Preservation of evidence - national proceedings

Republic of Cabo Verde

Cape Verde - Criminal Procedure Code 2005 Portuguese





Article 255

1. The interception and recording of telephone conversations or communications by means of electronic mail and the like may only be ordered or authorized by a judge's decision if there is reason to believe that such action will be highly worthwhile in order to uncover the truth or provide evidence in regard to the following crimes:

(a) crimes punishable by a maximum penalty of more than three years' imprisonment;
(b) crimes against freedom or sexual self-determination;
(c) terrorism, violent crime or highly organized crime;
(d) crimes that violate the proper protection of minors;
(e) crimes relating to drug trafficking;
(f) smuggling;
(g) insults, threats, coercion, intrusion into a person's private life, disruption and harassment, when the telephone is the means used to carry out such acts.

2. An order or authorization to intercept and record telephone conversations or communications may only be given with reference to suspects, or with reference to other individuals concerning whom there is evidence that they receive communications from the suspects or send communications to the suspects or that the suspects make use of their telephones.

3. A decision that orders or authorizes the interception and recording of telephone conversations and communications must set out the grounds on which it is based and fix a limit on the period of time over which such interception and recording is to take place. That time limit may not exceed three months, but it may be renewed for further periods of the same duration if the same admissibility criteria continue to exist.

4. It shall be prohibited to intercept or record conversations or communications exchanged between an accused and his lawyer or individuals bound by professional secrecy except in a case where such interception has to do with a criminal deed in which the lawyer of the accused is strongly suspected of also being the author of a crime, provoking a crime or being complicit in a crime.

5. The provisions contained in this article and in the articles that follow shall also apply to communications between individuals present at the same location.

Article 256
Operational formalities

1. A record shall be drawn up concerning the interception and recording referred to in the preceding article, and it, together with the recorded tapes or analogous materials and an indication of the passages on the recordings or analogous materials that are considered relevant as evidence, shall be presented within five days to the judge who ordered or authorized the interception and recording and to the Ministry of the Public Prosecutor which requested it.

2. The provisions contained in the preceding paragraph shall not prevent the competent police body concerned with criminal investigations from being informed of the contents of the intercepted communications so that it can take such precautionary measures as may be urgently required in order to preserve the evidence.

3. If the judge considers all or any part of the material collected to be relevant as evidence, he shall order that it be transcribed and that the transcription be included in the case records.

4. The accused and his interlocutor, and anyone else whose conversations were listened to, may examine the transcription referred to in paragraph 3 in order to know the content of the recordings, and may at their own expense obtain copies of the materials referred to in that paragraph.

5.The provisions of the preceding paragraph shall not apply in a situation where such action was ordered as part of the preliminary phase of an investigation and the judge who ordered the action has reason to believe that, if the accused or his interlocutor should become aware of the transcription or the recordings, that could be prejudicial to the investigation or to the ACP.

6. Without prejudice to the provisions of Articles 110 and 115, the accused and his interlocutor, and anyone else whose conversations were listened to, may ask the judge to order the transcription of materials not previously transcribed, for which purpose they shall specify which relevant items they believe to have been omitted or to have been cited out of context in the transcription referred to in paragraph 3.

Article 257
Retention and destruction of documents

1. The materials that are gathered but not transcribed shall remain accessible solely to the Ministry of the Public Prosecutor, and shall be destroyed when the final decision in the case is handed down, and all persons taking part shall be bound to maintain the secrecy of all information obtained in the course of the operations.

2. Where documentation is demonstrated to be unnecessary for purposes of the proceeding, the interested parties may, however, ask the judge who ordered or authorized the recording to have the documentation destroyed.

3. Where documentation is destroyed, such destruction shall be carried out under the judge's supervision, and such action shall be recorded in the case records.

Article 258
Should the provisions laid down in Articles 255 to 257 not be fulfilled as required, the evidence obtained shall be invalid.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(j) The protection of victims and witnesses and the preservation of evidence;