Marcelo Itagiba: despite authorizing those tappings, the prevailing law does not regulate their use

The rapporteur on the Parliamentary Inquiry Committee (CPI) on Clandestine Phone Tapping, Deputy Nelson Pellegrino (PT-BA), affirmed that the great contribution by the committee, which should present their review from end February to end March next year, will be to expose the trivialization to which the use of phone tapping in Brazil is being submitted, and to propose a regulation on its practice.

In a public hearing held on Wednesday (10), the rapporteur told about some proposals that should be included in his report, but affirmed that the final result should come from the final discussions among all congresspeople.

The committee should present proposals on the reformulation of the Law 9.296/96, which authorizes phone tapping. According to the CPIs president, Deputy Marcelo Itagiba (PMDB-RJ), despite authorizing phone tapping, the prevailing law does not regulate its use.

He affirmed that it is necessary to determine a term for the duration of tapping, to discipline the way its results can be used by the phone companies and by the authorities, and even regulate the certification of the necessary equipment.

Investigation
Pellegrino said that he will propose the requirement that interception applications be part of the police investigation. He explained that currently, when around 450,000 phone interceptions are performed per year, the decision about the establishment of an investigation is made after them, which is not admissible, due to the importance of invading people’s privacy.

“It is fundamental to guarantee that criminal orders be complied with, which say that tapping can only be performed if there is no other possible way to obtain evidences, and that is should investigate facts, and never a person”, he said. The congressman admits that it is necessary to create a mechanism for that investigation, and that the tapping application be secret, in order not to make its objective impossible.

The Assistant Attorney General of the Republic, Juarez Estevam Xavier Tavares, told that in Germany, the Attorney General has to announce every year the amount of interceptions performed, and the results of these investigations. “We have to see results coming from the use of those rigorous instruments of intervention in private life”, he said.

Leak
Pellegrino highlighted that the committee deeply debated the issue of leaks. They are prone to increase the penalty to those that break phone-tapping confidentiality. The current penalty ranges from two to four years, and can be transformed into community services at the first condemnation.

Tavares and the criminalist Cezar Roberto Bittencourt, who were invited to the public hearing, disagreed from the rapporteur. The assistant attorney believes that administrative penalties can be much harder and inhibitory to government authorities, since they can get to the loss of their civil position. For Bittencourt, the fact that the relapse takes common people to prison is also sufficient to inhibit their action.

Gaps in law
For the Assistant Attorney of the Republic, the Law 9.296/96 has gaps that should be faced by the legislators. He affirmed that it is currently clear for jurists that Brazil needs to regulate the recording of the own conversations without the authorization of the other or other people involved, and the usage that can be made of these recordings

A fundamental issue that needs to be regulated, according to the guests’ opinion, is the one of the allowed tapping time. According to Tavares, the ideal would be 30 days, with the option to prorogate them for more 30, the maximum provided for by Federal Constitution, in cases of State of Defense. In the case of permanent crimes, such as kidnappings, that period could get to up to six months. According to him, if the author of the crime is not discovered after that period of time, its extension will not be helpful.

For the criminalist Bittencourt, the term should be 15 days, which could be increased in equal periods until 60 days. He argues that undefined tapping, in addition to being considered illegal by the Federal Supreme Court, makes the transcription extremely difficult.

According to the lawyer’s opinion, it is vital that the tapping in which the complaints are based be transcribed and included in the lawsuit to permit the right to defense. He affirmed that currently the police outlines parts that he/she wants and often does not even mention the text on which the complaint is based. Even the tapping contents that leak to the media, take time to be accessible to defense.

Current law determines that investigations about crimes subject to jail penalties can use phone tapping. However, both guests believe that it would be better to specifically determine that set of crimes, because the trend is to unify all penalties which deprive from liberty. “That set should contain crimes that represent a severe damage to a determined legal good”, said Tavares.

Report - Vania Alves
Editing - Marcos Rossi
Translation - Positive Idiomas Ltda