The judge is a member of the judiciary who performs his/her office independently, deciding only according to the Portuguese Constitution and the law.
Several judges may be involved throughout the course of criminal proceedings:
the examining judge, the trial judge, and the appellate justices of the Appeal Courts and of the Supreme Court of Justice.
The examining judge acts during the investigation, that is, at the inquiry and examination stages.
The inquiry stage is managed by the Public Prosecutor, but some measures which may encroach on citizens’ fundamental rights must be performed or authorised by the examining judge. This is the case with the first judicial interrogation of a suspect who has been detained, the imposition of a restrictive measure, the conducting of expert examinations, searches of residential premises, and phone taps, among others. The examining judge has a mission to ensure that these acts do not breach fundamental rights or that, if they do, the investigation warrants it and they are restricted to what is absolutely necessary.
At the examination stage, the examining judge is tasked with deciding whether or not the decision reached by the Public Prosecution Service at the end of the inquiry stage was appropriate. To this end, he/she will examine the evidence gathered during the inquiry stage, as well as any other evidence he/she considers should be obtained, or evidence submitted at the examination stage which he/she considers relevant. It is then the judge's responsibility to schedule the examination discussion over which he/she presides and in which all the parties to the proceedings take part.
At the end of this debate, the examining judge decides whether or not to confirm the decision of the Public Prosecutor Service at the inquiry stage:
- if the examining judge decides to dismiss the case, the defendant will not go to trial. This is called a non-indictment decision and may be appealed by either the Public Prosecution Service or by the assistant.
- if the judge decides to charge the defendant, the defendant will go to trial. This is called an indictment decision and, as a rule, cannot be appealed.
After receiving the case file, the trial judge schedules the date for the trial and issues a summons or notice to all the people who must participate in the proceedings.
He/she then has two main duties to perform:
- firstly, to preside over the trial. The judge is responsible for case management, ensuring that everything runs in an orderly and disciplined manner, that the evidence is given and the participants in the proceedings have the chance to examine and query it.
- secondly, to decide on the basis of the evidence whether the defendant should be convicted or acquitted and, if convicted, which penalty should be imposed. If there is a claim for compensation, the judge also has to decide on this claim. The judge is responsible for writing the judgment, reading it aloud in the courtroom on the scheduled date and explaining it to the participants in the proceedings, particularly to the defendant and to the victim, if he/she is present.
In cases involving the most serious crimes, the court comprises three judges. In these cases, one of the judges is designated as president and his/her duty is to preside over the trial, but the other two judges may also intervene. The decision is reached by a majority of the three judges.
One of the responsibilities of the appeal court justices is to weigh up and rule on appeals lodged with the Courts of Appeal and the Supreme Court of Justice.
The judge has a degree in law and has completed a special post-graduate course for judges at the Judicial Studies Centre (Centro de Estudos Judiciários).
If you think that a judge has not respected your rights, you should report this to the Supreme Council of the Judiciary (Conselho Superior da Magistratura).