Briefing on the Portuguese criminal justice process

October 01 2007

Portuguese criminal process

Following the naming of Kate and Gerry McCann as formal suspects by Portuguese police, Fair Trials Abroad has prepared the following brief on Portuguese criminal justice process.

Crimes in Portugal are divided into ‘public’ and ‘semi-public’. Public crimes include murder, manslaughter, drug trafficking and serious sexual offences. Semi-public offences include wilful damage and theft.

Detention following questioning and preliminary hearing

Following initial police inquiries and questioning, a person may be detained at a police station if suspected of having committed a public crime.

Within 48 hours of such detention, the person must be brought before a magistrate, who will decide whether there is a case to answers and if so, whether bail may be granted or to remand the person in custody.

At this hearing, the person will have the assistance of a court-appointed defence lawyer and an interpreter (if they do not have legal representation of their own).

In our experience, Portuguese courts tend not to grant bail where a public crime is concerned, and are even less likely where the individual is not a Portuguese national. Despite recent EU measures to support freedom of movement, Portuguese courts still tend to view other EU nationals as a potential flight risk.

Investigation and preparation of the case

If bail is not granted, the person (now known as a ‘defendant’), can be held in custody for a maximum 12 months on preliminary charges while the Public Prosecutor undertakes further inquiries and prepares the case against him or her. A Magistrate is appointed to monitor this process, and to review progress every three months.

Formal charges

At the end of this process (which in our experience usually takes longer than a year, sometimes several years in the worst cases), the Public Prosecutor will present formal charges if there is enough evidence. The defendant then has 20 days to review the file and decide whether to contest it.

If the defendant opts to contest the charges, another Magistrate takes control of the case, reviews it to decide whether it should proceed to trial and if so, will set a date.

Access to information

While any trial hearings will be public, all preliminary stages are subject to stringent disclosure restrictions.

FTA experience

The Portuguese criminal justice system provides for legal representation and interpretation assistance from the point of being declared a suspect. These are extremely important safeguards of an individual’s fair trial rights. Where legal representation is good, FTA is confident that a defendant can expect fair treatment.

However, it is of continuing concern that many defendants in Portugal experience lengthy delays in their case coming to trial. In the worst cases, this has seen defendants spend up to 2 years on remand while the case against them is prepared. Moreover, the tendency to deny bail to non-Portuguese residents means other EU nationals can be disproportionately affected by these delays.