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PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 1 explanatory memorandum this law aims to adopt in Portuguese internal order the measures provided for in the framework decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between the law enforcement authorities to the competent law enforcement authorities of other Member States of the European Union for the purpose of conducting criminal investigations or criminal intelligence operations. Indeed, the rapid and efficient exchange of data and information between the security forces and other law enforcement authorities has been heavily hampered by formalities, administrative structures and legal obstacles laid down in the legislation of the Member States, and the adoption of measures aimed at strengthening the exchange of information, with a view to achieving greater safety and a more effective protection of human rights. This requires that law enforcement authorities can ask for and obtain data and information held by other Member States at different stages of investigation, from the collection of information on offences to the criminal investigation, areas in which the legal systems in force in the various States differ. Without wishing to operate any modification of this diversity, the framework decision 2006/960/JHA of 18 December 2006, modelled a system that aims to ensure a swift exchange of certain kinds of data and information considered vital.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 2 Being clearly negative consequences of the absence of a common legal framework for the rapid and efficient exchange of data and information, it was intended to bridge the gap, by adopting a legally binding instrument on simplifying the exchange of data and information. However, just at the time of its adoption, it was clear that the new instrument should not affect existing or future instruments, designed to broaden the objectives underlying the initiative or likely to facilitate the procedures for Exchange of information and intelligence. It was also pointed out the importance of promoting an exchange of information of the widest possible scope, in particular as regards offences directly or indirectly linked to organized crime and terrorism, by extending the existing devices. In 2007, following the entry into force of the Treaty of Prüm between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, political agreement was reached in order to incorporate the content of the provisions of the Treaty on the legal framework of the European Union. Was so prepared on the initiative of the German Presidency, with seconded impulse during the Portuguese Presidency of the Council of the European Union, the decision 2008/615/JHA, which came to have final approval on 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 3 adding to what arises from the framework decision 2006/960/JHA of 18 December 2006, the decision 2008/615/JHA of 23 June ("Prüm Decision") to regulate the conditions and procedure for the automated transfer of DNA profiles, Dactyloscopic data and certain national vehicle registration record. Fixed also rules with a view to both transmission of data related to important events of cross-border reach, as information for the prevention of terrorist attacks and outlined new modalities of deepening cross-border police cooperation. In order to clarify the applicable framework for the exchange of data and information, the Council adopted a decision on the implementation of the Prüm decision, the decision 2008/616/JHA of 23 June 2008. These initiatives have come to extend and complicate the legal mosaic that included joint action 97/339/JHA with regard to cooperation in the field of public order and security and the framework decision of 13 June 2002 on joint investigation teams, successively enriched with new components, with emphasis on the Council framework decision on the exchange of information on the basis of the principle of availability and the framework decision on the protection of personal data under the third pillar. Moreover, the work of cooperation between the Member States has led to the preparation of a manual of good practice for the police forces, which aims to define, so simple and practical, their responsibilities and obligations in the field of data protection. In the face of such dynamics, was reinforced the need to create in our legal system the mechanisms and procedures whose adoption the Portuguese Republic is bound under the framework decision 2006/960/JHA of 18 December 2006.
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Is it possible to do so in the framework resulting from the review of the Internal Security Act and the law of Organization of Criminal investigation, whose priorities were precisely the strengthening of coordination between forces and security services and encouraging the sharing of information. In fact, the definition of rules for the desired exchange among national authorities themselves can benefit significantly from system modeled by the framework decision 2006/960/JHA of 18 December 2006. Was heard the National Commission for Data Protection. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I General provisions and definitions Article 1 subject-matter subject-matter and scope 1-this Act applies to the request and transmission of data and information by the national law enforcement authorities to the competent law enforcement authorities of other Member States of the European Union for the purpose of conducting criminal investigations or criminal intelligence operations. 2-the exchange of information and intelligence between law enforcement authorities in the European Union is based on the principle of availability and carried out in accordance with the provisions of framework decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 5 article 2 definitions for the purposes of this law: (a)) ' competent authority ' law enforcement, a police, customs or other authority, with the exception of services or units engaged specifically to matters of national security, enabled by national law to detect, prevent and investigate offences or criminal activities and in the context of these functions, to exercise authority and take coercive measures, and as regards the Portuguese Republic, one of the following:-judicial police;
-National Republican Guard;
-Public Security Police;
-Directorate-General of customs and excise duties;
-Other organs of criminal-specific competence; b) ' criminal investigation ' means a procedure in which stage by a competent law enforcement authority are made arrangements within the meaning of article 1 of law No. 49/2008, of 27 August; c) "criminal intelligence operation ' means a procedural stage, prior to the phase of criminal investigation, in which a competent law enforcement authority is legally entitled to collect, process and analyze information about offences or criminal activities, in order to determine whether they have been or may be committed specific criminal acts;
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 6 d) «data and/or information»: i) Any kind of data or information in the possession of the law enforcement authorities; and ii) any data or information held by public authorities or private entities, which law enforcement authorities have access without resorting to the application of means of obtaining evidence referred to in point (c)) of paragraph 1 of article 3.
the; e) «» Offences: those referred to in paragraph 2 of article 2 of the law No. 65/2003, of 23 August. Article 3 Limits the duty of cooperation 1-the present law does not determine any obligation: the) collapse and save data and information in order to provide the competent authorities with law enforcement agencies of other Member States; b) provide data or information for use as evidence before a judicial authority; c) obtain data or information through means of obtaining evidence, as defined by national law Portuguese. 2. this law does not confer any right to use, as evidence before a judicial authority, the data or information through the mechanisms it laid down to be transmitted.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 7 3-the Portuguese entity that has provided data or information, to the shelter of the instruments of judicial cooperation in force between the Member States and of the present law, will have to give your consent if they are to be used as evidence before a judicial authority, unless it has already done at the time of its transmission. Article 4 equality of treatment-1 shall apply to the exchange of data and information in accordance with this law, the terms and conditions legally provided for the communication of data and information between the national authorities provided for in article 2 (a)) 2-the exchange of information and intelligence in accordance with this law, does not depend on agreement or judicial authorization when the requested authority may where legally stipulated terms, and have access to the data without such requirement. 3-in cases where access to data or information legally dependent on agreement or judicial authority, authorization must be requested by the requested authority to the competent judicial authority, in order to be decided according to rules similar to those applicable to national authorities. 4-where they have been obtained from another Member State or a third country and having been collected for determined, explicit and legitimate purposes, are subordinate to the principle of purpose, the requested information or data may only be transmitted to the competent law enforcement authority of another Member State with the consent of the Member State or third country which the provided.
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Article 5 confidentiality of Justice and professional secrecy 1-The national law enforcement authorities implement, in each case of exchange of data or information, to the requirements arising from the existing legislation on secrecy of Justice, ensuring, in accordance with national law, the confidentiality of all data and information that are about nature. 2-Who, in the performance of his duties, becomes aware of data, whose knowledge by the public is not admitted by the law, is bound to professional secrecy, in accordance with the provisions of paragraphs 1 and 4 of article 17 of the law of protection of personal data (LOPD). CHAPTER II exchange of information article 6 provision of information 1-the data and information for the purpose of detection, prevention or investigation of an offence are provided: a) at the request of a competent law enforcement authority who, acting under the powers conferred on it by law, conduct a criminal investigation or a criminal intelligence operation; b) spontaneously, in accordance with article 11 of this law. 2-the data or information is also exchanged with Europol and Eurojust insofar as the Exchange relates to an offence or criminal activity within in their mandates, as defined by the instruments in force on their duties and responsibilities.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 9 Article 7 requests for data and information 1-The application must be: a) the facts which lead to the impression that the requested authority offers data and relevant information; b) set out the purposes for which it is requested the data and information, as well as the relationship between such person and the purposes to which they relate. 2-requests for information or intelligence shall contain at least the elements set out in annex b. Article 8 deadlines for the provision of data and information 1-Are the subject of reply within 8 hours the urgent requests of data and information relating to the offences referred to in paragraph 2 of article 2 of the framework Decision 2002/584/JHA If the requested information or data are contained in a database that the requested authority has direct access, and, where this is not possible, the following rules: a) If the answer cannot be given within 8 hours, the requested authority shall indicate the reasons for this inability in the form contained in annex b) If the provision of the data or information within 8 hours represent a disproportionate burden , the requested authority may postpone the transmission immediately communicating your postponement to the applicant authority and providing the data and information requested as soon as possible, at the latest within three days.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/10 2-4 Are answered within a week the non-urgent requests for data or information relating to the offences referred to in paragraph 2 of article 2 of the law No. 65/2003, of 23 August, if the requested information or data are contained in a database that the requested authority has direct access and, when this is not possible, indicate the reasons for this inability in the form set out in annex a. 3-in all other cases, the requested information or data are communicated to the applicant authority within fourteen days, and should be given, where this is not possible, the reasons for this inability, using the form set out in annex a. Article 9 Refusal of data transmission or information 1-Without prejudice to the application of the provisions of paragraph 1 of article 4 , can be refused the provision of data or information if there are factual reasons to assume that the provision of data and information: a) would affect essential national security interests of the Portuguese Republic; or b) would jeopardise the success of an ongoing investigation, a criminal intelligence operation or the safety of persons; or c) would clearly be disproportionate or irrelevant with regard to the purposes for which it was requested. 2-where the request relates to an offence which, under Portuguese law is punishable with imprisonment not exceeding one year, the requested authority may refuse to provide data or information requested. 3-the provision of data or information is always refused if the competent judicial authority does not authorize access and Exchange requested pursuant to paragraph 3 of article 4 of the COUNCIL of MINISTERS PRESIDENCY Proposal of law No. 259/X/4th 11 article 10 1 language and communication Channels-the exchange of information and intelligence under this law shall be carried out by the Sirene bureaux , Interpol or Europol. 2-can be used all working languages provided for in the legal instruments which fall under the operation of the offices referred to in the preceding paragraph. 3-it is the Secretary General of the internal security system to ensure the authorities that applies to this Act the access to data and information, according to your needs and skills. Article 11 spontaneous exchange of information 1-Without prejudice to article 8, the national authorities referred to in point (a)) of article 2 shall, without prior request, provide data and information to the competent law enforcement authorities of other Member States concerned, in cases where there are factual reasons to believe that such data and information may contribute to the detection , prevention or investigation of offences referred to in paragraph 2 of article 2 of the law No. 65/2003, of 23 August. 2-the supply of data and information should be limited to what is considered relevant and necessary for the successful detection, prevention or investigation of an offence or criminal activity in question.
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CHAPTER III article 12 data protection Regime applicable 1-before the effective transmission, the data and information requested remain subject to the legislation in force that ensures its protection. 2-the rules of data protection provided for when using the communication channels referred to in paragraph 1 of article 10 shall apply the procedure for Exchange of information and intelligence provided for by this law. 3-the use of data and information, which have been exchanged directly or bilaterally under this law, shall be subject to the national provisions of data protection of the receiving Member State, shall be subject to the same rules that protect the data and information collected in that Member State. 4-where Portugal is the requested Member State, the personal data are protected in accordance with the provisions laid down in the LOPD. Article 13 the use Limits 1-information and intelligence, including personal data, provided under this law may only be used by the requesting authorities for the purpose for which it was provided, or to prevent serious and immediate threats to public safety. 2-To provide data and information in accordance with this law, the competent national authority may, on application of the legal framework in force, impose conditions for the use of such data and information by the authority to which they are provided.
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/13 3-4 may also be imposed conditions relating to the communication of the outcome of the criminal investigation or criminal intelligence operation in the context of what has been accomplished the exchange of data and information, as well as on the use and the subsequent treatment of data and information transmitted. 4-the possible transfer to third countries of data and information provided under this law will take place only when adequate protection is ensured in the area concerned. Article 14 communication by electronic means 1-where the technical conditions allow, the data communication to the requesting authorities may take place by electronic means. 2-data communication pursuant to paragraph 1 subsequent to the sending your physical media. 3-the requested authority pursuant to this law shall take appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission over a network your or your provision by granting direct automated access, and against all other unlawful forms of processing and should prevent the query, modifying, deleting, adding, the destruction or data communication for unapproved form by this law. 4-with regard to the automatic processing of data, steps must be taken to:) prevent access from any unauthorized person to equipment used for processing personal data (equipment access control);
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 14 b) prevent the data can be read, copied, modified or removed by an unauthorized person (control of data media); c) Prevent the unauthorised data in the file, as well as any knowledge, alteration or unauthorized deletion of personal data inserted in the file (file control); d) prevent automated data processing systems are used by unauthorised persons by means of data transmission equipment (control of use); e) ensure that persons authorised to use the automated data processing system only have access to the data covered by your access authorisation (data access control); f) ensure that it is possible to verify and establish to which bodies personal data have been or may be transmitted or made available using data communication equipment (control of transmission); g) ensure that it is possible to check and establish a posteriori what personal data introduced in automated data processing systems, when and by whom (control of introduction); h) prevent the personal data can be read, copied, modified or deleted by an unauthorized person during transfers of personal data or during transportation of data media (transport control); I) ensure that the systems used can be repaired in the event of a malfunction (recovery of the equipment); and j) ensure that the system works, that the malfunctions are reported (reliability) and that stored data cannot be corrupted by means of a malfunctioning of the system (integrity).
PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 15 article 15 National Commission for data protection the data protection Commission exercises control of data communication and other operations provided for in this Act, and may perform audit steps and procedures to support technological platforms used and exercise all other powers of supervision provided for in the legislation in force. CHAPTER IV final provisions article 16 scope of application the provisions of this law shall apply mutatis mutandis to communication of data and information between forces and security services, under the terms and for the purposes of paragraph 2 of article 6 of law No. 53/2008, of 29 August.
Seen and approved by the Council of Ministers of 11 March 2009 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency, PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 16 Annex A DATA EXCHANGE UNDER Council framework decision 2006/960/JHA * OJ L 386, 29.12.2006/form of the USE in CASES of TRANSMISSION/INFORMATION/ATRASO/RECUSA this form must be used by national authorities to transmit data and/or the information required and inform the applicant authority of the impossibility of fulfilling the normal deadlines, of the need to submit the request to a judicial authority for authorization or refusal of data transmission. The form can be used more than once in the course of the procedure (e.g. If the application, initially, have to be subjected to a judicial authority and subsequently to verify that your implementation must be refused).
PRESIDENCY OF THE COUNCIL OF MINISTERS
Draft law No. 259/X/4th 17 PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/18 fourth PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 19 ANNEX B DATA EXCHANGE UNDER Council framework decision 2006/960/JHA/FORM of REQUEST data and information to be used by the REQUESTING MEMBER STATE this form must be used to request information and intelligence under framework decision 2006/960/JHA , 18 December 2006 (OJ L 386, 29.12.2006, p. 89 of): PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/20 fourth PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/21 fourth PRESIDENCY of the COUNCIL of MINISTERS draft law No. 259/X/4th 22
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