Principle nemo tenetur se ipsum accusare and the means of evidence attainment in Cybercrime Law

Abstract

Portugal has evolved with regard to the relevance given to crimes committed in the digital environment. It has been a constant concern, especially since 2009, to understand the particular environment in which cybercriminals operate. From the transposition of European Directives to specific legislative creation, much has been done in this field. But what about the means of obtaining evidence, in particular, with regard to the precaution of safeguarding a Fundamental Right of the accused, which is their right not to self-incrimination (Nemo tenetur se ipsum accusare)? In terms of national legislation, what can be verified is that there is still a risk of seeing a right that is constitutionally foreseen violated, due to lack of knowledge of what should be, for example, the procedure, when what is sought to obtain on the part of the accused is access to a password that protects self-incriminating documents. Thus, the right to non-self-incrimination is addressed, as constitutionally protected, in the context of the Cybercrime Law, whose principles are the same as the ones contained in the Criminal Procedural Law (or, as advocated by some doctrine, the applied Constitutional Law). The article discusses criminal procedural law and the accused right to non-self-incrimination in the light of the Cybercrime Law.