Ações encobertas

The global and increasingly technological society requires the States to adopt security measures that can maintain the balance between the freedom, on the one hand, and the security and the respect for fundamental rights of a democratic state, on the other. A State can only achieve this aim if it has an effective judicial system and in particular a criminal procedure adequate to the new criminogenic realities. In this context, the national legislator has adopted, following other international legal systems, special means of obtaining proof more stringent of rights. Within those special means are included the covert actions, that, being a means to use sparingly, is a key element to fight against violent and highly organized crime. Therefore, the undercover agent, voluntary by nature, develops a set of activities that enables the investigation to use other means of taking evidence and/or probationary diligences itself, with the purpose of providing sufficient proof to the case file. In this milieu, given the high risks involved during the investigation, as well as after its completion, the undercover agent can act upon fictitious identity. This measure can be maintained during the evidentiary phase of the trial. Similarly, given the latent threat that the undercover agent suffers by its inclusion in criminal organizations, as well as the need for his inclusion in future covert actions it is crucial that his participation as a witness in the trial is properly shielded. Thus, when the undercover agent provides, exceptionally, statements in the trial, he shall do so always through videoconference with voice and image distortion. This measure can guarantee the anonymity of the undercover agent and concomitantly, that the adversarial principle and the right of the accused to a fair trial is not prejudiced since, in those circumstances, the diligence will be supervised in its entirety (in the audience and with the undercover agent) by a judge.

A internet e o sistema de justiça

The subject of study of this Thesis aims to highlight and recognize as an object of reflection the undoubted relationship between the Internet and the Justice System, based on the issue of digital evidence. The simultaneously crossing of the juridical-legal implications and the more technical computer issues is the actual trigger for the discussion of the issues established. The Convention on Cybercrime of the Council of Europe of 23rd November 2001 and the Council Framework Decision n.° 2005/222/JHA of 24th February 2005 were avant-garde in terms of the international work about the crimes in the digital environment. In addition they enabled the harmonization of national legislations on the matter and, consequently, a greater flexibility in international judicial cooperation. Portugal, in compliance with these international studies, ratified, implemented and approved Law n. º 109/2009 of 15th September concerning the Cybercrime Act, establishing a more specific investigation and collection of evidence in electronic support when it comes to combating this type of crime, as it reinforced the Substantive Criminal Law and Procedural Nature. Nevertheless, the constant debates about the New Technologies of Information and Communication have not neglected the positive role of these tools for the user. However, they express a particular concern for their counterproductive effects; a special caution prevails on the part of the judge in assessing the digital evidence, especially circumstantial evidence, due to the its fragility. Indisputably, the practice of crimes through the computer universe, given its inexorable technical complexity, entails many difficulties for the forensic investigation, since the proofs hold temporary, changeable, volatile, and dispersed features. In this pillar, after the consummation of iter criminis, the Fundamental Rights of the suspects may be debated in the course of the investigation and the construction of iter probatorium. The intent of this Thesis is to contribute in a reflective way on the issues presented in order to achieve a bigger technical and legal awareness regarding the collection of digital proof, looking for a much lighter approach to its suitability in terms of evidentiary value.