Reflexões sobre a admissibilidade de utilização de técnicas de malware no âmbito do processo penal português

• Autor(a) principal: Raposo, Teresa de Aragão Matta Amaral
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/159932
• topic: Direito

In the face of technological progress and the emergence of encryption techniques, States are faced with new challenges and obstacles in criminal investigations, requiring new methods of investigation. As a result, various legal systems have resorted to the use of malware techniques, which allow hidden access to data stored on computer systems, as well as monitoring of the activity developed in those, and even the activation of hardware. However, the use of these techniques presents a great potential for compressing numerous fundamental rights, both of the accused and of third parties. Therefore, their admissibility requires a balance between the interest in effective justice, on the one hand, and the protection of those rights, on the other hand. While in other countries the use of these techniques has already been established, in Portugal the issue is still subject to debate, and the approach taken by scholars can be questioned. Some proponents of the legal establishment of these techniques argue that they are covered by provisions that provide for other methods of obtaining evidence. However, given the complexity of malware, it is difficult to avoid conclusions of unconstitutionality of such regimes. In fact, as argued by another part of doctrine, the admissibility of these techniques in the context of criminal proceedings still requires the intervention of the legislator, who must provide for clear and sufficient legal authorization, adopting a regime that is suitable for the specific characteristics of these methods. Otherwise, the use of such techniques may constitute prohibited evidence.