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.

National Sources of Defendant’s rights:
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.

International Sources of defendant’s rights:
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

Right Against Unlawful Arrests, Searches and Seizures:
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).

Right Against Unlawful Detention:
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.

Right Not to be Tortured or Ill-Treated:
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.

Right to Medical Care:
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.

Right to be Informed of Charges:
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.

Right to Presumption of Innocence:
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.

Right Against Self-Incrimination:
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.

Right to Counsel and Effective Assistance:
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.

Right to Present a Defense
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.

Right to Due Process:
The Portuguese legal system adheres to due process principles, ensuring fair and transparent proceedings under Article 32 of the Constitution.

Right to Equal Protection of the Laws:
All individuals are equal before the law, as stated in Article 13 of the Constitution. Discrimination in legal proceedings is prohibited.

Right to Bail:
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.

Right Against Ex Post Facto Prosecution:
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.

Right Against Double Jeopardy:
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).

Right to a Fair Trial:

• 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.

Right to Language Interpretation:
Non-Portuguese-speaking defendants have the right to a court-appointed interpreter under the Code of Criminal Procedure and EU directives (Article 92).

Right to Habeas Corpus:
Individuals can challenge unlawful detention through a habeas corpus petition under Article 31 of the Constitution, requiring immediate judicial review.

Capital Punishment:
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.

Right to Appeal:
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

Means of Protecting and Enforcing Rights

Exclusionary Rule:

Nullity of Procedure:

Civil Actions:

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws:

Interrogation:

Court Procedures

Pre-Trial:

Oral Trial:

Sentencing:

Appeals:

Rights in Prison

Right to Humane Conditions of Confinement:

Right to Medical Care in Prison:

Right to Mental Health Care:

Restriction of rights:

Rights of Special Populations:

• Women:
• Juveniles:

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