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Letter from Lawyers Morais Leitao, Galvao
Teles, Soares da Silva
Addressed to: Criminal Instruction Court of Portimao
Portimao Public Services Ministry
Ref: 201/07.0 GALGS
To the Criminal Instruction Judge and the Public Prosecutor
The Association of Chief Police Officers, The Chief Constable of
Leicestershire, The Serious Organised Crime Agency, police and
legal authorities in the United Kingdom and Crimestoppers, all
already identified in the files, are here represented by Lawyers
Rui Patricio and Tiago Felix da Costa, from the company Morais
Leitao, Galvao Teles, Soares da Silva and Associates and submit
the following explanation and request:
I. During the investigations that took place after the
disappearance of the child Madeleine McCann, identified in the
process, the requesting entities provided assistance to the
Portuguese authorities in charge of these investigations, namely
the Policia Judiciaria and the Public Ministry.
Within the sphere of this collaboration, different information
was provided by the requesting entities to the Portuguese
authorities, such as, for example: the identification of
potential suspects, identified by the requesting entities as
sexual offenders or potential sexual offenders, techniques and
police methods used by the requesting entities within the scope
of their attributions, Intelligence, forensic reports and
information, analytical searches, amongst others
The requesting entities recognise that part of the material
provided by them was in the sequence of the Letters of Request.
The requesting entities have always understood that this
material would be part of the current process files. However, a
large part of the information was provided in an informal
manner, expedited spontaneously, so as to guarantee the speed
and efficiency of the investigations, namely those covered by
International and Community Rights applicable to legal and
police cooperation.
However, the requesting entities have learned that a decision
was taken with relation to the state of the investigations,
notice of its archiving having been given, in accordance with
the public announcement of 21st July 2008.
In addition, the requesting entities have noticed that numerous
elements from the process have been published during the last
weeks in the Portuguese press. Indeed, since the 22nd July 2008
the final report of the PJ has already been circulating on the
Internet.
But in some of the press is clear with respect to its intentions
with relation to this process, as can be read, for example, in
the editorial note on page 5 of the edition of the 22nd July
2008 of Correo da Manha: "The essence lies with the child who
remains missing and for this reason the newspaper is not going
to stop searching or questioning all the versions of all the
protagonists, whatever inconveniences this may cause. The public
interest lies here and not in the judicial secrecy." (our
highlighting)
As a result, a large part of the information mentioned
previously, could become known by those subject to the process
and by the public in general, namely in the terms of article 86,
no. 2 and 3, that are contrary to no. 6 and 90 of the CPP.
What is in question, for example, are the data referring to
identified sexual offenders or alleged sex offenders and even
police information and Intelligence information, with the
identification of individuals, telephone and trackback
registers, entrances and exits from the UK and Portugal, amongst
other aspects.
The current inquiry is an international criminal inquiry of
major relevance. In this sense, at the beginning of the inquiry,
during a meeting between the Portuguese and UK police and legal
authorities, including the requesting entities. Under the
shelter of this basic agreement, material was provided during
the course of the inquiry, on an almost daily basis.
Once the means of electronic communications between the UK and
Portugal were established, detailed informative reports
providing material were created, which were updated by the
requesting entities, in an approximate manner. Given the
enormous volume of material in question and the scarce time
available, it is impossible to provide, within the current data,
a discriminated register of each document and piece of data that
was provided. However, it is possible to confirm that a
considerable number of documents relating to the categories that
will be mentioned further on was provided.
A. Material relating to condemned and suspected sex offenders
This category of material is of an extremely sensitive and
delicate nature. During the meeting mentioned previously between
representatives from the Portuguese authorities and UK police
and legal authorities, it was recognised early on that this was
a category of material that should be protected in all cases.
It was equally recognised that this material would be provided
by the police and legal UK authorities on the basis of the full
understanding that this was confidential material, given that it
contains the identification of names, last known addresses and
other details relating to sex offenders, whether they were
individuals who had already been condemned or just suspects.
The divulgation of this material would obviously have an impact
on rights of individual privacy and this would have negative
effects on police work in general, given the fact that police
Intelligence which is maintained exclusively of police purposes
and for criminal investigation, would enter the public domain,
when this material should never be accessible to the general
public.
In June 2008, the requesting entities were permitted to analysis
two volumes with elements relating to sexual offenders or
potential sexual offenders, provided by the requesting entities
to the Portuguese authorities who claimed that these would be
kept secret.
From this analysis, the requesting entities concluded that part
of the elements provided by them to the Portuguese authorities
relating to sex offenders were not contained in these two
volumes, which would permit the identification by all who had
access to the process of sex offenders who were already
condemned or just suspects.
Therefore, the requesting entities consider that all the
information about sex offenders that was provided to the
Portuguese authorities should not be revealed, and urge the
determination of the exact location of this material and its
legal treatment in terms of what the law states as regards
elements that should remain under secrecy, before the opening of
the process files to the knowledge of subjects of the process or
third parties.
The main preoccupation of the requesting parties is to respect
the physical integrity of the condemned or alleged sex
offenders, who would certainly suffer serious risks if their
details appeared in the public domain under these circumstances.
B. Intelligence Reports
The eventual divulgation of Intelligence reports elaborated by
the UK legal and police authorities and shared with Portugal in
confidence would be very serious for different reasons.
In the first place, much of this material is composed of
non-proven information - in the sense that the information
received by the UK authorities but which was not proven - in
respect to what it sys about individuals designated by name or
by identified by others. Its divulgation could result in an
immediate and harmful impact on the individual rights of privacy
and possibly to their physical integrity.
On the other hand, it is obviously of public, national and
international interest that police forces share
information/Intelligence in a rapid and effective manner. The
risk of the Intelligence information coming into the public
domain could put at risk the future international police
cooperation between forces, this was also referred to in the
meeting mentioned previously.
This information was provided by the UK police and legal
authorities in good faith and in the full conviction with
relation to its strict confidentiality, therefore its public
divulgation should be avoided.
If the case of the divulgation of any of the Intelligence
reports were to occur, it would be necessary to proceed to a
qualitative analysis of the content of each of the reports
referred to. This would be necessary in order to evaluate the
risks run in the divulgation with relation to each specific
situation.
C. Crimestoppers (Crime Combating Unit)
The Crime Combating Unit is a joint Investigation/Intelligence
instrument of proved and recognised merit in combating crime,
based in the UK. It works as a link between the police, the
community and the media. It is a formally recognised system that
provides people with a means of transmitting information to the
police, without having to reveal their identity.
The very essence of the Crime Combating Unit is anonymity. The
UK police and legal authorities provide a level of protection
for anonymous status under contractual terms established between
them and the respective source from the Crime Combating Unit.
Questions are not asked to identify the source and any material
that could identify the source is edited or carefully reviewed.
To proceed differently would constitute a breakdown in
understanding between the police/legal authorities and the
source.
A high volume of information was provided by citizens by means
of the Crime Combating Unit, which was transmitted to the
Portuguese authorities. Under these circumstances, the
requesting entities wish that, in relation to these documents,
any reference to the Crime Combating Unit be eliminated and/or
any information provided by any source, whoever it may be, or
could be, susceptible to identification.
D. Communication between Police Forces
In this case and understandably, the level of cooperation
between police forces has no precedent. Agreements and
procedures were established between all parties, so that the
investigation could proceed rapidly and on the widest level
possible.
This occurred based upon the full understanding that the
communications in reference would be kept confidential.
An eventual breakdown in this confidentiality would be extremely
worrying, essentially due to two reasons:
Firstly, the material was provided under confidentiality and
because of this there was no check, case by case, of the
possible risks that could result from its exposure to the public
domain. It should be noted that what is in question, amongst
others, are the privacy rights of third parties. These rights
could be rights that were not preventatively protected due to
not all qualitative analysis having been carried out as regards
any of the material in question;
Secondly, it is very probable that its divulgation could have
negative effects on the exchange of material in the future, and
could potentially prejudice important criminal investigations in
the future.
E. Orientation of the NPIA
The NPIA - National Policing Improvement Agency - is a unit
established in the UK in order to improve police techniques and
methodology, namely by means of the presentation of orientation
lines for use by police officers with relation to numerous
aspects of police procedure.
These orientations are always presented in the Police to Police
regime and with the following epigraph: "To be defined as
delicate material and for this reason, not to be divulged, with
its basis being the fact of treating material, directly or
indirectly, that would reveal techniques and methods used by a
police officer within the scope of a criminal investigation.
Material whose divulgation could lead to the perpetration of
other crimes, or prejudice the prevention of crime detection".
A set of documents of this kind was provided to the Portuguese
authorities with the aim of helping the work in the
investigations underway. Bearing in mind the epigraph referred
to and the Portuguese authorities' acceptance of the material,
the requesting entities make clear their deep preoccupation in
the face of the possibility that the material in reference could
be divulged without having had the opportunity to analyse its
contents in detail nor the risks that could be associated.
Apart from the fundamental rights of the subjects identified in
the information provided, which could be seriously affected by
their imminent divulgation, especially with regard to the
alleged sex offenders, police materials, techniques, methods and
protocols and Intelligence would be revealed, which are
classified and confidential under UK Rights.
With regard to the above, the following caution and request are
made:
II.
To be added to the contents of I, expressed above, it should be
taken into account that there are a set of legal measures in the
UK destined to protect individual rights, for example, The Human
Rights Act 1989 (entered into force in the UK following the
European Convention on Human Rights), The Data Protection Act
1984, Regulation of Investigative Powers Act 2000 and
legislation concerning common rights in the UK which recognises
that in a large diversity of cases, there are obligations on the
part of the state authorities to intervene in a coherent form
with respect to the protection of individual rights.
It should be noted that the divulgation of the above-mentioned
elements would most probably affect legal and international
police cooperation in the future within the domain of complex
criminal investigations, therefore putting into question the
execution of Portuguese Justice.
It is important to consider that the divulgation of information
provided by the requesting entities to the Portuguese
authorities would violate the disposition of articles 2 and 8 of
the European Convention on Human Rights and the dispositions of
articles 1,2 7 8 9, B) 25, 26, 27, no. 1, 32, no. 2 and 8 of the
Portuguese Constitution at least with respect to the information
of a private and intimate nature of the subjects identified.
On the other hand, the divulgation of this information would
violate article 7 of the European Union Convention on Mutual
Legal Assistance in Penal Material of 29th May 2000 and which
entered into force in Portugal on 23rd August 2005 and which is
fully applicable in this case as the requesting entities always
requested confidentiality for all information that was not
provided within the framework of a formal request from the
Portuguese authorities.
If this was not the case, or in other words, if the transmission
of information by the requesting entities had not pre-supposed
respective confidentiality, this information would never have
been transmitted to the Portuguese authorities, as according to
what was stated previously this information would be subject to
confidentiality covered by UK Rights and Law.
The Portuguese Law itself protects confidentiality of
information transmitted within the scope of international legal
cooperation, as laid down unequivocally in article 149 no. 1 of
Law 144/99 of 31st January, which could in this way also be in
violation.
It would be appropriate to check whether, the informants were
told of the application of articles 16 and 19 of Law 93/99 of
14th July and whether they were contemplated or pre-supposed.
It will correspond to the Criminal Instruction Judge to
determine the upholding of the secret of justice about all the
elements identified above, in terms of article 76 no. 7 of the
Penal process Code and other constitutional norms and principles
and of the International Law that could be applicable if these
have not yet been determined.
Only in this way will the necessary concordance between
fundamental rights and constitutional principles and
International Law be guaranteed in the case of conflict in this
concrete case, also complying with the principle of
proportionality consecrated in article 18, no. 2 of the
Fundamental Law.
It should also be said that the divulgation of information from
the process files that refers to personal data of individuals
and who were in no way indicated in the current inquiry would
also be an attack on the most elemental rights of personality
and even on physical integrity.
On the other hand, the exceptional regulations foreseen in the
protection of witnesses mentioned previously, covered by Law
101/2001 0f 25th August and above all in the State Secret Law
(Law 6/94 of 7th April) permit the consideration of other
rights, interests and values that are constitutionally protected
within the domain of the penal process.
It is not necessary to mention that all that could be considered
to be 'means of proof' would obligatorily need to be kept
outside of the judicial secrecy, in the sense that the rights of
the arguidos, those of the offended parties and the assistentes
and those of the public in general are necessarily superimposed
upon the rights of third parties who are the object of the
information provided, to the right of security and the
international rights referred to previously.
The argument that article 86 no. 7 of the CPP does not permit the
Criminal Instruction Judge to ponder all the rights and interest
in question should not be advanced, considering the logic of
practical concordance, being previously limited to maintaining
the judicial secrecy only for the 'elements' that were not
considered to be 'means of proof'.
Such an understanding would result in material
unconstitutionality of the norm that id extracted from articles
86, no. 1, 2 and 3 and no. 7, 8 , 9 b) 89, no. 6 and 90, no. 1 of
the CPP, when interpreted in the sense that the Instruction
Judge is not appropriate to maintain the judicial secrecy about
means of proof that doe not sustain a decision for accusation or
for archiving, amongst others, to ponder the fundamental rights
of third parties that are identified in these elements and (or
the information transmitted confidentially by the legal
authorities or foreign police forces and also when interpreted
in the sense that the fundamental rights of personality and
national and international security cannot, in the concrete
case, be superimposed upon the right to defence of the arguidos
in the penal process, as this would be a violation of that laid
down in articles 2 and 8 of the European Convention on Human
Rights and 1, 2, 7, 8, 9, 25, 26, no. 1, 27, no. 1 32, no. 2 and 8,
18, no. 2 and 8 of the Portuguese Constitution and article 7 of
the EU Convention related to Mutual Legal Assistance in Penal
Material of the 29th May 2000, ratified by the Decree of the
President of the Republic no. 53/2001 of 16 October 2001 which
entered into force in Portugal on 23rd August 2005.
In spite of all that it mentioned previously the requesting
entities claim to make it absolutely clear that they do not
claim in any way to interfere or prejudice the proceedings of
the current process.
In truth, this requirement constitutes the possible processional
way, destined to protect the fundamental rights of all the
individuals who could be affected by the aim of the judicial
secrecy about the elements in question, especially the internal
security in Portugal and the UK and international and European
security in general, the integrity of policing and investigation
methods throughout the world, safeguarding in this way, the
future of this kind of cooperation.
It is also certain that the requesting parties remain available
to collaborate or assist the Portuguese authorities in the
identification of all the documents that were provided by the
requesting entities and in the evaluation of associated risks.
In these terms, we request from Your Excellency - in adhesion or
in complement of any other identical requirement already
presented, or for the case or with relation to the elements
already mentioned - the following instruction:
A. The maintaining of the judicial secrecy about all the
elements in the process that were provided by the requesting
entities to the Portuguese authorities outside of the scope of
the formal requests made, in these terms and with legal
consequences;
Or in the case that this is not considered,
B. The maintaining of the judicial secrecy concerning all the
elements of the files from categories A and C identified above
that were provide by the requesting entities to the Portuguese
authorities outside of the scope of the formal requests, in
these terms and with legal consequences;
And, in either case,
C. The delivery to the requesting parties of a CD with the
information relating to the process and all its annexes, so that
the requesting entities can carry out a qualitative analysis of
all the elements provided by them and which figure in the
process;
And,
D. Whilst there is no final decision about the above, that there
should be an immediate and provisional suspension of the access
to the process, for the elements in the categories referred to
above or those about which there are doubts as to which of the
categories they belong to, either by the subjects and
participants in the process, or third parties, in these terms
and with legal consequences.
Conc 25-07-2008 |
