NOTES ON PORTUGUESE LEGAL TERMS
(The status of “arguido”/ defendant)
The status of arguido (defendant) is granted when an inquiry has been opened or an investigation is led regarding a specific person, if there are grounds to suspect that such person has committed a criminal offence and when that person is heard by a judicial authority – Public Prosecutor or Examining Judge – or a criminal police body, or where a coercive or patrimonial guarantee measure must be imposed or the suspect is detained. When acquiring the status of arguido, the person benefits from a set of procedural rights and duties covered by law.
Under this status, the person is no longer a simple participant in proceedings, differently from the suspect who does not have a specific status, but is indeed a subject in court, and has the right to: be assisted by a defence counsel; attend all procedural acts that directly affect him; be heard in court or before the examining judge whenever they render a decision that may personally affect him; be informed on charges against him prior to making statements before any authority; take part in the inquiry (and in the examination – instrução - before the Examining Court) by providing evidence and requesting any measures found necessary; request the opening of the examination stage (instrução) where the Public Prosecutor has formally charged him, in order to challenge this decision and to prevent it from being submitted to a criminal court.
[Portuguese Code of Criminal Procedure (CCP), Articles 57-67]
Where a sentence is merged, i.e. computed together, with the sentences of other court cases, the maximum sentence that may be imposed as an aggregate penalty will have an upper limit comprehending the addition of all partly sentences imposed in all sets of proceedings. However, the upper limit of the merged sentence (aggregate sentence) may not exceed 25 years, which corresponds to the highest custodial sentence concretely applicable in Portugal, or 900 days in the case of a merged fine. The lower limit corresponds to the highest of the sentences concretely applied to the several criminal offences.
The computation of sentences (cúmulo) is the result of a specific trial where the court examines the relevant previous sentences to be merged, and considers the facts perpetrated by the defendant and his personality altogether in order to render a new sentence punishing the criminal activity of the defendant under trial as a whole. The defendant must be present during the trial hearing and can present his own arguments.
The cúmulo is done by the court where the defendant had his latest conviction, provided that the facts underlying those proceedings have been perpetrated prior to the date of the sentences to be merged.
The sentences to be computed or merged must be final and res judicatae. Time already served in prison in the scope of the merged sentences is deducted from the aggregate penalty to be imposed as cúmulo.
[Portuguese Criminal Code (CC), Articles 30, 77, 78]
(The inquiry or criminal investigation)
The “inquiry” (inquérito), led by a Public Prosecutor,is the stage that opens criminal proceedings with the purpose of investigating the possible perpetration of a crime, detecting its perpetrators and their responsibility and collecting evidence in view of a decision on whether there will be a formal charge or prosecution.
Unlike in the previous system of criminal procedure where the inquiry was covered by legal secrecy, since 15 September 2007 - when new rules were enforced by Law 48/2007 which amended the Portuguese Code of Criminal Procedure -, the investigation is now public as a rule, except where the law specifically provides for the possibility of secrecy in order to safeguard: (i) the investigation aims; (ii) the rights of subjects or parties in proceedings (CCP, Article 86, paragraphs 2 and 3).
(The examining stage)
The arguido (or the assistente, i.e. the party assisting the public prosecutor) may request the opening of the examining stage (instrução) under the supervision of an Examining Judge (Juíz de Instrução), who may or may not confirm the well-grounded of the Public Prosecutor decision on whether to prosecute or to dismiss the case (CCP, Article 286, paragraph 1).
The application is not subject to any particular formalities, but should briefly indicate (CCP, Article 287, paragraph 2):
- the factual and legal reasons for disagreement as to the prosecution; and, if that is the case,
- which investigative acts the applicant believes should be carried out, what evidence should be taken into consideration and what facts are expected to be proven thereby.
The application may only be rejected as being extemporaneous, by lack of jurisdiction of the judge or by legal inadmissibility of the examining stage (CCP, Article 287, paragraph 3).
This stage is concluded by a preliminary hearing before the Examining Judge, which is attended by the Public Prosecutor, the defendant, the defence counsel, the party assisting the public prosecutor and his/her lawyer (CCP, Article 289).
After the preliminary hearing, the Judge decides on whether or not to submit the case to a criminal court for trial (CCP, Article 308).