Wiretap Scandal: Portugal’s Prosecutor Reaffirms Judges’ Mandatory Approval

Portuguese citizens still mystified by the recent wave of political scandals received an unexpected reassurance this week: the nation’s chief prosecutor insists that every phone tap in a criminal case must first clear a judicial checkpoint. The reminder comes at a tense moment, when faith in the country’s justice system hangs in the balance and whispers of “illegal surveillance” swirl around major investigations.

At a Glance

• All wiretaps need a green light from an investigating judge—never from the Public Prosecutor’s Office acting alone.

• The rule is grounded in the Constitution’s guarantee of privacy in communications and codified in Articles 187-190 of the Código de Processo Penal.

• Even high-profile names such as former prime minister António Costa surfaced only incidentally in authorized taps, according to the Prosecutor-General.

• Taps are capped at 3 months but can be renewed if a judge gives a reasoned order.

• A 2024 statute on telecoms metadata, Law 18/2024, tightened judicial control instead of loosening it.

Why the Clarification Matters to Portugal

The assertion by Prosecutor-General Amadeu Guerra may look like mere legal housekeeping, yet it targets a deeper anxiety: whether ordinary safeguards still apply when the stakes are political. In a country where corruption trials frequently drag on for years, public confidence rests on knowing that investigators cannot “plug in the recorder” without a magistrate’s say-so. Guerra’s statement therefore functions as a pressure valve, reminding the public that checks and balances remain intact—even when a case rocks the national palace.

Step-by-Step: How a Wiretap Gets the Judge’s Stamp

The Public Prosecutor submits a detailed request explaining why less intrusive methods will not do.

An investigating judge assesses whether the target crime sits inside the limited “catalogue” of serious offences—terrorism, drug trafficking, corruption, and similar.

If satisfied, the judge issues a reasoned order authorizing interception for up to 90 days.

Every 15 days police technicians deliver sealed recordings, while the judge reviews logs and can delete irrelevancies.

Renewals repeat the cycle, each demanding fresh judicial justification.

Insiders describe the routine as one of the most scrutinised workflows in Portuguese criminal procedure, a deliberate brake on investigative zeal.

‘Operation Influencer’: Anatomy of a Public Scare

The November scandal that toppled a prime minister injected fresh drama into the debate. Seven phone intercepts—six of them unanswered calls—captured António Costa’s voice by accident, and the Supreme Court was not told immediately. The lapse, chalked up to “technical reasons,” gave critics ammunition to claim that prosecutors were overreaching their mandate. Guerra countered by noting that a Central Criminal-Instruction judge had already been monitoring the recordings, and that Costa was never an official surveillance target. Nonetheless, the episode fuelled demands for stronger oversight tools, especially when the investigation brushes against Portugal’s highest offices.

What the Statute Book Actually Says

Portuguese law brands phone tapping an ultima ratio measure—exceptional, proportionate, necessary. The Constitution’s Article 34 bars state intrusion unless a judge concludes that no other evidence channel will work. Current rules also:

• ban listening to conversations between a suspect and lawyer unless those chats are themselves criminal;

• require destruction of material “manifestly foreign” to the case;

• treat procedural missteps as nullities, making such evidence unusable in court.

By European standards, analysts call the framework stringent but workable—a model anchored in human-rights jurisprudence from Strasbourg.

The Expert View: Balance or Burden?

Criminal-law scholars diverge on whether Portugal now leans too heavily on the wire. Some, like professor Fátima Mata-Mouras, see taps as indispensable against organised crime networks adept at encryption. Others, including Bar Association leader João Massano, fear an “investigate first, justify later” culture that keeps citizens under the microphone for far too long. Both camps, however, converge on one point: judicial supervision remains the keystone that stops the system from sliding into surveillance overkill.

Looking Ahead: Tech Shifts, Legal Tweaks

Encrypted messaging, cloud-based calling and ephemeral audio apps are already challenging the 1990s vocabulary of the Code of Criminal Procedure. Yet, every legislative working group since 2020 has circled back to the same principle: any assault on privacy must run through a judge. Draft proposals under discussion in Parliament would merely refine definitions, upgrade cyber-forensics protocols, and streamline the destruction of irrelevant data; they do not foresee scrapping judicial sign-off.

For now, Guerra’s reminder acts as a public ledger entry: no Portuguese phone is tapped without a judge’s ink. Whether that promise can withstand tomorrow’s technologies—and tomorrow’s scandals—will test the resilience of the country’s legal architecture.