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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 …vora, 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 PortuguÍs--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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Portugal Table of Contents