Fiches Belges

GPS - "Global Positioning System" ("GPS") - is a means of evidence frequently used by law enforcement agencies. It consists of a satellite-based global positioning system, which provides a mobile receiver with its position, time information, at any location on Earth at any time. In case-law, three positions have been demarcated: (i) those who believe that GPS constitutes an intrusion into the private life of the suspect or defendant lacking express legal authorisation, and as such, not permitted under Portuguese law; (ii) those who believe that express legal authorisation is necessary but that, in its absence, article 187 of the Code of Criminal Procedure should be applied analogously, i.e. the regime defined for cellular location; and (iii) finally, those who believe that there is no intrusion into the private life of the target and that, as this is an atypical covert method, it is admissible under Article 125 of the Code of Criminal Procedure.

According to the position that the placing of the GPS (locator) follows the regime applicable to cellular tracking – article 187.º CCP - , this will only be admissible on request by the Public Prosecutor's Office and on a reasoned order from the investigating judge as regards crimes a) Punishable by imprisonment for a maximum of more than 3 years; b) Related to drug trafficking; c) For possession of a prohibited weapon and arms trafficking; d) Smuggling e) Insults, threats, coercion, invasion of privacy and disturbance of peace and quiet, when committed by telephone; f) Threatening with a crime or abuse and simulation of danger signals; or g) Escape, when the accused has been convicted of any of the crimes under the previous sub-paragraphs.

This will only be admissible on request by the Public Prosecutor's Office and/or on a reasoned order from the investigating judge. Portuguese jurisprudence, doctrine and practice of prosecutors differ regarding the necessity (or not) of specific judicial authorization in what concerns placing of a GPS device on a vehicle. This being said, in principle, either a prosecutor or a judge would decide this matter if a foreign request was received.

Portuguese and Spanish (for Spain only).

And it may only be authorised against a suspect or defendant, a person serving as an intermediary or victim of the crime, with their effective or presumed consent.