RIGHT TO PROTECTION

During criminal investigations, interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority.

The number of interviews and medical examinations of victims is kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal investigation.

Victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary.

Victims are entitled not to meet or have any contact with the defendant, particularly in court buildings and police stations.
For that purpose, whenever possible, there should be separate entrance and exit points and waiting rooms for victims and defendants, and for their family members and others close to them.

Unfortunately, many Portuguese courts are not equipped for this and do not have the facilities to fully guarantee this right. However, whenever a victim has solid reasons for avoiding contact with the defendant, he/she should demand, that, as much as possible, the court provides an alternative exit and entrance point, as well as a waiting room not used by the defendant and their family members.

Victims and their family members are entitled to privacy during the proceedings.

The fact of the proceedings being public does not mean that the private details of those involved are also public, particularly when these details do not constitute evidence.

In addition, the media may not, before the judgment, disclose details of the proceedings unless they have a judge’s authorisation to do so. They are also not allowed to transmit images or sound of any proceedings, particularly the trial, unless the judge allows it and none of the participants object.

In proceedings relating to sexual crimes or human trafficking, the public cannot attend any court sessions. In these cases, as well as in cases of crimes against honour or the right to privacy, the media may not publish the victim’s identity.

If any media body fails to respect these rules, the victim should file a criminal contempt complaint (queixa pelo crime de desobediência). The victim should also inform the media regulatory body (Entidade Reguladora da Comunicação).

To find out more about the Entidade Reguladora da Comunicação or to obtain the complaint form, please click here.

Whenever the lives of the victims or of another witness, their physical or psychological integrity, freedom or material assets of considerable value are compromised due to their contribution to the investigation and to providing evidence, they may request protection measures.

The following protection measures are exceptional and may only be used if they are necessary and appropriate for the protection of the parties and for the purposes of the criminal proceedings:

• concealment: based on circumstances that point to a high level of witness intimidation, the court may decide that image concealment measures should be used in any public hearings, with or without voice distortion methods, allowing the witness to remain anonymous.
• teleconference: in the case of serious crimes, and whenever there are strong protection reasons to justify it, teleconferencing may be used, that is, the witness will give their testimony not in the court room but from another public building, preferably in judicial, police or prison premises, and in the presence of a judge. This testimony can also be given using image concealment and voice distortion.
• restriction on revealing the identity of the victim or of another witness: the identity of the victim or of another witness may be concealed at some or all the stages of criminal proceedings. A victim or witness whose identity is not revealed can testify using image concealment (with or without voice distortion) or teleconferencing.
• special protection measures: in the case of serious crimes and whenever there are justifiably strong protection reasons, a victim or other witness may have the benefit of special security measures that may include, for example, the use of official transportation to participate in any proceedings, or police protection or relocation to a new address.
• special protection programme: in some of the most serious crimes, the witness, his/her spouse, ascendants, siblings and other persons close to the victim may benefit in particular circumstances from a special protection programme, if they so wish, during or after the proceedings. The special protection programme includes the use of one or more administrative protection and support measures, namely supplying “new identity” documents to the victim or witness, alteration of features and physical appearance, relocation to a new address, within the country or abroad, for a given period of time or the provision of a living allowance for a set period.

The protection and safety of victims may be safeguarded by imposing one or more restrictive measures against the defendant. A restrictive measure is a constraint on the freedom of the defendant. It may be imposed during the course of the proceedings if there is a risk that the defendant might abscond, a risk to the gathering and preservation of evidence, a danger to public order and/or a risk of continuing criminal activity.

There are a variety of restrictive measures, including:

• declaration of identity and residence - the defendant may neither move from the address indicated in the case file nor be absent from that address for more than 5 days without reporting in advance the contact details of the new address or the place where they may be found;
• the defendant must report from time to time to a specified police station, usually in their area of residence;
• the defendant must suspend his/her profession, functions, activities and rights;
• ban on certain behaviours and orders to behave in a certain way, for example, the defendant must not contact the victim;
• the defendant must stay in his/her named address and not leave, with or without electronic monitoring;
• remand to prison.

If a victim considers that the imposition of a restrictive measure is the best way to guarantee their safety, they should present their arguments and request that it be imposed. The authority to which the arguments should be presented depends on which stage the case is at: to the Public Prosecution Service during the inquiry stage, to the examining judge during the examination stage or to the trial judge during the trial stage.

Whenever the judge considers it necessary, the victim should be heard whenever current restrictive measures are being revoked or substituted.