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Act No. 101/2001 of 25 August 2001

To make provision as to covert operations undertaken for the purposes of crime prevention and criminal investigation


The Assembly of the Republic, in accordance with Article 161 (c) of the Constitution and to be valid as a general law of the Republic, decrees as follows:

Section 1

Object

(1) This Act sets forth the legal regime of covert operations carried out for the purposes of crime prevention and criminal investigation.

(2) Any operations conducted by criminal investigation officers, or third persons subject to the scrutiny of the Criminal Police, acting under undisclosed capacity and identity for the purpose of preventing or punishing the offences specified in this Act, shall be deemed to be covert operations.


Section 2

Scope

Covert operations are admissible within the framework of prevention and punishment of the following offences:

(a) murder, provided that the offender is unknown;

(b) offences against freedom and against sexual self-determination punishable with imprisonment for a term of five years or more in abstracto, in so far as the offender is unknown, or where a person aged 16 or under or other incapable persons are expressly referred to as being aggrieved by the offence;

(c) offences relating to stolen-vehicle forgery and trafficking;

(d) slavery, unlawful detention and kidnapping or hostage-taking;

(e) terrorist organisations and terrorism;

(f) unlawful seizure of aircraft, vessel, train or any means of transport by road, or endangering the safety of air, sea or railway goods or passengers, punishable with imprisonment for a term of eight years or more in abstracto;

(g) involving bombs, grenades, explosive substances or devices, firearms and booby-trapped objects, nuclear, chemical or radioactive weapons;

(h) robbery at credit institutions, treasury offices and post offices;

(i) criminal conspiracy;

(j) concerning trafficking in narcotic drugs and psychotropic substances;

(l) laundering of money, other assets or products;

(m) corruption, embezzlement, undue pecuniary advantage in business transactions and trading in influence;

(n) fraudulently obtaining of or wrongfully misappropriating grants or subsidies;

(o) economic and financial offences committed in an organised manner or by computer-related means;

(p) economic and financial offences committed at international or trans-national levels;

(q) counterfeiting currency, securities, revenue stamps, postage stamps and the like securities or passing them off ;

(r) relating to securities market.

Section 3

Requirements

(1) Covert operations must be adequate to such crime prevention and criminal punishment purposes as are described in concreto, including the obtaining of evidence, and proportionate to either such purposes or the seriousness of the offence under investigation.

(2) No one may be compelled to take part in a covert operation.

(3) Covert operations within the framework of the inquiry are subjected to prior authorisation of the competent member of the Public Prosecution, to mandatory communication to the investigating judge, and will be deemed to be ratified if no order refusing permission is issued within 72 hours.

(4) If the operation referred to in subsection (3) is carried out in the framework of crime prevention, it falls within the competence of the investigation judge to give the required authorisation upon proposal by the Public Prosecution.

(5) In a case falling within subsection (4), the initiative lies with the member of the Public Prosecution at the Central Office for Investigation and Prosecution (DCIAP) and the decision falls to the judge of the Central Criminal Investigation Court.

(6) The Criminal Police will report the undercover agent operation to the competent judicial authority within 48 hours at the latest as from the date on which the operation was completed.

Section 4

Protection of officers and third parties

(1) The judicial authority will order that the report referred to in section 3 (5) above be joined to the case-file only if in his opinion such measure is deemed absolutely indispensable for evidential purposes.

(2) Consideration of indispensability may be adjourned until the closing of the inquiry or the judicial investigation; in the meantime, the report and a record thereof shall be kept by the Criminal Police.

(3) The competent judicial authority may, of his own motion or on an application by the Criminal Police, by a reasoned decision, authorise the undercover agent who has acted under covert of false identity by virtue of section 5 of this Act to give evidence under such identity in proceedings relating to the facts which were the subject of his covert operation;

(4) If the judge should, on grounds of evidential indispensability, order the undercover officer to attend the hearing, the provisions of the 2nd part of paragraph (1) of Article 87 of the Code of Criminal Procedure shall always be complied with, and the provisions of Act No. 93/99 of 14 July 1999 shall apply likewise.


Section 5

False identity

(1) For the purpose of section 1 (2), criminal police agents may act under a false identity.

(2) False identity shall be granted by an order issued by the Minister of Justice, upon proposal by the National Director of the Criminal Police.

(3) The identity mentioned in subsection (2) shall be valid for six months, renewable for identical periods of time, and the criminal investigation officer to whom false identity was granted shall be authorised to act under such identity during that period of time either in the performance of the actual investigation or, generally, in every circumstance of the legal and social process.

(4) The order granting the false identity shall be classified as secret and shall mention the real identity of the undercover agent.

(5) It shall be the duty of the Criminal Police to manage and promote the updating of false identities granted in accordance with the foregoing subsections.


Section 6

Exemption from liability

(1) Any conduct of an undercover agent which, in the framework of a covert operation, amounts to the commission of preparatory or instrumental acts in any form of participation other than being the instigator or actual perpetrator of the offence shall not be punishable whenever due proportionality is kept with regard to the aim to be achieved.

(2) If criminal proceedings should be initiated for any act(s) done under the provisions of this Act, the competent judicial authority must, as soon as it comes to his knowledge, request information from the judicial authority who issued the authorisation referred to in section 3 (3).


Section 7

Repeals

The following are hereby repealed:

(a) Article 59 and Article 59-A of Decree-Law No. 15/93 of 22 January 1993;

(b) Section 6 of Act No. 36/94 of 29 September 1994.


Enacted on 17 July 2001.
António de Almeida Santos, President of Parliament

Signed on 11 August 2001.
For publication.
JORGE SAMPAIO, President of the Republic

Counter-signed on 16 August 2001.
António Manuel de Oliveira Guterres, Prime Minister