36
132. Article 5, paragraph XII, of the Brazilian Constitution establishes that the
confidentiality of telephone conversations is inviolable, except in the circumstances and as
established by law for purposes of a criminal investigation or for the preliminary
investigation in a criminal action. The constitutional provision is regulated in ordinary law
by Law No. 9,296/96, which establishes that the telephone interception may be requested
by the police authority in a criminal investigation, or by the Public Prosecutor’s Office in a
criminal or pre-trial investigation. In addition, a judge may authorize the measure ex
officio. In any of these circumstances, reasonable indications of the authorship or
participation in a criminal offense of the individual subjected to the measure must be
provided, and also that the evidence cannot be obtained by other means. The interception
procedure is subject to judicial control. The judge who authorizes it should duly found the
decision; indicate the manner and the maximum period of the procedure, which is 15 days
that may be extended for a similar period provided it is determined that this means of
obtaining evidence is essential, and communicate the order to the Office of the Prosecutor
General, who may supervise its execution. These elements allow the Court to consider that,
in general, this law is in conformity with the Convention. Therefore, the Court will proceed
to examine whether the telephone interception procedure that is the object of this case is in
keeping with this norm, and thus complied with the requirement of legality.
Purpose of the application for telephone interception and processing of the case file
– Articles 1 and 8 of Law No. 9,296/96128
133. According to Article 1 of Law No. 9,296/96, telephone interception must be for the
purpose of a criminal investigation or for the preliminary investigation in a criminal action.
In this case, even though the application made by Major Neves indicated the need to
investigate alleged criminal practices, namely the murder of Eduardo Aghinoni and the
diversion of public funds, it was not submitted within the framework of an investigative
procedure aimed at verifying those facts. The interception application did not even mention
the murder investigation for which the civil police of Querência do Norte were responsible,
and neither was the respective police chief notified in this regard.129 In addition, there is no
evidence that, at the time of the facts, an investigation was underway for the supposed
diversion of public funds by COANA and ADECON leaders. The application by Sergeant Silva
did not indicate the purpose of the intended interceptions or their connection to a criminal
investigation or proceeding. Thus, contrary to Article 8 of Law No. 9,296/96, the monitoring
petition was a separate procedure, and was not processed in proceedings linked to a
previously-established police investigation or criminal proceeding. Therefore, both requests
failed to comply with the provisions of the said Articles.
128
Law No. 9,296 of July 24, 1996.
Article 1. The interception of telephone communications of any nature to obtain evidence in a criminal
investigation and in pre-trial criminal proceedings shall comply with the provisions of this act and shall
depend on the order of the competent judge of the principal action, respecting judicial confidentiality.
[…]
Art. 8. The interception of telephone communications of any nature shall be recorded in autonomous
case files, attached to the case file of the police investigation or the criminal proceedings, preserving the
confidentiality of the respective procedures, recordings and transcripts.
129
According to the prosecutor, Nayani Kelly Garcia, the chief of civil police of Loanda and Querência do Norte
did not know that this measure had been executed. She also indicated that “the [said official] was involved in the
investigation into the death of Eduardo [Aghinoni] and, in this investigation, there was no record of the telephone
interception,” and that she had received “an official communication from the Civil Police affirming that it had not
played a part in the [procedure].” Brief of the Public Prosecutor’s Office of September 8, 2000, in the context of
Monitoring Petition No. 41/99, supra note 84, folio 2218, and testimony of the prosecutor, Nayani Kelly Garcia, in
the context of criminal investigation No. 82.561-5, supra note 72, folio 1560.
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