39
hearing the other party, the grounds and justification must show that all the legal
requirements and other elements that justify granting or refusing the measure have been
taken into consideration. Hence, the judge must state his or her opinion, respecting
adequate and effective guarantees against possible illegalities and arbitrariness in the
procedure in question.
140. Contrary to the foregoing, Judge Khater authorized the telephone interceptions with
a mere annotation that she had received and examined the requests and granted them: “R.
and A. Defiro. Oficie-se.” In her decision, the judge did not explain her analysis of the legal
requirements or the elements that caused her to grant the measure, or the way in which
the procedure should be carried out or its duration; this entailed a limitation of a
fundamental right of the alleged victims in violation of Article 5 of Law No. 9,296/96.
141. As regards the duration of the measures authorized, the Court finds that the
telephone interceptions started as of the second judicial order, which responded to the
intervention request submitted by Sergeant Silva on May 12, 1999. The latter expanded the
purpose of the interception request of May 3, 1999, asking that the monitoring of the
ADECON telephone line should be included in the procedure (supra paras. 90 to 92). Hence,
as explained by the State itself, “the first judicial authorization [of May 5, 1999] never
came into effect, because it was absorbed by the second authorization, granted to the
request made by [Sergeant Silva]”. Consequently, the first phase of the interception of the
two telephone lines took place over thirteen days, from May 14 to 26, 1999, based on the
abovementioned second judicial authorization. The next stage of interception took place
over a period of twenty-two days, from June 9 to 30, 1999 (supra para. 97), in violation of
Article 5 of Law No. 9,296/96, which states that the measures may not exceed 15 days,
renewable for the same period of time provided that the essential nature of the evidence
had been confirmed. In this context, the Court emphasizes that there was no request or
authorization to extend the telephone interceptions in the monitoring petition procedure. To
the contrary, on May 25, 1999, Major Neves requested the Loanda Court to end the
interceptions, and Judge Khater authorized this on the same date. Consequently, the
second period of interception was carried out without the authorization of the competent
judge, in violation of Article 1 of Law No. 9,296/96. Moreover, that could be considered an
offense in light of Article 10 of the said law, which establishes that “it is an offense to carry
out telephone communication interceptions […] without judicial authorization or for
purposes that are not authorized by law.”138
Notification of the Prosecutor General’s Office and transcript of the tapes – Article 6
of Law No. 9,296/96139
142. Article 6 of Law No. 9,296/96 establishes that, when the request has been granted,
the police authority shall conduct the interception procedure and shall communicate the
138
Law No. 9,296 of July 24, 1996, supra note 128, folio 55.
Article 10. The interception of telephone, electronic or telematic communications or the breach of judicial
confidentiality without judicial authorization or for purposes that are not authorized by law is an offense.
Penalty: two to four years’ imprisonment and a fine.
139
Law No. 9,296 of July 24, 1996, supra note 128, folio 55.
Article 6. When the request has been approved, the police authority will conduct the interception
procedure, notifying the Prosecutor General’s Office, who may supervise implementation.
1.
If the procedure makes it possible to record the intercepted communication, it shall be transcribed.
2. When the procedure has been completed, the police authority shall submit the result of the interception
to the judge, accompanied by a detailed report, which should contain a summary of the operations
conducted.
3. After the judge has received these elements, he or she shall determine the measure under art. 8, and it
shall be notified to the Prosecutor General’s Office.
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