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Portugal Criminal Law Procedure
The Portuguese criminal justice system was organized on
a
national basis. The Ministry of Justice had control over
the
court system, the office of the attorney general, the
Judicial
Police, and prisons. The office of the attorney general
had a
hierarchy parallel to that of the judiciary. Its
representatives
prosecuted cases in each of Portugal's judicial districts
and
their subdivisions. An assistant deputy attorney general
prosecuted cases before the municipal court at the local
level or
municipality. At the district level, above the
municipality, the
deputy attorney general represented the state before the
district
court, which housed a panel of one to three judges to
determine
guilt or innocence and decide the sentence.
Portugal had four judicial regions, each with an
appeals
court having appellate jurisdiction over cases tried in
the
district or lower courts in its area. The districts were
Lisbon,
with 66 courts; Porto, with 110 courts; Coimbra, with 80
courts;
and Évora, with 60 courts. Appeals were allowed only on
the basis
of judicial error in the original proceedings. Cases tried
in a
district court were automatically reviewed after
sentencing by
the appeals court of the region. The Ministry of Justice
reviewed
all cases and could intervene to initiate a formal appeal.
Because the appeals process was often lengthy, bail was
frequently allowed the accused during the proceeding,
except in
cases involving homicide, serious assault, or grand
larceny, or
when it was likely that the accused would flee.
Persons apprehended while committing a crime were
typically
held in preventive detention and were usually not
considered
eligible for conditional liberty. Persons not caught in
the
commission of a crime were usually given conditional
liberty on
submission of a bail bond or article of value. An
individual
taken into custody could not be held for more than
forty-eight
hours without being brought before a prosecuting
magistrate who
reviewed the case and determined whether the accused
person
should be held in preventive detention or released on
bail.
Preventive detention was limited to a maximum of four
months for
each crime. Because of the cumbersome and backlogged
judicial
system and vacant judgeships, however, detention beyond
four
months was not unusual for major crimes, such as murder or
armed
robbery. For this reason, judges were required to give
priority
to cases of those in preventive detention.
Persons unable to afford an attorney had one appointed
by the
court. Detainees were given access to their lawyers while
awaiting trial. The indictments were made available to the
accused and their attorneys, and charges could be answered
in
briefs by the defense attorneys. Presiding judges could
dismiss a
case on the basis of a defense attorney's brief or
continue the
trial at their own discretion.
A clear procedural distinction existed between arrest
and
trial. A panel of three judges (which did not include the
prosecuting judge) presided over cases that went to trial.
A
ministerial delegate assisted the judges in reviewing the
evidence. At the request of the accused, a jury could be
used in
trials for major crimes. Provision for a jury system was a
particularly significant innovation of the constitution.
The constitution reaffirmed the basic guarantee of a
fair
trial and stipulated that trials were to be public except
when
they could offend the dignity of the victim, as in cases
involving sexual abuse of children. To avoid the
malpractices of
the authoritarian Salazar-Caetano regime, when agents of
the
secret police exercised the power of magistrates, strict
judicial
supervision over indictments and trial procedure was
provided. An
ombudsman, elected to serve a four-year term by the
Assembly of
the Republic, was Portugal's chief civil and human rights
officer. The ombudsman received about 3,500 complaints
annually;
the majority involved alleged maladministration by the
bureaucracy.
Before the Salazar-Caetano era ended in 1974, persons
accused
of offenses defined as crimes against the state could be
legally
detained for periods ranging from six months to three
years
without being charged. Suspects convicted of crimes
against the
state could be held in prison for renewable three-year
terms,
which could result in life imprisonment. Those considered
less
dangerous were exiled to an overseas territory or were
obliged to
post large bonds as guarantees of acceptable conduct in
the
future. Acts and conspiracies of military or civilians
against
the government were severely prosecuted. Advocating or
acting in
favor of African liberation movements was considered to be
a
political offense. Conspiring to participate in
antigovernment
demonstrations or strikes, inciting others to strike, or
taking
part in violence associated with a strike were punishable
under
similar laws. Membership in the Portuguese Communist Party
(Partido Comunista Português--PCP) or in any group
dedicated to
the violent overthrow of the government was prohibited.
After the revolution, specific laws against the PCP,
which
had been harshly suppressed and forced to operate
clandestinely
from 1926 to 1974, were voided, allowing the party to
participate
openly in Portugal's political life. In spite of the ban
on
"fascist" organizations, some small extreme right-wing
groups
functioned without interference. The only other remaining
restriction on political activity barred simultaneous
membership
in more than one party.
Although Portugal held no political prisoners, some of
the
radical leftist opponents of the regime have claimed that
prosecutions for participating in terrorist organizations
were
politically motivated. Among these was the 1987
prosecution of
sixty-four persons sentenced to prison because they were
members
of FP-25; the most notable of those sentenced was
Carvalho, one
of the leaders of the Revolution of 1974
(see Terrorist Groups
, this ch.). According to the United States Department of
State's
human rights reports, there appeared to be substantial
evidence
for the criminal charges brought in these cases, and
Carvalho's
conviction was upheld after appeal to the Portuguese
Supreme
Court of Justice.
Data as of January 1993
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