Functional guarantees, introduced by Law no. 124/2007, exempt AISE and AISI agents from punishment when, while performing their duties, they engage in forms of conduct deemed by the law to constitute a criminal offence.
Functional guarantees also apply to individuals who are not members of the Agencies when their activities are indispensable and they work together with AISE and AISI staff.
Such forms of conduct must be authorized by the President of the Council of Ministers or the Delegated Authority, and are subject to a number of conditions envisaged by the law to balance intelligence requirements with the safeguard of citizens’ fundamental rights.
AISE and AISI agents are not liable to punishment provided that their conduct:
- is absolutely necessary and in proportion to the achievement of the operation objectives, which could not be obtained otherwise
- results from weighing the public and private interests involved
- is the least prejudicial to the interests of the injured party
- does not involve crimes endangering or injuring the life, physical integrity, personal dignity, personal freedom, moral freedom, health or safety of one or more persons, or crimes against the administration of justice, or crimes against constitutional bodies, regional assemblies, the citizens' political rights, as well as other crimes explicitly provided for by the law
- is not carried out on the premises of political parties represented in Parliament or in a regional assembly or council, on the premises of trades-union organizations, or in relation to officially registered professional journalists
Functional guarantees may be invoked before Judicial authorities during preliminary investigations, at the preliminary hearing, in trial or when an AISE or AISI agent is caught in the act. The law prescribes that Judicial authorities ask the President of the Council of Ministers about the existence of the authorization. If an agent is caught in the act, such request is submitted to the Director General of the DIS.
The President of the Council of Ministers may either confirm the existence of the authorization or inform Judicial authorities that the form of conduct deemed by the law to constitute a criminal offence had not been authorized or exceeded the limits of the authorization.
The COPASIR Parliamentary Committee is kept informed about the operations involving functional guarantees.