The Union of Public Ministry Magistrates (SMMP) considered this Tuesday that “there is no end in sight for the legal chaos” generated by the declaration of unconstitutionality of the metadata law.
The president of the SMMP, Adão Carvalho, was speaking to Lusa about the decision of the Court of Appeal of Évora (TRE) to declare null the judgment of the trial of the Tancos case, which in January 2022 condemned 11 of the 23 defendants.
Although he claims to be unaware of the judgment’s grounds, namely regarding the nullity of the evidence obtained from the metadata, Adão Carvalho said that “it is yet another case in this chaos of uncertainty in the interpretation” of the Constitutional Court (TC) judgment.
The TC declared the unconstitutionality of some norms that determine the retention, by providers of telecommunications and electronic communications services, of all traffic and location data relating to all communications (metadata) or their attempt, for a period of one year, with a view to its possible future use for the prevention, investigation and prosecution of serious crimes.
For the president of the SMMP, “if it was already difficult before, now the task of law enforcers has become even more difficult with the judgment [do TC]”.
According to Adão Carvalho, after the judgment of the CT, questions regarding the probative use of metadata, whether on the validity of evidence already produced or in assessing its admissibility of production, “became recurrent in the various stages of the criminal process, from the investigation to the trial, at the level of ordinary appeals or of revision, generating several interpretations and disparate decisions, which do nothing to help the applicator of the law in the resolution of concrete cases”.
On the other hand, he regretted, the legislative initiatives presented in the Assembly of the Republic in July 2022 to try to solve some of the problems created, “did not know developments”.
In this regard, he recalled that, with the opening of the constitutional revision process, proposals were presented by three parliamentary groups on questions of access to telecommunications metadata, “being that the two with conditions to guarantee the constitutional alteration only proposed alterations to allow the access to such data by intelligence services”.
“In short, there is no end in sight for the legal chaos generated”, he insisted.
Adão Carvalho said it is “aberrant, in terms of proportionality between constitutionally enshrined rights, that telecommunications providers can preserve metadata for the purpose of charging their customers for debts generated by their use and access and conservation of the same is prohibited by the authorities judiciaries, for the purpose of investigating serious crimes or even to help, in good time, in order to save the life of a person in a situation of danger in which he finds himself”.
The union leader clarified that now “it is up to the court of appeal to decide whether the case (Tancos) should be retried in its entirety and, in that case, be the object of a new trial or whether the decision to go to first instance is limited only to part, as they may be, to specific questions raised by the court in its decision”.