The currently proposed Interception of Communications and Surveillance Bill draws inspiration from the Portuguese Ordinance, including the absence of any notification to the person under investigation, the Secretary’s Office reveals. security in a statement.
A new legal framework for the interception and protection of communications is currently under discussion at the First Standing Committee of the Legislative Assembly (LA), with some doubts raised about the lack of notification of the persons concerned after the completion of the investigation.
In a statement posted on its website, the Office of the Secretary of Security says that when drafting the bill, it took into account provisions relating to the interception of communications or wiretapping regimes in various jurisdictions and presented suggestions based on the reality of Macao, in order to “better protect the rights of people subject to interception” by ensuring that the effectiveness of criminal investigation work is not compromised.
The new legal framework, for example, requires the criminal police force to first obtain the order or authorization of a judge to intercept communications as well as the assessment of legality by the public prosecutor before requesting the application of the measure to the judge.
After the interception of communications, if a judge considers it to be illegitimate, the person concerned must be notified, however, the bill proposes that this is not applicable where the notification may harm the objectives of the investigation or the investigation. ‘investigation.
The Bureau pointed out that there are currently three different models of legislation in the world defining whether the person who has been the target of the measure of interception of communications must be notified or not.
In Portugal, there is no provision for notification after the application of the measure, the request for a measure of interception of communications being previously assessed and authorized by a judge, and before being requested to the judge, the respective legality is assessed by the prosecution, with local authorities adding that under this regime “there is no need for further notification”.
“The current wiretapping regime in Macau is modeled after the Portuguese regime, so there is currently no provision for any notification after the measure is applied,” the Bureau says.
This is not the case, for example, in the United Kingdom, where the party concerned is then informed of the occurrence of an unlawful interception or of a mistake, or in the neighboring city of Hong Kong, where the interception or the secret surveillance is carried out by an employee of a ministry who does not have the necessary authority.
In Germany, parties involved in intercepted communications must be informed of the measures taken, if this does not affect the purpose of the investigation, and provided that they do not create a danger to public safety, life, bodily integrity or significant property of others.
In Taiwan, upon completion of communications monitoring, it is up to the court to notify the person who was the subject of the interception, but if such notification is deemed contrary to the purpose of the measure itself , or if it is impossible to notify the person, no notification will take place.
“It is important to underline that in the regimes that follow this model, in general, it is foreseen that the authorities inform the interested party who has been the object of the interception after the adoption of the measure. However, the conditions for such notification not to take place are also expressly defined, such as in cases where the objective of the investigation or surveillance is violated, in which there are conflicts between the notification and ‘other interests that deserve superior protection, among others,’ the Office of the Secretary of Security noted.
The Office underlined that the protection of fundamental rights is taken into account, but on the other hand, the competence of law enforcement authorities in the fight against crime cannot be weakened and, therefore, an appropriate balance between the two aspects must be achieved. .
“Considering that the judge exercises, in accordance with the regime in force in Macao, a role of evaluation, authorization and supervision in the whole process of interception of communications, in the draft law, taking as reference the provisions existing in most of the jurisdictions integrated into the system of civil law, it is proposed that the subsequent notification is carried out by the court, since it has a superior and independent position”, add the security authorities.
After completing the committee-level evaluation, the final Interception of Communications and Surveillance Bill will be submitted to the LA Plenary for discussion and vote.