The parliament has reviewed the decree that transposes the European directive on combating fraud and counterfeiting of non-cash means of payment to the national legal system, amending the Penal Code, the Code of Criminal Procedure, as well as the cybercrime law .
The review takes place after a ruling by the Constitutional Court (TC), and consequent veto by the President of the Republic, Marcelo Rebelo de Sousa, to a rule that changed the cybercrime law to allow the seizure of email messages in the course of judicial operations , but without the prior authorization of a judge.
The TC unanimously considered that the proposed amendment constitutes a "restriction of the fundamental rights to the inviolability of correspondence and communications and to the protection of personal data in the context of the use of computers, as specific manifestations of the right to reserve the privacy of private life , in terms harmful to the principle of personality”.
Today, on behalf of the Government in parliament, the Deputy Secretary of State and of Justice, Mário Belo Morgado, defended that the proposed legislative amendment to the executive was aimed at “improving the effectiveness and efficiency” of the criminal procedure, “adapting it to the demands of the 21st century”, and “without calling into question the fundamental guarantees of citizens”, adding that the prevention of “unfounded or disproportionate actions by prosecutors or police officers” was guaranteed.
While recalling that the Government's proposal had no votes against in parliament when it was approved and that it was accompanied by favorable legal opinions, such as that of the Superior Council of Magistracy (CSM), Mário Belo Morgado noted that “the TC's decision is fully accepted. ”, which is “legitimate and sovereign”, but admitted that the Government will return to the subject later.
“Given the imperative of swift transposition of the directive, whose term, incidentally, has already expired, the Government believes that it is not opportune to present at this time an alternative proposal to amend article 17 of the cybercrime law. This position does not prevent this issue from being introduced again in the future within the limits established by constitutional jurisprudence”, he said.
"Considering that all the remaining content of the diploma has not been questioned, the Government understands that it should be maintained, eliminating only the proposed amendment to article 17 of the cybercrime law", added the Deputy Secretary of State and of Justice.
The PS and PSD parliamentary groups have the same understanding, which presented amendments in the same direction, eliminating the article rejected by the TC, with Mónica Quintela, from the PSD, remembering that the Social Democrats asked to vote on the rule separately for disagreeing with the content and considered asking for successive inspection after approval.
José Manuel Pureza, from BE, about the predictable approval of the diploma without the article rejected by the TC, said that "it didn't have to be like this, but it will be", stressing that the understanding of the constitutionality of the norm is not "linear or consensual", as demonstrated by legal opinions to the contrary.
Inês de Sousa Real, from the PAN, also regretted that the article that changed the cybercrime law “stays by the way”, stressing that the opinions that accompanied it “did not make evident” the TC's lead.
João Oliveira, from the PCP, stated that eliminating the article was “the consequence to be removed” from the TC's lead, arguing that the court's decision should prompt reflection on future paths and solutions to fight crime.
The vetoed diploma was based on a government bill, which resulted in a final text presented by the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, approved in a final global vote on July 20, with votes in favor of PS, PSD , BE, PAN, PEV, Chega and non-registered deputies Cristina Rodrigues and Joacine Katar Moreira, with abstentions from PCP, CDS-PP and Liberal Initiative.
The President of the Republic framed the amendment to article 17 of the cybercrime law as "a substantial change in the paradigm of access to the content of electronic communications", in which it is accepted "that such access belongs, in the first instance, to the Public Prosecutor's Office, which only later presents it to the judge".