São Tomé and Príncipe
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Legal Resources for São Tomé and Príncipe
E-Learning Resources |
Background
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago.
The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.
São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.
The Legal system
São Tomé and Príncipe has a civil law system, rooted in Portuguese legal traditions. The country's legal framework is based on the 1975 Constitution, last amended in 2003, which establishes a multi-party democratic system with three branches of government:
- Executive: Led by the President and the Prime Minister.
- Legislative: A unicameral National Assembly.
- Judiciary: Includes the Supreme Court of Justice, regional courts, and specialized courts.
The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.
Legal Aid
State-Sponsored Legal Aid in São Tomé and Príncipe
Article 44 of the Constitution of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.
The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.
Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid
Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.
A few examples of NGOs involved in providing legal aid include:
These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.
Number of Lawyers
As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.
The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.
Challenges to Access to Justice
While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:
International Support and Partnerships
To address these issues, various international organisations, including the United Nations Development Programme (UNDP), have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.
In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations. These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.
Source of Defendants Rights
- The Constitution (1975, as amended): Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.
- The Penal Code (adapted from Portuguese law): Outlines criminal offences, penalties, and procedural rights.
- The Civil Procedure Code: Regulates the functioning of the judiciary and the administration of justice.
São Tomé and Príncipe is a party to several international treaties, including:
- The African Charter on Human and Peoples’ Rights
- The International Covenant on Civil and Political Rights (ICCPR)
- The Convention Against Torture (CAT)
Rights of the Accused
The Constitution of São Tomé and Príncipe (art. 36) ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court.
This provision safeguards individuals from arbitrary arrests and detentions.
The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment.
While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.
The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.
The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves.
The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation.
Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process.
While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions.
The Constitution (art. 37) stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced.
The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.
While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed.
Rights of Counsel
Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.
Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.
Means of Protecting and Enforcing Rights
Exclusionary Rule:
- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.
- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.
Nullity of Procedure:
The law provides mechanisms to nullify legal proceedings in specific situations:
Occurs when the court concludes that:
- The crime has not been committed.
- The established facts do not constitute a crime.
- Those prosecuted are exempt from criminal liability.
Occurs when:
- Evidence is insufficient to demonstrate that a crime was committed.
- Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.
- The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.
- Final Dismissal: The case is permanently closed and cannot be reopened.
- Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).
- If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.
- In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.
- If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.
- Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.
Civil Actions:
Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:
- Damages or Injunctions: Plaintiffs may seek compensation or the cessation of human rights violations.
- Appeals to International Bodies: Domestic decisions can be appealed to the European Court of Human Rights (ECHR).
- Ombudsman Assistance: The national ombudsman protects and defends citizens' basic rights and freedoms.
Procedures in Civil Litigation
The Civil Procedure Code outlines two main procedural types:
- Ordinary Procedure
- Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.
- Structure:
- Written phase (demand, notification, and response).
- Preliminary hearing.
- Oral trial.
- Abbreviated Procedure
- Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.
- Structure:
- Written phase (allegations).
- Oral trial.
- Sentence (appealable if the claim exceeds €1,500).
Special Procedures:
Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.
Pre-Trial Procedure
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.
Constitutional Protections:
Police Oversight and Complaints:
The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources.
While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions.
Arrest and Detention Laws:
The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year.
Court Procedures
Under the Criminal Procedure Code of São Tomé and Príncipe, a criminal proceeding follows a similar structure to many other legal systems, comprising four distinct stages : investigation, indictment and plea, main trial, and legal remedy. Below is a detailed breakdown of the procedures based on the Criminal Procedure Code and the practices in São Tomé and Príncipe.
PRE-TRIAL:
Under the Criminal Procedure Code, the pre-trial stage begins with an initial appearance before a judge. This stage allows the judge to review the circumstances of the detention and determine whether it is lawful. The defendant must be informed of the charges against them and their rights, including the right to counsel and to remain silent. The judge must ensure that the defendant understands the charges and their legal rights at the time of the initial court appearance. A hearing is held to decide on the necessity of detention, and the judge has the discretion to order the release of the defendant if the detention is deemed unlawful or unnecessary.
The indictment is a key legal instrument in criminal proceedings. The prosecution is responsible for preparing the indictment, which formally charges the defendant with specific crimes. In São Tomé and Príncipe, once an indictment is filed by the public prosecutor in the Basic Court, a judge is assigned to the case. The Code stipulates that the indictment should detail the specific facts and legal provisions upon which the charges are based. The defendant has the right to receive a copy of the indictment before the trial, ensuring they are informed of the charges and the evidence against them.
Following the filing of the indictment, a preliminary hearing may be held. This hearing serves to review the charges, determine the admissibility of evidence, and address any motions related to the case, such as requests for bail or dismissal. During the hearing, the court will verify whether the defendant understands the charges and allow them to enter a plea (guilty or not guilty). A second hearing may be scheduled, typically within a certain timeframe, to allow further review of the case or motions.
The Criminal Procedure Code also allows for various pre-trial motions. These motions can be filed to challenge the evidence, request the exclusion of certain materials, or question the validity of the charges. The judge will rule on such motions before proceeding to the main trial, ensuring that any procedural errors or violations are addressed.
The discovery process in São Tomé and Príncipe allows the defence to obtain evidence held by the prosecution. Upon the filing of an indictment, the state prosecutor is required to provide the defendant with all evidence that will be presented during the trial. This ensures that the defendant has the opportunity to prepare a defense and contest the evidence presented by the prosecution.
TRIAL:
The main trial in São Tomé and Príncipe is conducted before a judge or a panel of judges.
Article 9 of the Criminal Procedure Code stipulates that if the prosecution has sufficient evidence, it will proceed with filing the indictment. The trial itself is public, and the judge or panel of judges hears both the prosecution's and the defense's arguments. In the absence of a jury system, the judge(s) have full responsibility for the trial's outcome. The judge(s) can ask questions during the trial to clarify facts or direct the proceedings.
The defendant has several important rights during the trial:
- Right to make statements:
The defendant has the right to address all facts and evidence that may incriminate or favor them. - Right to summon witnesses:
The defendant may request that witnesses testify on their behalf, subject to the court's approval. - Right to cross-examine:
The defendant has the right to question witnesses who testify against them and challenge the evidence presented.
The role of defence lawyers in São Tomé and Príncipe is critical. They ensure that the defendant’s rights are upheld during the trial and help present arguments in favor of the defendant.
However, due to limited resources, there is often a challenge in accessing skilled and experienced defense counsel, especially for those who cannot afford private representation. In some cases, NGOs provide pro bono legal aid to help ensure that justice is accessible to all.
According to the Criminal Procedure Code, expert witnesses may be summoned to provide specialised knowledge or clarify evidence. Expert testimony is presented in the form of written reports, and the court may call experts to testify in person. The prosecution or defense can request the assistance of expert witnesses in relevant fields, such as forensic analysis or psychological evaluation.
The conduct of the trial depends on the judge or judges overseeing the case. In criminal cases, there may be a single judge or a panel of judges. A single judge handles less complex cases, while a panel of judges may be used for more serious offenses. The judge is responsible for ensuring a fair trial, ruling on motions, and ultimately delivering a verdict based on the facts presented.
Victims of crimes also have rights during the trial. According to the Criminal Procedure Code, victims can:
- Participate as parties in the trial, including the right to make statements and present evidence.
- Request restitution for harm suffered as a result of the crime.
- Examine witnesses and present their case to the court.
SENTENCING
After the trial concludes, the judge or panel of judges will issue a sentence. The Criminal Procedure Code outlines the guidelines for sentencing, ensuring that the punishment is proportionate to the crime. However, there have been concerns about the quality of judgments, as reported in some reports, with calls for better training for judges and more consistent application of sentencing guidelines.
APPEALS
Both the defence and prosecution have the right to appeal a decision to a higher court. Article 368 of the Criminal Procedure Code allows for an appeal following the announcement of a judgment, enabling the parties to challenge the verdict or the sentence. Appeals can be based on procedural errors, violations of rights, or misapplication of the law.
Appeals can be filed against a pre-trial judge’s decision (such as a ruling on detention) or a ruling concerning punishment. The Court of Appeals reviews these decisions, ensuring that there are no legal or procedural flaws that would undermine the fairness of the trial.
Rights in Prison
São Tomé and Príncipe abolished the death penalty for all crimes in 1990. On January 10, 2017, the country ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, reinforcing its commitment to the abolition of capital punishment. According to Amnesty International São Tomé and Príncipe is classified as abolitionist for all crimes.
In March 2022, efforts to address these issues included the inauguration of a new prison wing constructed with support from the United Nations.
While specific information regarding the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by São Tomé and Príncipe is not readily available, the U.S. Department of State's 2022 Country Report on Human Rights Practices did not highlight torture as a prevalent issue in the country.
There is limited publicly available information detailing the current legal stance on corporal punishment within São Tomé and Príncipe's prison system. Further research or official sources would be required to provide an accurate account of any existing policies or practices.
Medical care within the prison system has been a concern, with reports highlighting a lack of basic medical supplies and accommodations for prisoners with disabilities. In emergencies, prisoners are typically transferred to the national hospital for treatment.
Juveniles
Specific provisions regarding the treatment and detention of juveniles in São Tomé and Príncipe are not extensively documented in the available sources. Ensuring the protection of minors within the justice system remains a critical aspect of upholding human rights standards.
In summary, São Tomé and Príncipe has made significant strides in human rights, notably through the abolition of the death penalty.
However, challenges persist in the prison system, particularly concerning overcrowding, infrastructure, and medical care. Addressing these issues is essential to align with international human rights norms and ensure the well-being of all detainees.
