Portugal
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Background
Portugal is a democratic republic located in Southern Europe, with a legal and political system shaped by its transition from an authoritarian regime to democracy in the mid-20th century. After nearly five decades under the Estado Novo dictatorship (1933–1974), Portugal underwent a peaceful revolution, known as the Carnation Revolution, which led to the establishment of a democratic government in 1976. Since then, the country has been a member of the European Union (EU), the United Nations (UN), and other international organisations, strengthening its legal framework in alignment with European and global human rights standards. The legal system of Portugal has continued to evolve, incorporating modern legal principles, particularly in areas such as human rights, criminal justice, and legal aid.
The Legal system
Portugal follows a civil law system, which is based on codified statutes rather than judicial precedents. The country’s legal framework is primarily derived from the Portuguese Constitution of 1976, the Civil Code, the Penal Code, and other legislative acts enacted by the parliament.
Judicial decisions do not create binding precedents, but rulings from higher courts, such as the Constitutional Court and the Supreme Court of Justice, can guide lower courts. Portugal’s legal system also integrates EU law, which has direct applicability in several areas, particularly in human rights and procedural fairness.
Legal Aid
Portugal has a state-sponsored legal aid program, known as Apoio Judiciário, which ensures that individuals with insufficient financial resources can access legal representation. This system is overseen by the Institute of Social Security (Instituto da Segurança Social) and the Bar Association (Ordem dos Advogados).
Legal aid covers both criminal and civil cases and can include full or partial coverage of legal fees, exemption from court costs, and appointment of a public defender.
If individuals do not qualify for state-sponsored legal aid, some NGOs and professional legal associations offer pro bono services, such as the Portuguese Pro Bono Network and Cáritas Portugal. The exact number of lawyers in Portugal varies, but the Ordem dos Advogados estimates that there are over 30,000 registered lawyers, with a significant portion specializing in criminal and civil law.
Source of Defendants Rights
Defendants' rights in Portugal are protected through both national and international legal sources.
Nationally, the Portuguese Constitution guarantees fundamental rights, including the right to a fair trial, legal representation, and protection against unlawful detention. The Portuguese Code of Criminal Procedure further details these rights, ensuring due process, the presumption of innocence, and access to legal counsel from the moment of detention. The Public Defender’s Office (Defensoria Pública) plays a crucial role in ensuring that defendants, particularly those who cannot afford legal representation, have access to legal assistance.
Internationally, Portugal adheres to multiple treaties and conventions that protect defendants’ rights. As a member of the European Union, Portugal is bound by the EU Charter of Fundamental Rights, which guarantees rights such as legal aid, fair trial standards, and protection against inhumane treatment. Portugal is also a signatory to the European Convention on Human Rights (ECHR), overseen by the European Court of Human Rights, ensuring compliance with fair trial principles under Article 6. Additionally, Portugal upholds United Nations (UN) treaties, including the International Covenant on Civil and Political Rights (ICCPR), which establishes legal standards for due process, and the Convention against Torture (CAT), which prohibits inhumane treatment of detainees. These combined national and international sources create a strong framework for safeguarding defendants’ rights in Portugal.
Rights of the Accused
The Portuguese Constitution (Article 32(2,3)) and the Code of Criminal Procedure protect individuals from arbitrary arrests, searches, and seizures. Law enforcement must obtain judicial authorization before conducting searches or seizures, except in cases of flagrante delicto (when a crime is actively being committed).
Portugal guarantees that no individual can be detained without legal justification. The Constitution (Article 27(2,3)) ensures that detention must follow strict legal procedures, and detainees must be presented before a judge within 48 hours to determine the legality of their detention.
Portugal strictly prohibits torture and inhumane treatment under Article 25 of the Constitution.
The country is a signatory to the UN Convention Against Torture and the European Convention on Human Rights (ECHR), reinforcing this protection.
Detainees have the right to medical assistance under Article 64 of the Constitution and Portuguese prison laws. Medical evaluations must be conducted upon detention, and prisoners are entitled to continued healthcare.
The Code of Criminal Procedure (Article 141) and Constitution (Article 27 (4)) requires that arrested individuals be promptly informed of the charges against them and the reasons for their detention in a language they understand.
Under Article 32(2) of the Constitution, all individuals are presumed innocent until proven guilty. This principle is upheld in both domestic laws and international human rights treaties Portugal adheres to.
No individual can be forced to testify against themselves under Article 32(8) of the Constitution. This right extends to refusing to answer police questions without legal representation.
The Constitution (Article 20,32) and the Code of Criminal Procedure (Article 61) guarantee the right to legal representation from the moment of arrest. The state provides free legal aid (Apoio Judiciário) to those who cannot afford a lawyer.
Defendants have the right to present evidence and call witnesses in their defense. Article 32(5) of the Constitution ensures full participation in legal proceedings.
The Portuguese legal system adheres to due process principles, ensuring fair and transparent proceedings under Article 32 of the Constitution.
All individuals are equal before the law, as stated in Article 13 of the Constitution. Discrimination in legal proceedings is prohibited.
Portugal allows for pre-trial release under the Code of Criminal Procedure (Article 204), provided the accused does not pose a flight risk or a threat to public safety.
The Portuguese Constitution (Article 29) prohibits retroactive application of criminal laws, meaning individuals cannot be prosecuted for actions that were not crimes at the time they were committed.
The ne bis in idem principle, protected under Portuguese law, ensures that no individual can be tried or punished twice for the same offense (Article 25).
- Generally: The Constitution (Article 32) guarantees a fair trial, including legal representation, an impartial tribunal, and the right to present evidence.
- Right to a Trial by Jury:Jury trials exist in Portugal but are limited to certain serious criminal offenses, such as those with severe penalties.
- Right to a Speedy Trial: The law mandates that criminal cases be resolved within reasonable timeframes, but delays can still occur due to court backlogs.
- Right to an Impartial Judge: Judges in Portugal are independent and appointed based on merit to ensure impartiality.
Non-Portuguese-speaking defendants have the right to a court-appointed interpreter under the Code of Criminal Procedure and EU directives (Article 92).
Individuals can challenge unlawful detention through a habeas corpus petition under Article 31 of the Constitution, requiring immediate judicial review.
Portugal abolished the death penalty in 1867 for civil cases and in 1976 for all cases. It is prohibited under Article 24 of the Constitution.
Defendants have the right to appeal convictions and sentences. The appeal process can be pursued in the Court of Appeal (Tribunal da Relação) and, in some cases, the Supreme Court of Justice (Supremo Tribunal de Justiça).
Rights of Counsel
In Portugal, all individuals have the right to legal representation, and lawyers (advogados) registered with the Portuguese Bar Association (Ordem dos Advogados) have the exclusive right to provide legal counsel in criminal and civil cases. The state also provides public defenders for those who cannot afford a private lawyer.
Defense lawyers have the right to meet with their clients at any stage of the legal proceedings, including during police custody and pre-trial detention. Under the Code of Criminal Procedure, authorities cannot deny or delay access to legal counsel.
Lawyers are entitled to access all case-related documents and evidence to ensure an effective defense. The prosecution must share relevant case files with the defense, as mandated by the Portuguese Code of Criminal Procedure.
Attorney-client privilege is strictly protected under Portuguese law. Conversations and correspondence between lawyers and their clients are confidential, and authorities cannot monitor or interfere with legal consultations, except in cases of suspected criminal abuse of privilege.
Means of Protecting and Enforcing Rights
Portugal follows the principle of illegality of evidence (prova ilícita), meaning that evidence obtained through unlawful means, such as torture, coercion, or illegal searches, is inadmissible in court.
Article 32 of the Portuguese Constitution and the Code of Criminal Procedure (Article 126) explicitly prohibit the use of illegally obtained evidence in legal proceedings.
Under the Portuguese Code of Criminal Procedure, procedural violations can lead to nullity (nulidade), which means that any legal action taken in violation of fundamental procedural rules may be declared invalid. This can include unlawful arrests, failure to inform defendants of their rights, or procedural errors affecting due process. If a court determines that nullity has occurred, it may order a retrial or dismiss the affected charges.
Portuguese law allows defense lawyers to file various motions (incidentes processuais) to protect the rights of their clients. These can include motions to suppress evidence, motions to dismiss charges, or requests for bail. Motions must be submitted to the competent judicial authority, and failure to rule on them within a reasonable time may be challenged through appeals.
The Portuguese legal system includes provisions for contempt of court (desacato), which can apply to anyone—including defendants, witnesses, or attorneys—who disrupts proceedings, disrespects the court, or refuses to comply with judicial orders. Contempt can result in fines or imprisonment, depending on the severity of the offense.
Individuals whose rights have been violated by law enforcement or judicial authorities can seek civil remedies through lawsuits for damages (responsabilidade civil).
Victims of wrongful detention, police misconduct, or judicial errors may file civil claims against the state under Article 22 of the Constitution, which guarantees compensation for unlawful acts committed by public authorities.
Pre-Trial Procedure
POLICE PROCEDURES
Complaint/Information
A criminal investigation in Portugal typically begins with a criminal complaint (denúncia) filed by a victim, witness, or law enforcement. Complaints can be submitted to the Judiciary Police (Polícia Judiciária), the Public Security Police (Polícia de Segurança Pública – PSP), or the National Republican Guard (Guarda Nacional Republicana – GNR). Certain crimes, especially serious offenses, may also be investigated upon the initiative of the Public Prosecutor’s Office (Ministério Público), which oversees all criminal prosecutions.
Arrest, Search and Seizure Laws:
STOPS & FRISKS
Portuguese law allows police officers to conduct stops and frisks (revista pessoal) when there is a reasonable suspicion that an individual is carrying weapons, drugs, or other illegal items. However, these searches must be limited in scope and proportionate to the situation.
ARRESTS
Arrests in Portugal must comply with strict legal requirements. Under Article 27 of the Portuguese Constitution, no one can be detained without legal justification. A warrant issued by a judge is typically required, except in flagrante delicto (when a crime is being committed or immediately after). Suspects must be brought before a judge within 48 hours to determine the legality of their detention.
SEARCHES
Searches of private homes and businesses require a judicial warrant, except in cases of emergency (e.g., hot pursuit of a suspect). Body searches and vehicle searches may be conducted without a warrant if there is probable cause to believe that contraband or evidence of a crime is present.
PRE-TRIAL DETENTION
Pre-trial detention (prisão preventiva) is only permitted under serious circumstances, such as when there is a flight risk, risk of tampering with evidence, or danger to public safety. A judge must approve pre-trial detention, and it is subject to periodic judicial review. Alternative measures, such as house arrest or bail, may be granted depending on the case.
ENFORCING THE RULES (Exclusionary Rule, Nullity, and Other Protections Against Illegal Police Procedures)
Illegally obtained evidence, including evidence gathered through unlawful searches, coerced confessions, or unauthorized surveillance, is inadmissible in court under Article 32 of the Constitution and the Code of Criminal Procedure. Defendants can challenge unlawful procedures through motions for nullity, which may result in the exclusion of evidence or even case dismissal.
Lineups and Other Identification Procedures
LINEUPS (reconhecimento pessoal)
Portuguese law allows police to conduct lineups where a witness is asked to identify a suspect among a group of individuals. The suspect’s lawyer must be present during the process to ensure fairness.
OTHER IDENTIFICATION PROCEDURES
Other methods, such as photo arrays, surveillance footage analysis, and forensic identification, are used to confirm a suspect’s identity. These procedures must follow strict guidelines to prevent suggestiveness or bias.
Interrogation:
BEFORE FORMAL CHARGE IN COURT
Before a suspect is formally charged, police may conduct interrogations, but suspects must be informed of their rights, including the right to remain silent and the right to legal counsel. Any statement made without these protections is inadmissible in court.
AFTER DEFENDANT IS FORMALLY CHARGED
Once formally charged, interrogations must follow strict legal procedures. Defendants must have a lawyer present, and questioning must be conducted in an official judicial setting if it involves serious charges.
ENFORCING THE RULES (PROCEDURES TO PROTECT AGAINST ILLEGAL INTERROGATION)
Portugal strictly prohibits coerced confessions, torture, and prolonged interrogation. Any violation of these protections can lead to evidence being excluded, disciplinary actions against officers, and even criminal prosecution of law enforcement officials. The Public Prosecutor’s Office and the judiciary oversee police conduct to ensure compliance with these rules.
Court Procedures
| PRE-TRIAL |
After an arrest, a suspect must be brought before a judge within 48 hours for an initial hearing (primeiro interrogatório judicial). During this hearing, the judge informs the suspect of the charges, ensures they have legal representation, and determines whether they will be released, placed under bail, or held in pre-trial detention. Portugal does not use grand juries. Instead, the Public Prosecutor's Office (Ministério Público) files a formal accusation (acusação) if there is sufficient evidence to proceed. This document outlines the charges, the evidence, and the legal basis for prosecution. For serious crimes, the defendant can request a preliminary hearing (instrução), where a judge reviews the evidence to decide if the case should go to trial. If the judge finds insufficient evidence, the case may be dismissed. Defense lawyers can file motions to suppress evidence, request bail, or challenge procedural errors. Common motions include those for nullity (nulidade), alleging violations of procedural rights. Portugal follows the principle of full disclosure (acesso ao processo). The prosecution must share all evidence, including exculpatory material, with the defense. Both sides have access to witness lists, forensic reports, and investigative documents. |
| TRIAL |
Portugal follows an adversarial system with elements of inquisitorial justice. Trials are conducted by professional judges, though jury trials are allowed for serious crimes (e.g., homicide). The defendant has the right to remain silent, present evidence, and challenge the prosecution’s case. They are presumed innocent until proven guilty beyond a reasonable doubt. Both the prosecution and defense lawyers present their cases, cross-examine witnesses, and argue before the judge(s). Defendants can hire private lawyers or receive state-appointed legal aid (apoio judiciário). Expert witnesses (peritos) may testify in cases involving forensic evidence, medical reports, or technical matters. The judge may also appoint court experts to provide independent opinions. Portuguese judges are career professionals trained at the Judicial Studies Center (Centro de Estudos Judiciários). In some cases, panels of three judges decide complex matters. Victims (assistentes) have rights in criminal proceedings, including legal representation, the ability to submit evidence, and challenge procedural decisions. They may also seek compensation through civil claims attached to the criminal case. |
| SENTENCING |
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| APPEALS |
Defendants have the right to legal representation throughout the appeals process. If they cannot afford a lawyer, state legal aid is available. If a defendant can prove that their lawyer was ineffective and it impacted the trial’s outcome, they may request a retrial or appeal the conviction. Appeals can be based on procedural errors, misapplication of the law, wrongful conviction, or excessive sentencing. Appeals are first heard by the Court of Appeal (Tribunal da Relação) and, in exceptional cases, by the Supreme Court of Justice (Supremo Tribunal de Justiça). Defendants can file a habeas corpus petition if they believe their detention is illegal. Additionally, they may appeal to the Constitutional Court (Tribunal Constitucional) if they argue that their constitutional rights were violated. |
Rights in Prison
Portuguese prisons must comply with European human rights standards.
Overcrowding and poor conditions are ongoing concerns, but detainees are entitled to basic hygiene, exercise, and adequate food.
Undocumented migrants and asylum seekers can be detained in immigration detention centers, but they have the right to legal representation, interpretation services, and judicial review.
Prisoners have access to medical care, including treatment for chronic illnesses and emergencies. Portugal’s public healthcare system covers inmates.
Mentally ill prisoners have the right to psychiatric treatment, and some may be transferred to specialized mental health facilities instead of serving time in regular prisons.
- Women:
Female prisoners are housed in separate facilities with special provisions for pregnant inmates and mothers with young children.
- LGBTQ+ Prisoners:
LGBTQ+ inmates are protected from discrimination and violence, though reports indicate that social stigma remains an issue in prisons.
- Mentally Ill Prisoners:
Psychiatric care is available, but mental health resources in prisons are often inadequate, leading to concerns about improper treatment and care.
- Juveniles:
Juveniles are detained separately from adults and placed in educational centers rather than prisons. The focus is on rehabilitation rather than punishment.
