminal Section of the Court of Appeal of Evora

PRIOR AUTHORIZATION ORDER

Date of agreement: 29/04/2008
Votes: Unanimous
Full Text: S

Half Procedure: CRIMINAL APPEALS
Decision: NOT PROVIDED

Summary:
1 - The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

2 - The data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past, because that embodies a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into liability crime (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

3 - Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art . 187. Of the CPP.


Decision Full Text:
Agree, on a conference in the Criminal Section of the Court of Appeal of Evora

1. In the case of inquiry No /, pending Ministry of Public Services in the District ofÔǪ where investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpses, the Portuguese. Mr Public Prosecutor holder of the process of investigation, under invocation of the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. ┬║-A and 269. thereof No. 1, alin. e) of the CPP, promoted, among other steps, if requested at 3 national mobile telephone operators (TMN, VODAFONE and OPTIMUS) to send in digital media (CD or DVD), the complete listings of telephone traffic for calls made and received in the period of time between the day April 28, 2007 until September 9, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following telephone numbers:

(Here are 10 phone numbers)

::::::

-- No, not yet identified phone during that on 02 May 2007 sent 14 SMS messages written to GM and 4 other the day after the disappearance of MM

-- If requested from the mobile telephone operator TMN, sending in digital media (CD or DVD) of the complete listing of telephone traffic referring to calls made and received in the period of time between 20:00 M of the day 03 of May 2007 and 12.00 M of the day 04 of May, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following phone numbers:

:::::::::::::

2. However, Mr Judge of Criminal Procedure, by its order of 24.09.2007, did not authorize the shipment on digital media (CD or DVD) of the contents of any message sent or received on SMS or MMS when it comes to all phone numbers above, for, in his view, this would mean taking note of the contents of the conversation or telephone communication has already made without there being any judicial ruling prior to authorization, and by inexistir legal support for the defendant (see fls. 12 of these file) .

3. Inconformado with so decided, the prosecutor brought this action under constant fls.1 to 7, drawing the motivation that made the following conclusions:

"1 - Our dissentimento refers to scholarly order of the Judge M. ┬░ of Criminal Procedure, fls. 2687 to 2689, in that they did not authorize "the consignment on digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS.

2 - There is no reason to distinguish, as the distinguished Judge M. ┬░, the two kinds of communications - content of SMS and MMS traffic and listings of telephone calls received regarding effected. Where the law does not distinguish, because no one is distinguished.

3 - The right to the reserve of their privacy does not run greater risk of being injured by access to the content of SMS or MMS than by knowledge of the precise circumstances of time, place, method and frequency of calls received and made.

4 - If the procedural law refers to the use of communications already made, it expressly for the permit, as follows linear and clearly the requirements of paragraph l of art. 189 of the CPPenal.

5 - To preserve the reserves of their privacy of the interlocutors of SMS or MMS in this case, obviating, through its judicial control, to any improper intrusion that intimacy, simply to Judge M. ┬░ make use of established in paragraph . Paragraph 3 of art. 179 of the CPPenal, subject to own and prior knowledge of their content the ability to use as evidence of SMS and MMS.

6 - By not allowing access to the content of SMS and MMS, the scholarly order infringed the provisions of arts. 179 ┬░, 187 ┬░ and 189 of the CPPenal.

Accordingly, repealing, noted in part, the scholarly order and ordering its replacement by another requesting the three national mobile telephone operators in the consignment digital media (CD or DVD) of the contents of any message sent or received and by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, in compliance with specified in paragraph 3 of art. 179 ┬░.. "

4. The appeal came to be accepted by order of 21.12.2007, following a complaint lodged in this ratio (see fls.15).

5. Mr Judge maintained the order, saying, in essence, the following:

"The taking of knowledge of the content of communications made by SMS or MMS's, because it is held communication through telephone, necessarily requires the prior judicial authorization and you will result from interception and held authorized by that order on the communication in course.

From my point of view and unless all due respect we can not make any equivalence between data traffic (eg, those on the lists of numbers dialed and received) and data content (those related to the content of communication, the exchanged words) for the purpose of treating the same way and that by the very nature of each other, is not it know that they, on X, the particular time, a communication between the numbers Z and K, in particular place (data traffic) and know what there is nothing, combined or discussed.

Absence any phone legitimately seized also does not seem legal to use the rules concerning the seizure of correspondence failing that, by that way, being relegated to the demands placed on the interception of communication in progress, what would happen if the carrier ordered that send, if technically feasible, the content of those communications made through the phone.

Finally, the argument 'stored in digital form' refers to communications made by any technical means other than the telephone, eg. e-mail, real-time computer network and so on., and it is not here, unless all due respect, any application. "

6. In this instance, the Portuguese. Mr Attorney General, in his scholarly fls.22 opinion of the 97, is the understanding that the appeal should be dismissed as manifestly unfounded.

7. It met the provisions of art. 417. Article 2 of CPP, was not made any response. Harvested legal visas and held the conference, it decides.

8. Question to consider.

Given the conclusions presented by the applicant's motivation, the issue is to decide only the question whether it is permissible to request the three national mobile telephone operators to refer to digital media (CD or DVD) the content of any message sent, or received by SMS or MMS and their content in terms of all the phone numbers appearing on the fls. 2681 and 2682, with reference to specified periods of time there.

For example:

First of all, interest reporting some lessons on issues relating to secrecy of telecommunications, what is at stake and advance the principles and relevant normação.

The concept of electronic communication is not provided for in the area of criminal law, but is defined in art. . 2 No. 1, alin. a) of Law No. 41/2004, from August 18, which regulates the processing of personal data and privacy in the electronic communications sector. Does this rule is that electronic communication "or sent any information exchanged between a finite number of shares using an electronic communications service accessible to the public." It is a very broad and comprehensive concept that the law itself considers worth only "for the purposes of this law."

Rather, telecommunications is a concept that no current law sets. The legal system uses it, for example, the text of paragraph 2 of art. 194. Penal Code, but not down. Unlike in the past laws, repealed today, setting up telecommunications. Thus, Law No. 91/97, August 1, which defined the basis that the general followed the establishment, management and operation of telecommunication networks, said in his art. 2. Thereof, that "by telecommunications means the transmission, reception or transmission of signals, representing symbols, writing, images, sounds or information of any nature by wire, for optical systems, for radio and other electromagnetic systems." However, this law was repealed, except for a small part of its articles, by point a) of art. 127. Of the Law No. 5 / 2004, February 10 (Law of Electronic Communications).

However, the latter law does not define telecommunications. Moreover, this being the degree of legal structural framework of this sector of activity, it is significant that he has not devote any definition of telecommunication, within the definitions listed in your art. 3. Thereof.

Having repealed a piece of legislation that incorporated the first of these definitions, has to do here is a choice of the legislature that, perhaps, chose not to be bound by a legal definition that could quickly become technically outdated. [1]

It should be recalled that in telecommunications services, it is distinguished three species or types of data or information: (i) the so-called data, on the network connection, (ii) the so-called traffic data, functional data necessary for the establishment of and a connection or communication generated by the use of the network (eg. location of the user, location of the recipient, duration of use, date and time, frequency) and (iii) the so-called data content, concerning the contents of the communication or the message [2].

Moreover, since the various telecommunications services used for the transmission of communications verbal or otherwise (written messages, data on packages), the elements inherent to the structure may still in a sequential composition in four times: (i) the stage prior to the statement, (ii) the establishment of communication, (iii) the stage of the communication itself, and (iv) the further communication. For the first time, are essentially on the data, while in the other, it is the consideration of traffic data and content.

The basic data are, in the perspective of users, the information needed to access the network, particularly through the linking individual and for use of their own service - interest here, in essence, the number and data through which the user has access the service.

These elements (such as identifying the user and its postal address) are provided to the operator of the service for the purpose of establishing the agreement (the contract) for connection to their network or assigned by this that (the number of access); data such as personnel who are, the holder on them should have the right to reserve, especially as regards the entry of such elements in public directories (ie, the schedules public telephone or other telecommunication services complementary). This reserve provides that the inclusion of such elements in the lists public should be voluntary.

This reserve on the numbers of post or access - to be right of users - prevents the public dissemination and the consequent possibility of public awareness of the number of access of a user, so, essentially, to avoid, of their own volition, some situations of interference that can occur in cases of harassment trade: constant repetition and disturbing, 'marketing' telephone, use of lists of direct advertising by companies and enterprises of polls.

The reservation on the basis of elements, wanted to, in essence, prevent the tranquility of their own interest against possible intrusions or greater by the public disclosure of such information, evidence perhaps, also, moreover, that should not be used, unless explicit authorization other than by the network operator, justifying the existence of such limits as to the disposal of the items for commercial purposes of telephone or other telecommunication services complementary.

Unlike of the basic (elements necessary to establish a basis for communication), which falls short before, preliminary and are instrumental in any communication, called elements of traffic (functional elements of communication), as the elements of such content, already has to do directly with the Commission, either on their identificabilidade, either on the content of the message itself or communication.

Elements or functional data (traffic) required or produced by the establishment of the link through which a communication concrete, with certain content, is operated or transmitted, are the origin, destination and route. These elements functionally necessary to the establishment and management of communication identify, or identifying the communication: when preserved, facilitating the identification of communications between the issuer and the recipient, date, time, the frequency of connections made

Thus vital elements already inherent in the communication, as they will identify in real time or after the event, users, the direct relationship between them over the network, the location, frequency, the date, time and duration of communication, should join the guarantees that are subject to use the service, especially all that respects the confidentiality of communications.

It makes sense that is the subject of secret information that lets you know who talked to whom and the circumstances in which time these conversations took place and the time it took and the frequency with which it happened.

Finally, the elements of content - data on the actual content of the message, the correspondence sent by the use of the network. Having to do with the content, the protection and guarantee against any intrusion, interception or deciphering the message by unauthorized person is a core element of users of the system - and is obliged to ensure the operators, so rigorous, using all technical means , The secrecy of communications services.

It can not fail to take into account that the confidentiality of correspondence and telecommunications raises security firm, entered, first in the constitutional text.

Indeed, according prevented in paragraphs 1 and 4 of art. 34. Thereof, the CRP, the home and the confidentiality of correspondence and other private means of communication are inviolable, and prohibited all the interference of public authorities in correspondence, telecommunications and other media, saved the cases provided by law in matters of criminal prosecution.

The prohibition of interference includes the freedom of sending and receiving correspondence and the prohibition of detention or seizure, as well as interference, which extends not only to public entities but also, and a fortiori, to private entities.

The restrictions are thus allowed only in criminal proceedings and are also subject to law (Article 18. Article 2 and 3) and can only be decided by a judge (Article 32. Article 4).

The matrix constitutional forms, in this thematic area, marked by the contingency of solutions to the ongoing conflict between the unstoppable technological progress and the values inherent in the human person that are always, like a right to speak and communication, corollary of the right to freedom individual.

The guarantee of confidentiality covers not only the content of the letter, but the traffic as such (species, time, duration, intensity of use).
.
Under the requirements of paragraph 4 of that art. 34. Thereof, the right to secrecy of telecommunications involves the ban on devassa of its content and its disclosure by those who have access to them, including the employees of telecommunications services, who runs a duty of professional secrecy, as a guarantee of the right to secrecy of the same telecommunications, which may not be infringed.

This item is all the more relevant constitutional as a matter of criminal prosecution for exceptions to the inviolability of telecommunications are not the rule, or rather, are counter-rule. Indeed, the ordinary law stands, even in matters of criminal procedure, the interference in telecommunications is only allowed in cases of the type of crime correspond to the legal catalogue of crimes whose seriousness and social relevance of social peace that allows interference (see Art. 187. of the CPP).

It has been well in sight, with the prohibition of speech interference, safeguarding the freedom to communicate and a ban on intervening in it.

Hence, in fact, reflecting the growing prominence and sequente protection in shaping those fundamental values such as the Penal Code has charged conduct violation, namely the right of citizens to the statement aside, the secrecy of communications.

Indeed, under the heading of crimes against reserve of privacy, or the devassa the privacy or the violation of correspondence and telecommunications, are typically illegal behavior - art. 192. ┬║ and 194. Of the PC.

Confidentiality of telecommunications is thus tend absolute, giving only the cases provided by law on criminal procedure, that is, as a means of acquiring evidence.

The security of the reserve of privacy results also ban the use of evidence obtained in violation of the secrecy of privacy.

For the prosecution to C.R.P. provides in art.32. Article No. 8, which "are void all evidence obtained through torture, coercion, harm the physical or moral integrity of the person, improper intrusion into private life, at home, in correspondence or in telecommunications" .

The art.126., Paragraph 3 of the Code of Criminal Procedure considers, in turn, that 'except as otherwise provided by law, are also void and can not be used, the evidence obtained by intrusion into privacy, with home, in correspondence or in telecommunications without the consent of its owner.

With technological progress, the inviolability of the media and private telecommunications secrecy increasingly linked with the data processing elements or by the side of users involved, in their dealings with telecommunications service providers.

Thus the art. . 4, paragraph 1 of Law No. 41/2004, from August 18, which transposes into national law Directive No. 2002/58/EC of the European Parliament and the Council of June 12 Concerning the processing of personal data and the protection of privacy in the electronic communications sector, states that "companies that offer networks and electronic communications services or to ensure the inviolability of communications and traffic data by means of public communication networks and electronic communications services accessible to the public "and is" forbidden to listen, the installation of listening, storage or other means of interception or surveillance of communications and related traffic data by third parties without the prior express consent of users, except in cases provided for by law "(2).

Paragraph 3 of Article stipulates, however, that "the provisions of this Article shall not prevent the legally authorized recordings of communications and the related traffic data, when carried out under lawful business practice, done for the proof of a transaction commercial or any other communication made under a contractual relationship since the data subject has been informed and given their consent. " And the No. 4 also authorizes the recordings of communications to and from public services to provide emergency situations of any kind.

In modern transmission systems, registration of personal data on the telephone traffic and billing is done by the corresponding operator of the service at the end of phase dynamics of the flow of dialogue or communication (see, if Portuguese, Articles 6 and 7 of Law No. 41/2004, August 18).

This registration is intended first and foremost to recover from the customer, but can serve for researchers to find items stored in databases on the authors of the communication, the time that was done, the place, the volume and duration of telephone traffic . In such cases, the communications are made, the data shows only the existence or the historical flow of dialogue, that is, the earlier phase dynamics.

The "traffic data" are now defined in art.2. Thereof, al. d) of Law No. 41/2004, from August 18, as "any data processed for the purpose of sending a communication through an electronic communications network or for the billing it", stating paragraph 2 the art.6. thereof, of this law some of the elements that are part of that concept.

While the data, connecting to the network, are preliminary and instrumental elements of any communication, which are subject to secrecy if the user has requested a confidentiality regime in the service of telecommunications, data traffic are already elements inherent in the communication , Allowing real-time or post identify users, the direct relationship between them over the network, the location, frequency, the date, time and duration.

Users are not only subscribers who have a contract with telecommunications services, as others that have electronic linkage with the number of subscribers.

[color=#FF0000]Law No. 41/2004, still treats the location information that defines [art. . 2 No. 1, alin. e)] as "any data processed in an electronic communications network that indicate the geographical location of the terminal equipment of a subscriber or any user of an electronic communications service accessible to the public."

Knowledge of data revealing the so-called "mobile location" of the phone of a particular individual shows him on the physical journey that it did - or is doing - or reveals their mobility or stay in one place. In other words, the "mobile location" reveals, through the observation of its connection to the mobile telephone network, the location of the owner of a telephone set. Learn the location cell "has the same view evidence and the same effectiveness of a traditional surveillance by police officers on a particular individual, even though the latter may be more intrusive (to allow anyone to place collect more information, particularly concerning the privacy of the person under surveillance) that the so-called "mobile location."

The Attorney General's Office, in its opinion No. 21/2000 (DR, Series II, August 28) in completing 2. Rd, expressed his understanding that the investigation phase of the information, ".. . when attaching to traffic data or the data content, can only be provided to the judicial authorities, by telecommunications operators on the terms and the way in which the law of criminal procedure allows the interception of communications, depending on order or authorization of investigating judge (Articles 187. thereof, 190. ┬║ and 269. of paragraph 1, point c) of the Code of Criminal Procedure
[/color]. "

Also Gomes Canotilho and Vital Moreira argue in annotation on art. 34. Of the CRP, which guarantee the right to confidentiality of correspondence and other means of private communication (Nos. 1 to 4) covers all kinds of correspondence from person to person (postal letters, printed), covering the same chances of orders that do not contain any written communication, and all telecommunications (telephone, telegram, fax, etc).

The guarantee of confidentiality covers not only the content of the letter, but the actual "traffic" as such (species, time, duration, intensity of use). Under the rules of art. 34. Thereof lies the so-called "electronic mail" because the insurance covers the correspondence certainly kept the matches via telecommunications.

The sending of electronic messages from person to person ( "email") meets the conditions of private correspondence. () Here the restrictions are allowed only in criminal proceedings (No. 4), and are also subject to law (art.18. Thereof - 2 and 3) and can only be decided by a judge. -- CF. Constitution of the Portuguese Republic Anotada, 2007, vol. I, pp. 544.

The distinction between communications traffic data, and its content is, today's irrelevant, since the Law 41/2004, of August 18, equates the traffic data to the data content for the purpose of ensuring the inviolability of communications. The assimilation of data content, which are the core of the most fundamental communication, and data traffic in order to protect the secrecy of telecommunications subject to obtaining such data to the system of interception and recording of conversations and telephone communications poured in art. 187. Of the Code of Criminal Procedure.
In terms of the criminal process art.269. Thereof No. 1, al. e) of the Code of Criminal Procedure states that during the investigation it is solely to the investigating judge to order or authorize the 'interception, recording or recording of conversations or communications, in accordance with Articles 187. ┬║ and 189. ".

The art.187. C.P.P. of the down the admissibility of the interception and recording of conversations or telephone communications, specifying the crimes for which it is possible to carry out bugging. The art.189. Thereof, of the same Code provides for the extension of the scheme provided for in Articles 187. ┬║ and 188. Of the talks or communications transmitted by any technical means other than the telephone, including e-mail or other forms of data transmission via telematics, even though it is stored in digital form, and the interception of communications between these.

In other words, it is only possible to intercept electronic communications not telephone the same conditions in which it allowed the conduct of telephone interceptions.

A communication, by its nature is a dynamic reality: vai on one side to another, between a transmitter and a receiver. By definition, while communication can not be saved. If anything, can be saved to register it.

This is the case, for example, with an e-mail. It is a communication networks while travelling in between the computer of origin and destination, but then when it comes to the latter, there is stored in the form of computer file, until it is eliminated.

The short message service (SMS) and multimedia messaging service (MMS) are, respectively, in conveying information in small text messages, and messages with sound, image and video, either through the Internet, either through telephone.

Thus, the data content, such as the content of the messages may be intercepted in real time, with due judicial authorisation and did not belong to ask operators of mobile network operating in Portugal the consignment on digital media (CD or dvd) the content of communications and messages sent and received between certain phones in a given period of the past because, as the Ambassador. Mr Prosecutor - General, embodies such a request on a reality that, from a legal perspective, can never have happened, on pain of possible incursion into criminal responsibility (Article 192. ┬║ and 194. Penal Code), who has (have) done or allowed to consummate consumasse.

It is not so much what the order of support of Mr. Judge defendant has said about the hypothetical possibility of such a technique have taken place because the technical possibility always exist, but the legal impossibility of the data content of the messages and communications or, if they existed, were subject to registration and recording. Because these can only be achieved by placing prior technical means of interception and recording of the content of the messages in question, which always lack of evaluation of their legality by the investigating judge, either in terms of eligibility, either in terms of need , Appropriateness and proportionality.

Nor can the content of messages sent or received possibly through the phones in hand, in the period from the day April 28, 2007 and September 9 of that year, have been subject to interception, registration and recording of any operator , Lacks legal basis, in part, reduced the claim by prosecutors at 1. Rd proceedings and contends that on appeal.

Indeed, the data content of communications or messages conveyed through telephone or between these devices and computers and vice versa, can only be legitimate and lawful interception of communications under ongoing, verified the requirements prevented in art. 187. Of the CPP.

So - without further lengthy considerations - it is said to be that the appeal must be dismissed.

9. Given the above, to judge rejected the appeal by the prosecutor, while maintaining a consequence, the order.

There are owed fees.

(Success by computer and read and reviewed by the rapporteur)

Evora, 2008.04.29
Fernando Ribeiro Cardoso

_____________________________

[1] - Sic, Pedro verdelho, the seizure of e-mail of Criminal Procedure, Journal of Public Prosecution, No. 100, pag.156.
[2] - Opinion No. 21/2000 of the Attorney General's Office, apud YVES POULLET and FRAN├çOISE WARRANT, "Nouveaux compl├®ments au service tel├®phonique et protection des donn├®s: ├á la recherche d'un cadre conceptuel ', in Droit de L' Informatique et des T├®l├®coms, 7├®me year, 1990/91, 1, pp. 19 and SS.


http://www.dgsi.pt/jtre.nsf/c3fb530030ea1c61802568d9005cd5bb/1d0c394965dccdf780257448004a568e?OpenDocument



The ruling appears to me to read that location information(triangulation) and billing information (such as who called whom) is classed as communications data under Portuguese law and therefore a judicial order is needed to access it.
This does sound a bit restrictive to me.

The PJ could already be in possession of the imformation as to who made the calls and in some cases content as this imformation could have been provided by British police for "investigative purposes".
We are barred by law from handing over the information for use in court and this application could have been a way for the PJ make this information evidential
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 9:29 am

tylersmum wrote: ...The ruling appears to me to read that location information(triangulation) and billing information (such as who called whom) is classed as communications data under Portuguese law and therefore a judicial order is needed to access it. This does sound a bit restrictive to me.

The PJ could already be in possession of the imformation as to who made the calls and in some cases content as this imformation could have been provided by British police for "investigative purposes".

We are barred by law from handing over the information for use in court and this application could have been a way for the PJ make this information evidential


As I had posted earlier, quoting astro, ... the PJ were denied access ONLY to the contents of the communications. This is supported on two legal aspects: a) that in Portugal it is illegal to record any conversations unless there is a court order allowing for this to happen, hence the service providers would have committed a crime if they recorded the contents of the text messages in the first place; and b) that the PJ can only access data that is part of every citizen's reservation of private life, after they obtain a judicial warrant to do so, and never in a retrospective manner, i.e. they cannot access the contents of private communications that took place before the court order was issued.

It is my understanding that the PJ were already working on triangulation before this issue came up and that they know who made the telephone calls and that he was 24 km away from Praia da Luz, instead of 4 km, as alleged by Gerry McCann (see Numbers section of the ILLUSTRATED GLOSSARY) at:

http://3as.madeleinemccann.org/viewtopic.php?f=5&t=5772&st=0&sk=t&sd=a

Also all the telephone numbers, as well as the names of the persons contacted and the times of the calls or text messages, will be known.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby tylersmum » Wed May 28, 2008 9:42 am

HawkEyes1 wrote:
tylersmum wrote: ...The ruling appears to me to read that location information(triangulation) and billing information (such as who called whom) is classed as communications data under Portuguese law and therefore a judicial order is needed to access it. This does sound a bit restrictive to me.

The PJ could already be in possession of the imformation as to who made the calls and in some cases content as this imformation could have been provided by British police for "investigative purposes".

We are barred by law from handing over the information for use in court and this application could have been a way for the PJ make this information evidential


As I had posted earlier, quoting astro, ... the PJ were denied access ONLY to the contents of the communications. This is supported on two legal aspects: a) that in Portugal it is illegal to record any conversations unless there is a court order allowing for this to happen, hence the service providers would have committed a crime if they recorded the contents of the text messages in the first place; and b) that the PJ can only access data that is part of every citizen's reservation of private life, after they obtain a judicial warrant to do so, and never in a retrospective manner, i.e. they cannot access the contents of private communications that took place before the court order was issued.

It is my understanding that the PJ were already working on triangulation before this issue came up and that they know who made the telephone calls and that he was 24 km away from Praia da Luz, instead of 4 km, as alleged by Gerry McCann (see Numbers section of the ILLUSTRATED GLOSSARY) at:

http://3as.madeleinemccann.org/viewtopic.php?f=5&t=5772&st=0&sk=t&sd=a

Also all the telephone numbers, as well as the names of the persons contacted and the times of the calls or text messages, will be known.


This bit seems to put "traffic data" and "data content" on the same level;
Quote;
The Attorney General's Office, in its opinion No. 21/2000 (DR, Series II, August 28) in completing 2. Rd, expressed his understanding that the investigation phase of the information, ".. . when attaching to traffic data or the data content, can only be provided to the judicial authorities, by telecommunications operators on the terms and the way in which the law of criminal procedure allows the interception of communications, depending on order or authorization of investigating judge (Articles 187. thereof, 190. ┬║ and 269. of paragraph 1, point c) of the Code of Criminal Procedure."

Incidentally thank you for the hard work that must have been expended translating the ruling
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby MalCat » Wed May 28, 2008 9:56 am

Many thanks for posting and translating this. Much to read and digest.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby HawkEyes1 » Wed May 28, 2008 10:00 am

tylersmum wrote: Incidentally thank you for the hard work that must have been expended translating the ruling

I am afraid I can't take the entire credit, tylersmum. I looked up the ruling and then copied it and downloaded it into the Google translator. There I hit the maximum translation size allowable and found in the middle of a paragraph everything after was still in the original Portuguese! I finally split the document into two and downloaded each section into Babelfish to piece together and get the finshed product.

If you haven't used Google's translator, click on the link below and you are ready to go:

http://translate.google.com/translate_t

It works well for the Portuguese into English, but I must say I prefer my own English translations of French articles to Babelfish's versions. They can be a little weird!
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby blossom » Wed May 28, 2008 10:56 am

[quote="

Also all the telephone numbers, as well as the names of the persons contacted and the times of the calls or text messages, will be known.[/quote]

Great work as always - thanks.

I'm not so sure about this. On one of yesterdays reports it said that one of the mobile phones was yet 'unidentified'. It reads as if the PJ don't know who owned it.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby MalCat » Wed May 28, 2008 10:58 am

... investigates the disappearance of MM and the possible occurrence of crimes of kidnapping, murder, exposure or abandonment of minor and concealment of corpses, the Portuguese. Mr Public Prosecutor holder of the process of investigation, under invocation of the provisions of art. 15. Article 2 of Law No. 88/89 of September 11, 187. Article 1, alin. a) and 4, alin. a) and b), 252. ┬║-A and 269. thereof No. 1, alin. e) of the CPP, promoted, among other steps, if requested at 3 national mobile telephone operators (TMN, VODAFONE and OPTIMUS) to send in digital media (CD or DVD), the complete listings of telephone traffic for calls made and received in the period of time between the day April 28, 2007 until September 9, 2007, including location and mobile trace-back, as well as on roaming calls and SMS and MMS messages and their contents, the following telephone numbers: ....


Note the start date of the request ... shows that premeditation is almost certainly going to be among the charges. Bring 'em on, Mr Public Prosecutor ...
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby traveller » Wed May 28, 2008 11:00 am

Hawkeyes, thank you for these wonderful translations this research must have taken you hours to complete.

Keep up the good work Image
I am still asking, what have you done with your child?
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby SirRobert » Wed May 28, 2008 11:26 am

HawkEyes1 wrote:
santacoloma wrote: ... In layman's language, does it mean that the content of SMSs and phone calls cannot be accessed, but the PJ/Prosecutor is allowed to know the identity of the people who owned the phones that sent/received the messages? And the times and locations of the calls?


Exactly, santacoloma, you've summed it up well!

Astro on another thread succinctly provided the rationale for this ruling and expanded this further, after reading the full contents of the ruling, that "the PJ were denied access ONLY to the contents of the communications. This is supported on two legal aspects: a) that in Portugal it is illegal to record any conversations unless there is a court order allowing for this to happen, hence the service providers would have committed a crime if they recorded the contents of the text messages in the first place; and b) that the PJ can only access data that is part of every citizen's reservation of private life, after they obtain a judicial warrant to do so, and never in a retrospective manner, i.e. they cannot access the contents of private communications that took place before the court order was issued."

So this ruling is not as devastating as it first looked!


And of course innocent people would have volunteered the content of their texts.

The place for high-horsing about the 'right of the individual to communicate privately blah blah blah' hardly is relevant when it's your child or your friend's child missing.

How strange - yet again - that the McCanns are so sanguine when their friends refuse to divulge the content of their texts to police.

That's what I'd call friendship.

Or fear.
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Re: ROGATORY LETTERS, PJ INTERVIEWS, and RECONSTRUCTION UPDATE

Postby MalCat » Wed May 28, 2008 9:14 pm

The PJ must have been well aware from the start they stood no chance of gaining access to the content of the Tapas9's calls - but the very fact they were engaged in a legal gambit over these calls must have been known to the chums via their Portuguese lawyers, and added to the pressure on the 5 to distance themselves from KM GM ROB and JT - I speculate. In any case names numbers times dates and locations must give the PJ quite a lot to be going on with and to confirm what they may already know.
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