Thousands of criminal cases poised to collapse

‘Bombshell metadata ruling’ threatens to bring down 14 years of criminal investigation

Constitutional Court judges have blown a hole in 14 years of criminal investigation by ruling that police cannot have access to suspects’ call or internet histories.

The decision – which has even left constitutionalists aghast – is all the more devastating by being retroactive to 2008.

Thousands of criminal cases could be affected, say reports – citing “terrorism, kidnaps, organised crime, drug and arms trafficking, corruption, money-laundering…

Diário de Notícias explains: “cases that are underway, already at the trial phase, or which have been judged in the last 14 years” will turn to dust if they were based on incrimination of the suspect/s through information obtained via telecoms operators.

Sources stress that “a large part” of criminal investigations are based on ‘metadata’ (information which identifies the user of a telephone or computer, the location and the length and destination of calls).

PJ police chief Luís Neves only recently told a conference on cybercrime how “essential” the “solid and indisputable collection of technical information” like metadata was to ensure prevention of this growing kind of crime.

Legal experts are now faced with going back to the drawing board to try and work out a way through this disaster.

An official source for the Justice Ministry has admitted the ruling “is likely to have a relevant impact on investigation, detection and repression of serious crimes”.

Other sources have described the ruling as “a nuclear bomb”, “devastating”, “catastrophic” and “an earthquake”. 

Deputy attorney general Alípio Ribeiro believes: “14 years of penal action could be lost”.

European Directive of 2006 at root of problem

This has all come about because a European directive from 2006 (encouraging the storage of metadata for the ‘exclusive purpose of investigation, detection and repression of serious crimes’) was vetoed by the Court of Justice of the European Union (CJEU), in 2014.

In the intervening years, Portugal had approved Law 32/2008, which applied the 2006 directive. Clause 4 particularly deals with the storage of metadata for up to a year.

In her capacity as Ombudsman, Maria Lúcia Amaral tasked the Constitutional Court with looking at the CJEU decision, and deciding whether or not it affected the constitutionality of Law 32/2008 (clause 4).

In many respects this ‘bombshell’ has been expected, though this doesn’t make it any easier to accept.

It is not as if Clause 4 means metadata has been left open to just anyone. The 32/2008 law insists that it is kept in high-security vaults, accessible to police only on the order of a judge. In other words, the data is in no danger of being compromised.

But, on the basis of the CJEU ruling that keeping it invades citizens’ privacy, Portugal’s Constitutional Court judges went even further. They have effectively barred police from access even to ‘base data’ (allowing the identification of IP addresses/ the home address of a mobile phone user) which is now only available to the secret services, says DN.

Phone tapping is still allowed, the paper continues, “but the entire history essential for discovering the truth of a crime is barred”.

Jorge Bacelar Gouveia, an expert in the Portuguese Constitution and president of OSCOT, the Observatory of Internal Security and Terrorism, is peremptory: “It’s an earthquake in criminal investigation. Catastrophic. Years of criminal investigation can be destroyed”.

The ruling protects the rights and secrecy of telecommunications “as if there were no fundamental right as important as the right to security or national security as a collective asset and value”, he said.

In Bacelar Gouveia’s opinion, Constitutional judges have “disarmed the State from the instruments of combating crime”.

Politicians/ the governmenturgently need to legislate a new law”,  he said, although this will not resolve the chaos that could come from nullifying cases from the past, or cases that are underway/ already advancing through the courts: complex cases, like even ‘Marquês’ – the corruption investigation involving former prime minister José Sócrates.

“It is a case of saying that a lot of criminals have been very lucky. It would be interesting to know who comes out of this benefiting”, Bacelar Gouveia told DN.

Internal security at risk

Mário Mendes, former State advisor and secretary general of internal security, believes the new situation has put internal security at risk – not to mention the security of citizens.

“This is a nuclear bomb for IT criminal investigation”, he said.

In Mendes’ opinion, the ruling is completely ‘out of date in the face of current reality, immensely aggravated with the war in Ukraine”.

The consequences, beyond the effects on past cases and ones underway, will make it “practically impossible” to investigate crimes perpetrated via computers/ IT channels.

Impossible to investigate cybercrime

Public prosecutor Rui Cardoso (a former president of the syndicate of public ministry magistrates) echoed collective dismay, stressing the new ruling will make it impossible to investigate cybercrime. “We have to think of all the IT intrusions that have taken place, even over the last few days – the swindles through MBWay – and understand that it will now be impossible to identify those responsible”, he lamented.

In Cardoso’s opinion Constitutional Court judges were basing their decision-making on the “wrong assumptions that there are other ways to obtain this information. There simply aren’t. Very serious crimes will remain unsolved because it will not be possible to take the first step in accessing this type of data (…) This will be devastating”.

The ruling is “all the more ridiculous”, he stressed, for the fact that (telecoms) operators keep metadata from all their customers for six months “for billing purposes”.

“Constitutional Court has very firm positions”, explains President Marcelo

While pressure is now on the government to legislate a new law to ensure this ruling cannot upset years of investigative effort, President Marcelo has stressed “the problem is that the Constitutional Court understands that the Constitution is very closed”. 

“When it was approved (in 1976) it was very restrictive in not allowing a law that gives access to metadata”, he added.

natasha.donn@algarveresident.com