Données du Code pénal jointes à la Lettre de Mission rogatoire
Section 131
Whoever kills another person shall be
punished with imprisonment from 8 up to 16 years.
Section 138
Exposure or Abandonment
1. Whoever endangers the life of
another person :
a) exposing him/her in a place that
subjects him/her to a situation from which he/she cannot defend
himself/herself on his/her own : or
b) abandoning him/her, defenceless,
whenever the perpetrator had the duty to watch, keep vigilance over
or assist him/her, shall be punished with imprisonment from 1 up to 5
years.
2. If the fact is committed by an
ascendant, a descendant, an adoptive parent or an adopter of the
victim, the perpetrator shall be punished with imprisonment from 2 up
to 5 years.
3. If the fact results in :
a) a serious assault on physical
integrity, the perpetrator shall be punished with imprisonment from 2
up to 8 years.
b) death, the perpetrator shall be
punished with imprisonment from 3 up to 10 years.
Section 161
Abduction
1. Whoever abducts another person by
means of violence, threat or artifice in order to ;
a) submit the victim to extortion ;
b) commit an offence against the
victim's freedom and sexual self-determination ;
c) obtain a ransom or reward ; or
d) force the Public Authorities or a
third party into committing an act or omission,
or into supporting an
activity, shall be punished with imprisonment
from 2 up to 8 years.
2. Whenever the situations provided for
:
a) in subsection 2 of Section 158
apply, the perpetrator shall be punished with imprisonment from 3 up
to 15 years ;.
b) in subsection of 3 of Section 158
apply, the perpetrator shall be punished with imprisonment from 8 up
to 16 years.
3. Whenever the perpetrator voluntarily
renounces to his/her goal by releasing the victim, or seriously
endeavours to achieve this, the punishment may be particularly
mitigated.
Section 254
Profaning a corpse or a burial ground
1. Whoever :
a) without the entitled person's
consent, removes, destroys or conceals a corpse or part of it, or the
ashes of a deceased person ;
shall be punished with imprisonment up
to 2 years or with a Fine, up to 240 days.
2. The attempt is punishable.
Section 131
Ability and duty to testify
1. Any person who is not banned due to
mental illness has the ability to be a witness and may decline only
when provided for by Law.
2. The Judicial or Prosecuting
Authority checks the physical or mental ability of any person to give
Testimony, whenever this is required to assess his/her credibility,
and without causing any delay to the normal course of the
proceedings.
3. In case of a Testimony given by a
minor under 18 concerning an offence against the freedom and sexual
self-determination of minors, a personality assessment may be
conducted.
4. The inquiries referred to in the
previous subsections, and ordered prior to the Testimony, do not
prevent it from being given.
Section 132
General duties of the witness
1. Unless otherwise provided for by
Law, the witness shall be bound to the following duties :
a) To appear in due time and place
before the Authority by whom he/she was Legally summoned or
subpoenaed, keeping himself/herself at the disposal of that Authority
until excused ;
b) To take an Oath when questioned by a
Judicial or Prosecuting Authority ;
c) To obey to Legally given
instructions on how to Testify ;
d) To tell the truth when questioned ;
2. The witness shall not be bound to
answer when alleging that self-incrimination may result from his/her
answers.
3. In order to receive summons, the
witness may state his/her residence, office address or any other
domicile of his/her own choice.
4. Whenever the witness must give
Testimony, even in the course of an act that is barred to the public,
his/her Lawyer may be present, thus informing hi/her, whenever deemed
necessary, of the rights he/she is entitled to, without intervening
in the examination.
5. No Lawyer acting as defence counsel
for a formal suspect in the proceedings may be present with the
witness under the provision set forth in the previous subsection.
Section 135
Professional secrecy
1. Members of the Clergy, Lawyers,
Doctors, Journalists, members of credit institutions and any other
persons whom the Law allows or imposes professional secrecy, may be
excused from giving Testimony on facts falling within it.
2. If there ate reasonable doubts about
the legitimacy of the excuse, the Judicial or
Prosecuting Authority
before which it occurred will carry out the necessary inquiries.
Should the Judicial or Prosecuting
Authority, as a result, come to the conclusion that the excuse is not
legitimate, it shall then instruct, or request the Court to order
that the Testimony be given.
3. The Court superior to the one where
the incident arose or, in case the incident arose in the Supreme
Court, the plenary meeting of it's Criminal Section may decide that
Testimony be given with breach of professional secrecy whenever there
is reasonable ground for it, according to the principle that the
preponderant interest prevails, namely considering that Testimony is
essential to discover the truth, the seriouness of the offence and
the need for protection of rights. The intervention is initiated by
the Judge, ex-Officio or upon request.
4. In the cases set forth in subsection
2 and 3, the decision of the Judicial or Prosecuting Authority or
that of the Court is taken after hearing the representative body
related with the profession the secrecy of which is at issue, under
the terms and with the efforts provided for in the Legislation
applying to that body.
5. The provisions in subsection 3 and 4
do not apply to religious secrecy.
Section 172
Undergoing an examination
1. Whenever a person attempts to avoid
or hinder any due examination or providing any object to be examined,
he/she may be compelled to do so by decision of the competent
Judicial or Prosecuting Authority.
2. The provisions of subsection 2 of
Section 154 and of subsection 5 and 6 of Section 156 apply
accordingly.
3. Any examinations that are liable to
offend a person's modesty must respect the dignity and, as far as
possible, the modesty of the person undergoing them. The examination
is exclusively attended by the person performing it and by the
competent Judicial or Prosecuting Authority, the person to be
examined may be accompanied by a person he/she relies on, if no
danger arises from a delay, and he/she must be informed of this
possibility.
Section 182
Professional or Official Secrecy and
Secrecy of State
1. When ordered to do so by the
Judicial or Prosecuting Authority, the persons mentioned in Sections
135 to 137 present it with the Documente and any Objects in their
possession that must be seized, except when invoking, in writing,
professional or Official Secrecy, or Secrecy of State.
2. Whenever refusal is based on
professional or Official Secrecy, the provisions of subsection 2 and
3 of Section 135 and those of subsection 2 of Section 136 apply
accordingly.
3. Whenever refusal is based on Secrecy
of State, the provisions of subsection 3 of Section 137 apply
accordingly.
Section 187
Admissibility
1. Intercepting or recording telephone
conversations or communications can only be Authorized at the stage
of inquiry, whenever there are reasons to believe that this measure
is essential to discover the truth, or because evidence would
otherwise be impossible or very difficult to obtain, under a
substantiated order of an investigating Judge and upon a request
submitted by the Prosecution Service, with regard to the following
offences :
a) Offences punishabloe with a maximum
imprisonment term exceeding 3 years.
4. Irrespective of the holder of the
communication means used, interception or recording as provided for
in the previous subsections can only be Authorized regarding :
a) a suspect whether formal or not ;
b) any person serving as an
intermediary, about whom there are reasonable grounds to believe
he/she receives or transmits messages aimed at or coming from a
suspect, whether formal or not.
Section 188
Operation-related formalities
1. The Criminal Police body carrying
out the interception and recording as referred to in the previous
Section draws up the corresponding report and a statement outlining
the passages that are relevant as evidence, offers a brief
description of the contents therein and explains their significance
for discovering the truth.
2. The provisions set out in the
previous subsection shall not prevent the Criminal Police body
carrying out the investigation from previously taking knowledge of
the contents of the intercepted communication, so as to be able to
take the necessary precautionary and urgent measures in order to
safeguard evidence.
3. The Criminal Police body referred to
in subsection 1 informs the Prosecution Service every 2 weeks as from
the beginning of the first interception carried out in the
proceedings of the corresponding technical equipment, as well as of
the respective reports and statements.
4. The Prosecution Service informs the
Judge of the elements referred to in the previous subsection at the
latest within a period of 2 days.
5. In order to take knowledge of the
contents of the conversation or communications, the Judge is
assisted, whenever deemed convenient, by a Criminal Police body, and
appoints an interpreter, if necessary.
6. Subject to the provisions set forth
in subsection 7 of the previous Section, the Judge determines that
any technical equipment and statements clearly unrelated to the
proceedings be immediately destroyed:
a) whenever they concern conversations
in which none of the persons referred to in subsection 4 of the
previous Section intervene ;
b) whenever they include information
covered by professional or Official Secrecy, or by Secrecy of State ;
or
c) whenever their disclosure may cause
serious harm to any rights, freedoms and guarantees all intervening parties shall be bound
by secrecy with regard to the conversations that have come to their
knowledge.
7. During the inquiry, and upon request
of the Prosecution Service, the Judge determines that any
conversations and communications essential to substantiate the
application of coercive or property guarantee measures, except for
the statement of identity and residence, be transcribed and added to
the case file.
8. As soon as the inquiry is closed,
the Prosecuting party and the Defendant may examine the technical
equipment regarding the conversations and communications, and they
may obtain at their expense, copies of the Sections they wish to
transcribe and add to the case files, as well as copies of the
statements referred to in subsection 1, until the limitation period
established either for requesting the opening of the investigation,
by the investigating Judge or for submitting the defence has expired.
9. The only conversations and
communications that are valid as evidence are those :
a) the transcription of which the
Prosecution Service ordered to the Criminal Police body carrying out
the interception and recording, and indicated as evidence for the
Prosecution ;
b) the transcription of which, based on
copies as mentioned in the previous subsection, is carried out by the
Defendant, who adds it to the request for the opening of the
investigation by the investigating Judge or to the defence ; or
c) the transcription of which, based on
copies as mentioned in the previous subsection, is carried out by the
Prosecuting party within the limitation period established for
requesting the opening of the investigation by the investigating
Judge, even if said party does not
request it or is not legitimately entitled to do so.
10. The Court may listen to the
recordings in order ot establish whether any corrections need to be
made in transcriptions already carried out or new transcriptions need
to be added to the case file, whenever deemed necessary to discover
the truth and settle the case.
11. The people whose conversations or
communications were intercepted and transcribed may examine the
corresponding technical equipment until final Judgement is given.
12. Any technical equipment regarding
conversations or communications that are not subject to transcription
in order to serve as evidence shall be kept in an envelope sealed
with wax and held to the order of the Court, being destroyed after
the sentence becomes final and binding, thus closing the proceedings.
13. Once the sentence becomes final and
binding, as provided for in the previous subsection, the technical
equipment that has not been destroyed shall be kept in an envelope
sealed with wax, together with the case file, and may only be used if
an extraordinary appeal is filed.
Section 189
Extension
1. The provisions in Sections 187 and
188 apply correspondingly to conversations or communications
transmitted by technical means other than the telephone, namely
electronic mail or other ways of telematic data transmissions, even
when kept on digital equipment, as well as to the interception of
communications between people present.
2. The gathering and adding to the case
file of data regarding cell location or of records regarding
conversations or communications can only be ordered or Authorized, at
any stage of the proceedings, following a Judicial Order with regard
to the offences provided for in subsection 1 of Section 187 and
concerning the persons mentioned in subsection 4 of said Section.
Section 269
Acts to be ordered or Authorized by the
investigating Judge
1. During the inquiry, the
investigating Judge is th eonly Authority competent to order or
Authorize :
e) The interception and recordings of
conversations or communications as provided for in Sections 187 and
189 ;
f) The performance of any other acts
strictly dependent by Law on the investigating Judge's Order or
Authorization.
Portimao Judical and Family and Minors'
Court JIC
Investigating Judge
Av. Miguel Bombardo - Palacio da Justiça
- 4 Piso - 8501-960 Portimão
Phone number : 282460861 Fax number :
282425198 E-mailcorreio@portimao.tc.mj.pt
Case : 201/07.0GALGS Inquiry
(Jurisdictional acts) 3625251
CONC. - 12-12-2007=CLS=
Request submitted for approval, Page
3593 : examined
The Portuguese Prosecution Service
requests that the Telephone Network Operating Companies be instructed
to disclose the below-mentioned information concerning the telephone
numbers listed on Pages 3593 and 3594, with a view to drawing up and
issuing a Letter of Request for Legal Assistance in Criminal Matters
:
a) Full identity data regarding the
owners of the telephone numbers referred to in point 1 on Pages 3593
and 3594 ;
b) All incoming and outgoing phone
calls' records, including text (SMS) and multimedia (MMS) messages,
and their respective contents as well, relating to the time period
between 2nd May, 2007, 00H00, and 5th May, 2007, 00H00, in respect of
the telephone numbers referred to in point 1 on pages 3593 and 3594 ; Page 141 cr2_141
c) Full identity data regarding the
owners of the telephone numbers referred to in point 3 on page 3594,
and relating to communications made by Robert Murat ;
Thus, in order to substantiate the
above request, it should be adduced that the above pieces of
information are essential in order to make it possible to further
pursue the investigation.
Let this be carefully considered.
Within this case, the investigation is
being conducted into facts liable to fit the commitment of such
Crimes as Abduction, Homicide, Exposure or Abandonment, and Body
Concealment.
Having examined the case files, and
with a view to identifying the person(s) that may have been involved
in the above-mentioned Crimes, I think there are no possible measures
to be taken other than the requested action. Thus, disclosing the
information above specified is therefore deemed as vital to establish
the truth and possibly identify the perpertrator(s) of the above
Crimes.
Under the present circumstances, and as
shown by the case reports, we might say that, for the time being, the
investigation has reached an impasse, where it seems no progress can
be made or no advance is possible ; for that reason, the pieces of
information being asked for by the Portuguese Prosecution Service
should be released by the Telephone Network Operating Companies, as
it would happen in Portugal if that were the case, in view of the
fact that, as already highlighted, obtaining such information may
well lead to identify the perpertrator(s) of said Crimes, as provided
for in subsection 1 of Section 187 of the Portuguese Code of Criminal
Procedure.
It should be added that the requested
information relates to offences and persons specifically listed and
referred to in letter a) of subsection 1, in letters a) and b) of
subsection 4, of Section 187, and in subsection 2 of Section 189, of
the Portuguese Code of Criminal Procedure.
Thus, under the provisions set forth in
Sections 135 and 182, in letter a) of subsection 1, and in letters a)
and b) of subsection 4, of Section 187, in subsection 2 of Section
189, and in letter e) of subsection 1, of Section 269, of the
Portuguese Code of Criminal Procedure,
I hereby authorize that action be taken in order to obtain the above-mentioned information (except in what regards the contents of the text (SMS and multimedia (MMS) messages) and that the data so gathered be subsequently included in the reports, such action being taken by means of a Letter of Request to be drawn up and sent by the Portuguese Prosecution Service.
A Certified copy of this Judicial Order
is to be attached to the previously mentioned Letter of Request.
Portimão, December 12th, 2007
Signed :
(Pedro Frias, Investigating Judge)
