CHAIR OF THE COUNCIL OF MINISTERS

Proposal for Law No. 259 /X/4.

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Exhibition of Motives

This Law aims to adopt in the Portuguese internal order the arrangements provided for in the

Council Decision-Table 2006 /960/JAI of December 18, 2006 on the

simplification of the exchange of data and information between the national authorities of

Enforcement of the law to the competent law enforcement authorities of other member states

of the European Union, for the purposes of carrying out criminal investigations or operations of

criminal information.

With effect, the speedy and effective exchange of data and information between the forces of

security and the remaining law enforcement authorities have been heavily impeded by

formalities, administrative structures and legal obstacles laid down in the legislation

of the Member States, by imposing the adoption of measures aimed at the strengthening of the

exchange of information, with a view to lograting more security and a more effective defence of the

human rights.

For this it is necessary that the law enforcement authorities can ask for and

obtain data and information in the possession of other Member States in the different phases of the

research, from the collection of information on the offences to the research

criminal, domains in which the legal systems beholed in the various states diverge.

Without aiming to operate any modification of that diversity, the Framework Decision

2006 /960/JAI of the Council, of December 18, 2006, modeled a system that aims to

ensure a speedy exchange of certain types of data and information

considered vital.

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Proposal for Law No. 259 /X/4.

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Being manifestly negative the consequences of the absence of a framework

common legal for the speedy and effective exchange of data and information, it was intended

bridging the gap by approving a legally binding instrument on the

simplification of the exchange of data and information.

However, soon at the time of the respective approval, it became clear that the new instrument did not

should affect the instruments, existing or future, aimed at broadening the objectives

underlying the initiative or likely to facilitate the procedures for exchange of

data and information.

It was also rightly pointed out the importance of promoting an exchange of

reach information as broad as possible, in particular with regard to

offences directly or indirectly linked to organised crime and terrorism,

extending existing devices.

In 2007, following the entry into force of the Treaty of Prüm between Belgium, the

Germany, Spain, France, Luxembourg, the Netherlands and Austria, concerning the

deepening of cross-border cooperation, in particular in the field of the fight against the

terrorism, cross-border crime and illegal migration, consensus has been reached

policy to incorporate the content of the provisions of the Treaty into the framework

legal of the European Union. It was thus prepared, at the initiative of the German Presidency, with

highlighted impulse during the Portuguese Presidency of the Council of the Union, the Decision

2008 /615/JAI of the Council, which came to have final approval on June 23, 2008,

on the deepening of cross-border cooperation, in particular in the field of

fight against terrorism and cross-border crime.

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Proposal for Law No. 259 /X/4.

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Adding to that it follows from Council Framework Decision 2006 /960/JAI of 18 of

December 2006, Council Decision 2008 /615/JAI of June 23 (" Decision to

Prüm ") has come to regulate the conditions and procedures for the automated transfer of

DNA profiles, dactiloscopic data and certain national data from the register of

registration of vehicles. Fixed also rules with a view to transmitting so much data

related to important events of cross-border reach, such as information

for the prevention of terrorist attacks and delineated new modalities of

deepening of cross-border police cooperation.

With a view to needing the framework applicable to the exchange of data and information, the

Council approved a supplementary decision on the execution of the Prüm decision, the

Decision 2008 /616/JAI of the Council of June 23, 2008.

These initiatives have come to broaden and complexify the legal mosaic of which they were part of

Joint Action 97 /339/JAI, concerning cooperation in order and security

public and the Framework Decision of June 13, 2002 on joint teams of

research, successively enriched with new components, with emphasis on the

Council Framework Decision on the exchange of information on the basis of

principle of availability and the Framework Decision on the protection of personal data in the

scope of the third pillar.

It is added that the work of cooperation between the Member States has already led to the elaboration of

a handbook of good practices aimed at police forces, which aims to define, in a simple way

and practical, their responsibilities and obligations in data protection.

In the face of such dynamics, the need to create in our legal order has been strengthened.

mechanisms and procedures to whose adoption the Portuguese Republic is bound by

force of Council Framework Decision 2006 /960/JAI of December 18, 2006.

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Proposal for Law No. 259 /X/4.

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It is possible to do so in the propitious framework arising from the revision of the Internal Security Act and

of the Criminal Investigation Organization Act, whose priority objectives were

precisely the strengthening of the coordination between forces and security services and the incentive to

sharing of information. Incidentally, the definition of rules for the desired exchange between the

own national authorities can benefit significantly from the system modelled by the

Council Decision 2006 /960/JAI of the Council of December 18, 2006.

The National Data Protection Commission was heard.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

CHAPTER I

General provisions and definitions

Article 1.

Subject

Object and scope of application

1-A This Law applies to the application and the 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 the realization of

criminal investigations or operations of criminal information.

2-The exchange of data and information between the law enforcement authorities in the Union

European is based on the principle of availability and carried out in compliance with the

provisions laid down in Council Framework Decision 2006 /960/JAI of December 18, 2006,

on the simplification of the exchange of data and information between the authorities of

implementation of the law of the Member States of the European Union.

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Article 2.

Definitions

For the purposes of this Law, it is understood by:

a) "competent authority of law enforcement", a police authority, customs or

other, with the exception of services or units that specifically depart the

national security issues, enabled by domestic law to detect, prevent and

investigate offences or criminal activities and, in the context of such functions, the

exercise the authority and take coercive measures, being, in the respect of the Republic

Portuguese, one of the following:

-Judicial Police;

-Republican National Guard;

-Public Security Police;

-Directorate General of Customs and Special Taxes on Consumption;

-Other criminal police bodies of specific competence;

b) "Criminal investigation", a procedural phase in which by an authority

competent to implement the law are made representations within the meaning of Article 1 of the Law

n. 49/2008 of August 27;

c) "Operation of criminal information", a procedural phase, prior to the phase of the

criminal investigation, in whose scope a competent authority of application of the

law is legally entitled to collect, to treat and to analyze information about

offences or criminal activities, with the aim of determining whether they have been or

concrete criminal acts may come to be committed;

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Proposal for Law No. 259 /X/4.

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d) "Data and / or information":

i) Any type of data or information in the possession of the authorities of application

of the law; and

ii) Any kind of data or information in the possession of public authorities or

private entities, to which law enforcement authorities have access without

have recourse to the application of means of obtaining proof referred to in point (s) c)

of Article 3 (1). the

;

e) "Infringements": those referred to in para.

2 of Article 2 para.

of Law No. 65/2003, of 23

of August.

Article 3.

Limits of the duty of cooperation

1-A This Law shall not determine any obligation to:

a) Collect and conserve data and information, with the aim of providing them with

competent law enforcement authorities of other member states;

b) Provide data or information to be used as a means of proof before

a judicial authority;

c) Obtain data or information through means of obtaining proof, such as

defined by Portuguese domestic law.

2-A This Law does not confer any right to use, as a means of proof in the face of a

judicial authority, the data or information that through the mechanisms in it

predicted to be transmitted.

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3-A Portuguese entity that has provided data or information, under the

instruments of judicial cooperation in force between the member states and the

present law, you will have to give your consent for these to be used as a medium

of proof before a judicial authority, unless it has already done so at the time of the

respective transmission.

Article 4.

Equal treatment

1-Are applicable to the exchange of data and information, pursuant to this Law,

identical conditions to the legally provided for the communication of data and information

between the national authorities provided for in the paragraph a) of Article 2 para.

2-The exchange of data and information, pursuant to this Law, is not dependent on

agreement or judicial authorization when the requested authority can, in the cases and terms

legally provided for, have access to the data without such a requirement.

3-In cases where access to data or information is legally dependent on agreement or

of authorization of judicial authority, must the same be requested by the authority

required by the competent judicial authority, in order to be decided in accordance with

rules identical to those applicable to national authorities.

4-Where they have been obtained from another member state or from a third country

and having been collected for determined, explicit and legitimate purposes, are

subordinated to the principle of purpose, the requested data or information can only

be passed on to the competent law enforcement authority of another member state

with the consent of the member state or of the third country that provided them.

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Proposal for Law No. 259 /X/4.

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Article 5.

Secret of justice and professional secrecy

1-National law enforcement authorities give compliance, in each case of

exchange of data or information, to the requirements arising from the current legislation

on secrecy of justice, ensuring, in accordance with domestic law, the

confidentiality of all data and information that revises such a nature.

2-Who, in the exercise of their duties, take knowledge of data, whose knowledge

by the public not to be admitted by the law, it is obliged to professional secrecy, on the terms

of Article 17 (17) and (17) of the Personal Data Protection Act (LPDP).

CHAPTER II

Exchange of data and information

Article 6.

Provision of data and information

1-The data and information for the purposes of detection, prevention or investigation of a

infringement are provided:

a) Upon request by a competent law enforcement authority which, acting

within the scope of the competences conferred on it by domestic law, conduct

a criminal investigation or an operation of criminal information;

b) In a spontaneous manner, pursuant to Article 11 of this Law.

2-Data or information is also exchanged with Europol and Eurojust, in the

measure in which the exchange relates to an offence or an activity

criminal who falls within his mandates, in the terms defined by the instruments

in force on the respective assignments and competences.

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Proposal for Law No. 259 /X/4.

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Article 7.

Requests for data and information

1-In the application must be:

a) Nominees the facts that lead to make believe that the requested authority has

relevant data and information;

b) Explained the purposes for which the data and information are requested, well

as the relationship between such purposes and the person to which they relate.

2-The requests for data or information shall include at least the elements

constants of Annex B.

Article 8.

Deadlines for the provision of data and information

1-Are the subject of response within the maximum of eight hours the urgent requests for data and

information relating to the offences referred to in para.

2 of Article 2 of the Decision-

Table 2002/584/JAI, should the requested data or information be contained

on a database to which the requested authority has direct access, by applying,

when this is not possible, the following rules:

a) If the answer cannot be given within eight hours, the requested authority

shall state the reasons for such impossibility in the form set out in Annex A.

b) If the supply of the data or information within an eight-hour period represents

a disproportionate burden, the requested authority may postpone its transmission,

immediately communicating the adjournment to the requesting authority and providing the

data or information requested as soon as possible, at the latest in the

three-day deadline.

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2-Are the subject of response within the maximum of one week the non-urgent applications of

data or information relating to the offences referred to in para.

2 of Article 2 para.

of the Law

n. 65/2003 of August 23, should the requested data or information be

contained in a database to which the requested authority has direct access,

owing, when this is not possible, to indicate the reasons for such impossibility in the

constant form of Annex A.

3-In the remaining cases, the requested data or information is communicated to the authority

applicant within fourteen days, and should be indicated, when this is not possible,

the reasons for such impossibility, through the form set out in Annex A.

Article 9.

Refusal of transmission of data or information

1-Without prejudice to the application of the provisions of Article 4 (1), it may be refused the

provision of data or information if there are factual reasons to assume that the

provision of the data or information:

a) It would affect essential national security interests of the Portuguese Republic; or

b) It would put at risk the success of an ongoing investigation, of a transaction of

criminal information or still the safety of people; or

c) It would be clearly disproportionate or irrelevant in relation to the purposes for which

has been requested.

2-Where the application relates to an offence which, under the Portuguese law is

punishable with imprisonment equal to or less than one year, the requested authority may

refuse to provide the requested data or information.

3-The provision of data or information is always refused if the judicial authority

competent not to authorize the access and exchange requested pursuant to paragraph 3 of the

article 4 para.

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Proposal for Law No. 259 /X/4.

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Article 10.

Channels of communication and language

1-The exchange of data and information under this Act shall be carried out through

of the Sirene offices, Interpol or Europol.

2-Can be used all the working languages provided for in the legal instruments that

frame the functioning of the offices referred to in the preceding paragraph.

3-Compete to the Secretary General of the Internal Security System guarantee to the authorities

that this law applies to access to data and information, in accordance with its

needs and competences.

Article 11.

Spontaneous exchange of data and information

1-Without prejudice to the provisions of Article 8, the national authorities provided for in the a) from the

article 2 shall, without prior solicitation, provide data and information to authorities

competent law enforcement of other Member States concerned, in cases in

that there are factual reasons to believe that such data and information may contribute

for the detection, prevention or investigation of the offences referred to in paragraph 2 of the

Article 2 of Law No 65/2003 of August 23.

2-The provision of data and information shall be limited to what is considered

relevant and necessary for the success of the detection, prevention or research of the

infringement or the criminal activity in question.

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Proposal for Law No. 259 /X/4.

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CHAPTER III

Protection of data

Article 12.

Applicable regime

1-Prior to the actual transmission, the requested data and information remain subject to the

legislation in force that ensures the respective protection.

2-The rules for the protection of data provided for the use of the channels of communication to

Reference to Article 10 (1) shall apply to the procedure for the exchange of

data and information provided for in this Law.

3-A use of data and information, which have been the subject of direct exchange or

bilateral under this Law, shall be subordinated to the national provisions of

data protection of the member state that receives them, sensing it applicable the same

rules that protect the data and information collected in that member state.

4-In cases where Portugal is the requested member state, the personal data are

protected in accordance with the provisions of the LPDP.

Article 13.

Limits to use

1-The data and information, including the personal data, provided under the present

law may only be used by the requesting authorities for the purposes for which they were

provided, or to prevent serious and immediate threats to public safety.

2-When providing data and information in accordance with this Law, the national authority

competent may, in 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.

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3-Conditions may also be imposed regarding the communication of the result of the

criminal investigation or the operation of criminal information in the context of which

has been carried out the exchange of data and information, as well as on the

use and the subsequent processing of the data and information transmitted.

4-A eventual transfer to third party countries of data and information provided to

under this Act will only take place when adequate protection in the area is ensured

in cause.

Article 14.

Communication by electronic means

1-Whenever the technical conditions permit, the communication of data to the authorities

applicants may take place by electronic means.

2-A communication of data pursuant to the previous number dispensing your submission

subsequent in physical support.

3-The authorities required under this Act shall adopt the technical measures and

proper organizers to protect personal data against accidental destruction or

unlawful, the accidental loss, alteration, diffusion or unauthorized access, inter alia

when the processing involves its transmission by a network or making it available

through the granting of automated direct access as well as against any other

form of illicit treatment, and shall prevent the consultation, modification, deletion,

added, destruction or communication of data by non-consented form by the

present law.

4-As far as automated processing of data is concerned, they must be adopted

measures aimed at:

a) Prevent the access of any unauthorized person to the equipment used for

the processing of personal data (control of access to equipment);

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Proposal for Law No. 259 /X/4.

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b) Prevent data supports from being able to be read, copied, changed or withdrawn

by an unauthorised person (control of the data supports);

c) Prevent the unauthorized introduction of data into the archive, as well as any

taking of knowledge, alteration or unauthorized erasure of data

personal entered in the file (control of the data file);

d) Preventing automated data processing systems from being used by

unauthorized persons by means of data transmission equipment

(control of use);

e) Ensure that people authorized to use the automated treatment system

of data only have access to the data covered by your authorization of

access (control of access to data);

f) Ensure that you can check and establish to which instances the personal data

have been or may be transmitted or provided by using equipment from

data communication (control of transmission);

g) Ensure that you can check and establish a posteriori what personal data

introduced in the automated data processing systems, when and by

who (control of the introduction);

h) Prevent personal data from being able to be read, copied, altered or deleted

by an unauthorized person during transfers of personal data or during

the transport of data supports (control of transport);

i) Ensuring that the systems used can be repaired in the event of a breakdown

(recovery of the equipment); and

j) Ensuring that the system works, that the operating errors are signalled

(reliability) and that the archived data is not distorted by any errors of

operation of the system (integrity).

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Article 15.

National Data Protection Commission

The National Data Protection Commission exercises control of the communication of the data

and of the remaining operations provided for in this Law, and may carry out audit representations

the procedures and technological support platforms used and exert all the

too much supervisory skills provided for in the current legislation.

CHAPTER IV

Final provisions

Article 16.

Extent of application

The provisions of this Law shall apply, with due adaptations, to the communication of data

and information between forces and security services, in the terms and for the effects of

provisions of Article 6 (2) of Law No 53/2008 of August 29.

Seen and approved in Council of Ministers of March 11, 2009

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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Proposal for Law No. 259 /X/4.

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ANNEX A

EXCHANGE OF DATA UNDER THE FRAMEWORK DECISION 2006 /960/JAI

FROM THE HO* OJ L 386, OF 12/29/2006 / FORM TO BE USED IN THE

CASES OF TRANSMITT//DELAY / REFUSAL OF INFORMATION

The present form shall be used by the national authorities to transmit the

data and / or the required information and inform the requesting authority of the impossibility

of meeting the normal deadlines, of the need to submit the application to the assessment of a

judicial authority for authorization or refusal to transmit data.

The form can be used more than once in the course of the process (p. ex. if the

request, in a first phase, to be submitted to a judicial authority and come

subsequent to the fact that their execution should be refused).

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Proposal for Law No. 259 /X/4.

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CHAIR OF THE COUNCIL OF MINISTERS

Proposal for Law No. 259 /X/4.

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CHAIR OF THE COUNCIL OF MINISTERS

Proposal for Law No. 259 /X/4.

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ANNEX B

EXCHANGE OF DATA UNDER THE FRAMEWORK DECISION 2006 /960/JAI

FROM THE COUNCIL / REQUEST FORM FOR DATA AND INFORMATION TO

USE BY THE APPLICANT MEMBER STATE

The present form shall be used to request data and information under the

Decision-Table 2006 /960/JAI of December 18, 2006 (OJ L 386, 12/29/2006, p.

89):

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Proposal for Law No. 259 /X/4.

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Proposal for Law No. 259 /X/4.

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CHAIR OF THE COUNCIL OF MINISTERS

Proposal for Law No. 259 /X/4.

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