WHO’S WHO IN CRIMINAL PROCEEDINGS

INTERPRETER

In all criminal proceedings, whether this involves interviewing the witnesses or written procedures such as notifying the participants to appear for the trial, the language used is Portuguese. When someone who doesn’t speak Portuguese has to participate in the proceedings, the authority responsible for the procedure in question requests the appointment of an interpreter who speaks both Portuguese and the participant's language well. For example, if a witness is Russian and doesn’t speak Portuguese well, an interpreter is appointed whose task is to translate to Portuguese what the witness says in Russian and to Russian what is said to or asked of the witness. An interpreter is also appointed when it is necessary to translate documents from a foreign language. When a person who is deaf or has a hearing impairment has to give evidence, a sign language interpreter is appointed. If the witness is unable to speak, the questions are asked orally and the witness responds in writing. The interpreter plays a key role in ensuring that those involved understand what is said and participate effectively in the proceedings. The appointment of an interpreter doesn’t imply any costs for the participant needing this service.

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EXPERT WITNESS

An expert witness is someone who is asked to assist in the proceedings when specialised technical, scientific or artistic knowledge is necessary to understand the facts or weigh up the evidence. For example, it may be necessary to have a doctor explain the injuries suffered by the victim and how they were inflicted, or for a psychologist or psychiatrist to describe the psychological characteristics of the defendant in order to conduct a personality evaluation, or for a computer engineer to show how a software programme was used in committing the crime. In these cases, the doctor, psychologist or computer engineer use their technical and scientific knowledge to provide a better understanding of what happened. The assistance of expert witnesses is requested by the judge or the Public Prosecution Service, either on their own initiative or because one of the participants in the proceedings has requested it, and they receive a fee. Expert witnesses first conduct any necessary tests and then write a report with their conclusions about what they examined and assessed. If an expert witness is called to appear at the trial, they will testify and answer questions on the tests done and the conclusions drawn from them.

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VICTIM

Anyone can be the victim of a crime. Don't think that it only happens to others. A victim of crime is someone who, as a result of an infringement of criminal law, has been subjected to an attack on his/her life or physical or mental integrity, or to emotional distress or material loss. The close relatives of or persons for whom the victim is directly responsible are also considered victims, as are those who suffered any kind of damage as a result of trying to help the victims or stop the crime against them. Most actions that are considered a crime in Portugal are described in the Criminal Code. Some crimes such as drug trafficking or possession of an illegal weapon are provided for in other legislation. If you were or are a victim of crime, you should report it to the authorities. To find out more about how to report a crime, click here. The victim of a crime has a number of rights and it is important to be aware of them. To know more about the rights of the victims of crime click here. In criminal proceedings, the victim is almost always asked to participate as a witness, as his/her direct knowledge of what happened is very important for arriving at the truth. To find out more about witnesses, click here. However, a victim who wishes to claim compensation against the defendant due to the harm caused by the crime, apart from participating in the proceedings as a witness, may also take part in the proceedings as a civil party. As a civil party, he/she files a claim for compensation and submits evidence of the losses caused. To find out more about the right to compensation, click here. If the victim wishes to take a more active role in the proceedings, he/she can request the status of assistant. The assistant's role is to cooperate with the Public Prosecutor and, upon taking this status, the victim has the chance to participate more actively in the proceedings. For example, the assistant may oppose the provisional suspension of the proceedings or participate actively in the drafting of the orders necessary for accepting the suspension of the proceedings, request measures that he/she considers necessary, request the commencement of the examination stage if he/she does not agree with the decision of the Public Prosecution Service at the end of the inquiry stage, lodge an appeal against any decisions that affect them, among others. In order to be granted the status of assistant, the victim must be represented by a lawyer. In addition, he/she will have to pay a court fee of one Account Unit (with the exception of victims of domestic violence, who are exempted of court fees). If the victim cannot afford to pay legal fees, court fees and other expenses in the proceedings, he/she may apply for legal aid. To find out more about the right to legal aid, click here.

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JUDGE

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).

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DEFENCE LAWYER

The defence lawyer has the duty to defend the defendant's rights in the proceedings. Anyone who is a defendant in criminal proceedings is entitled to a lawyer. If the defendant does not have a lawyer, one will be assigned by the Portuguese Bar Association (Ordem dos Advogados) at the court's request. The defendant is entitled to be accompanied by the defence lawyer at all the procedures in which he/she participates. Moreover, during certain events in the case, the lawyer's presence is mandatory. The defence lawyer, in representation of and protecting the defendant's rights and interests, takes an active role in the proceedings by submitting evidence or requesting that evidence be gathered, questioning the defendant, the witnesses and the victim, and lodging an appeal against decisions with which he/she does not agree. The victim may feel uncomfortable about some of the defence lawyer's questions if he/she thinks that what he/she went through is being challenged. Don’t forget that it is the duty of the defence lawyer to protect the defendant's interests. If any question goes beyond what is acceptable, it is for the judge to interrupt and maintain the order and discipline at the trial.

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DEFENDANT

Defendant is the term given in criminal proceedings to someone who is being investigated on suspicion of having committed a crime. The suspect may be named a defendant by the police, the Public Prosecution Service or the judge. From that moment on, he/she not only has a number of rights but is also bound by a number of duties. These rights and duties apply throughout the proceedings. The defendant is entitled to be present whenever any procedures which concern him are being conducted, or to be heard whenever a decision must be made which will affect him/her, to be informed, before providing a statement, of the facts he/she is suspected of having committed, to refuse to answer questions about those facts, to be represented by a defence lawyer, to submit evidence and to lodge an appeal against unfavourable decisions. The defendant has the following main duties: to appear before the judge, the Public Prosecution Service or the police whenever called upon to do so, to allow him/herself to be examined for evidence, and not to move house or be absent from it for more than 5 days without first providing the new address or the place where he/she can be found. At the trial, the first person to be questioned is the defendant, if he/she is present. The defendant is entitled to refuse to testify. However, any statements made at previous stages of the case may be used and taken into consideration by the judge. If the defendant wishes to testify, the judge starts by asking whether or not what is written in the charge sheet is true, that is, whether or not the defendant confesses to the crime. The defendant then has the chance to give his/her version of what happened and the judge may interrupt to ask some specific questions. Next, the judge asks the public prosecutor and the lawyers, successively, to examine or cross-examine the defendant. Unlike the witnesses, the defendant does not take an oath, that is to say, he/she does not undertake to tell the truth. The defendant may be removed from the courtroom while any witness, particularly the victim is testifying. This is the case when the court believes that the defendant's presence may deter the victim from telling the truth or if he/she is under 16 and there are reasons to believe that testifying in the presence of the defendant may have a serious adverse effect. If the defendant was served a summons to appear in court but fails to attend, the trial will go ahead even in his/her absence and the sentence will be communicated to him/her at a later stage. If it was not possible to serve the summons, because, for example, the defendant’s whereabouts were unknown, this means that the defendant breached his/her duty to inform the court of his/her absence from the address given. In this case, the proceedings will be stayed while the authorities attempt to locate him/her. In these cases, the defendant is classified as wilfully disobedient and his/her name is included in a register of wilfully disobedient persons. This carries a number of negative consequences, including arrest warrants being issued in their names, not being able to obtain documents such as national identity cards or driving licences, and possibly having their property seized, all with the objective of finding them and holding them liable for the acts they are suspected of having committed.

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PUBLIC PROSECUTION SERVICE

Its first responsibility is to receive the reports and complaints about crimes and initiate criminal proceedings. In the case of the more serious public crimes, it is not required that the crime be reported by the victim. Anyone who knows about the crime may report it, and this is sufficient for the Public Prosecutor to start the case even if the victim does not wish this. In the case of other crimes, the victim must file a complaint within 6 months, or the Public Prosecutor cannot open a case file. If the victim is unable to do this, either because he/she is under 16 of age or is unwell, or for any other reason which prevents him/her from doing so, the complaint may be filed by a close relative such as a husband or wife, father or mother, son or daughter, etc. When a crime is reported to or a complaint filed with the police, the police must receive it and then send it to the Public Prosecution Service so that a case may be opened. The Public Prosecutor then takes over responsibility for the investigation. Police officers gather the evidence but the Public Prosecutor has the power to manage the case and may therefore guide the police as to the measures to be taken. In some complex cases, the Public Prosecutor takes an active part in gathering evidence by questioning witnesses and expert witnesses and visiting the crime scene, for example. At the end of the inquiry stage, the Public Prosecutor assesses the evidence gathered and decides whether or not it is sufficient to charge the defendant, that is, to send him/her to trial. To find out more about this decision, click here. In the following phases, that is, at the examination stage, if there is one, and at the trial, the role of the Public Prosecution Service is to argue the charge, that is, to support it. At the trial, the Public Prosecution Service has to prove the facts with which the defendant is charged and, in order to do so, presents the evidence gathered: witnesses, expert witnesses, and documents, among others. Finally, the Public Prosecutor may also lodge an appeal against a decision with which he/she does not agree. If, for example, the judge acquits the defendant but the Public Prosecution Service considers that there was enough evidence to prove that the defendant committed the crime, it may appeal the judge's decision. The Public Prosecution Service has a key role in informing the victims of crime. Firstly, it must provide information about which institutions support the victims and their contact details. It must also provide information about the right to file a complaint and what happens afterwards. It must also inform the victim about the possibility of requesting legal aid if he/she cannot afford to pay the case expenses. It is also the responsibility of the Pubic Prosecution Service to inform the victims of violent crimes and domestic violence victims that they can apply to the Commission for the Protection of Crime Victims (link to 5.4) for compensation. Lastly, in cases where the defendant is particularly dangerous, the Public Prosecution Service must inform victims about decisions or situations that bring about a change in his/her situation, such as parole or escaping from prison. To find out more about the right to information, please click here. The Public Prosecution Service offices are generally located in court buildings. In some of the bigger cities, such as Lisbon, Oporto, Évora and Coimbra, there are also Public Prosecution Service offices responsible for criminal investigation - these are called Criminal Investigation and ActionDepartments (Departamentos de Investigação e Ação Penal, DIAP). All public prosecutors have a degree in law and have completed a specialised professional training course at the Judicial Studies Centre. If you think that a public prosecutor has not respected your rights, you should report it to his/her direct superior. For example, in the case of a deputy public prosecutor, the facts should be reported to the public prosecutor. You may also send your complaint to the Prosecutor General's Office (Procuradoria Geral da República).

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VICTIM SUPPORT OFFICER

The victim support officer* is an APAV worker with the proper qualifications whose job is to identify, accompany and provide support to victims of crime. The victim support officer understands how the victim feels and what they are going through after the crime and it is his/her job to help the victim overcome or, at least, mitigate its impact. To perform these duties, victim support officers have a number of professional and personal skills. In addition to holding academic qualifications in an area closely related to the needs of crime victims, such as psychology, law, social services, among others, they have received specialised training in victim support. Therefore, they have in-depth knowledge about issues such as the consequences of victimisation, victim's reactions, and available support services, etc. At a personal level, these officers are able to listen to the victim, understand their fragility at this time and provide emotional support, accept what the victim is willing to tell and also what he/she is not willing to talk about and respect their decisions, even when they don’t agree with them because they consider that they are not the best for the victim. When necessary, a victim support officer can accompany the victim to court or to the police, or while forensic exams are being conducted. At these times, it is important for the victim to have someone with them who they can trust and who can provide support. *In Portuguese: técnico de apoio à vítima. This term is an APAV registered trademark.

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THE VICTIM’S LAWYER

The victim's lawyer has the duty of helping the victim throughout the legal proceedings: he/she explains how the proceedings progress, provides advice and information about the victim's rights and helps the victim to exercise these rights and protect his/her interests. The role that the victim's lawyer can take in the proceedings depends on the position of the victim. To find out more about the victim's role in the proceedings, click here. If the victim participates in the proceedings only as a witness, the lawyer may accompany him/her whenever the victim's presence is required and, when necessary, inform the victim about his/her rights, but he/she cannot intervene. If the victim is a civil party in the proceedings, he/she must be represented by a lawyer if the claim for compensation is over €5,000. If it is less than this amount, the victim may still have a lawyer but is not obliged to do so. The lawyer's role in this case is to defend the victim's right to compensation. It is the lawyer's responsibility to file the claim and the supporting evidence, particularly of the harm caused to the victim, to participate in the trial by questioning the defendant, the witnesses and the expert witnesses about aspects related to the compensation claim, and to lodge an appeal if he/she does not agree with the decision on the claim. If the victim has the status of assistant, legal representation is compulsory. It is the lawyer, in protection of the victim's interests, who will, for example, submit evidence or request evidence that he/she considers to be important, cross-examine the defendant, the witnesses and the expert witnesses and lodge an appeal against decisions with which he/she does not agree. The lawyer may also agree to the provisional suspension of the proceedings, proposing one or more orders, or, alternatively, not agree to this alternative measure. In summary, the victim need not always be accompanied by a lawyer: as a witness, the victim only has a lawyer if he/she so wishes; as a civil party, he/she is only required to have a lawyer if the value of the claim is over €5,000; as an assistant, the victim is required to have a lawyer. Being the victim of a crime does not mean having an automatic right to have a lawyer appointed and paid for by the State. The victim is only entitled to apply for legal aid if he/she cannot afford a lawyer's fees. To find out more about legal aid, click here. If you think that a lawyer has not respected your rights, you should report this to the Portuguese Bar Association (Ordem dos Advogados).

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COURT OFFICER

The court officer works in the administrative offices of the courts and the Public Prosecution Service offices. These officers are responsible for carrying out the orders of the judge and of the Public Prosecution Service and to conduct, on their own initiative, some administrative actions required for the proceedings to run smoothly. The court officer is responsible, among other duties, for: receiving the documents, applications and other relevant papers, adding them to the case file and informing the judge and the public prosecutor about them. serving notice, usually by letter, on the participants in the proceedings of the decisions made by the judge or the public prosecutor such as the formal charge sheet, the date and place of the trial and the fees, etc. writing the minutes, that is, the description of what happens during the different parts of the proceedings. before any hearing, calling the names of the people who were summoned and notified and informing the judge or the public prosecutor about who is present and who is absent. writing the court attendance confirmation letters requested by the participants in any proceedings to justify their absence from work. during the trial, recording the statements of the participants or the parties to the proceedings. The court officers who work in the Public Prosecution Service offices may also take the statements of the victim, the defendant and the witnesses. If the victim wishes to ask any questions about the practical aspects of the functioning of the court, then he/she can ask the court officer, who must reply using clear and plain language so that the victim can understand the information.

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POLICE

The criminal police forces have a key role in ensuring that criminal proceedings proceed smoothly and this includes working closely with the judges and the Public Prosecutor Service. Firstly, when the police become aware that a crime was committed because a complaint or a report was filed, or a police officer witnessed a crime, the police have a duty to inform the Public Prosecution Service as soon as possible so that it can initiate criminal proceedings. However, if there is a danger that relevant evidence might be lost or destroyed, then before informing the Public Prosecution Service, the police should urgently carry out all the necessary acts to prevent this from happening - for example, immediately apprehending the vehicle in which a murder was committed and which the suspect might want to hide or destroy in order to conceal any evidence. It is for the police to pursue the investigation under the guidance of the Public Prosecution Service. It is the police that will gather evidence by examining the crime scene, questioning the victim, the defendant and the witnesses, obtaining documents, requesting the cooperation of expert witnesses, carrying out searches and placing phone taps, etc. The Public Prosecutor may of course take part in any of these. Indeed, some of these measures actually have to be authorised or even conducted by the Public Prosecutor or by the examining judge. Usually though it is the police that gather the evidence. The Public Prosecution Service may request the case file at any time to assess the progress of the investigation. During the investigation, if the victim wishes to provide further information or find out about the case, he/she should contact the police officer in charge of the investigation. If the victim has been threatened or intimidated, or fears for their safety, they should report this to the police authorities. In general, the investigation is conducted by one of the following three police forces: the Public Safety Police (Polícia de Segurança Pública, PSP), the National Republican Guard (Guarda Nacional Republicana, GNR) and the Criminal Investigation Force (Polícia Judiciária, PJ). Occasionally, other authorities, such as the Immigration and Border Service (Serviço de Estrangeiros e Fronteiras, SEF), the Maritime Police (Polícia Marítima) or officers from the different sections of the Criminal Investigation and Action Departmentsand of the Public Prosecution Service may carry out investigative actions. Which of the police forces is responsible for carrying out the investigation? The Criminal Investigation Force (Polícia Judiciária) is a police force with the only mission of working with the judiciary and the Public Prosecution Service in criminal proceedings.  It is a highly-specialised force and therefore investigates the most serious crimes such as murder, kidnapping, sexual crimes, criminal association and terrorism, among others, or even more complex crimes such as corruption, many white-collar crimes, cybercrimes, etc. The PSP and the GNR have jurisdiction for the investigation of all other crimes, that is, which are not reserved to the Criminal Investigation Force. In the case of burglary and theft from a shop, for instance, as this crime does not come within the jurisdiction of the Criminal Investigation Force, it will be investigated either by the PSP or the GNR depending on which of these has the territorial jurisdiction for the area where it was committed. Besides their criminal investigation powers, the PSP and the GNR are also responsible for maintaining public order, ensuring the safety of persons and property, and overseeing compliance with the road traffic code, among many others. When the investigation is concluded, the police send the case file to the public prosecutor so that he/she can analyse the evidence gathered. If the case proceeds to trial, it is normal for the police officers who conducted the investigation to be called as witnesses. They will be asked about what they did during the investigation, the facts they became aware of and the evidence they gathered. In most cases of course the police officers did not actually see the crime but they do know a great deal about it and this information can help the court to find out the truth. Bear in mind that police officers cannot tell the court what the defendant, the victim or the witnesses said when they were interrogated during the investigation stage. Apart from a few exceptions, only what these people say at the trial can be used as evidence by the court. If you think that a member of any police force has not respected your rights, you should report this to the commandant, commissar/superintendent or coordinator of the department where the situation you are reporting took place. You may also inform the General-Commandant or the National Directors.

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Witness

Anyone who has direct knowledge of facts which are important for the case may be called as a witness, that is to say, they saw the crime take place or know something important for discovering the truth. In a way, witnesses are indirect victims, as witnessing a crime or a violent situation can cause emotional distress. In principle, anyone who is named as a witness must testify, with a few exceptions: the defendant's close relatives, who may refuse to testify, and people covered by professional secrecy, such as journalists, doctors and lawyers. However, they may still be ordered to testify if the crime is a serious one and their testimony is crucial for arriving at the truth. Any witness who is called to appear must attend the court on the date and at the time and place given, follow the instructions given as to how to give their testimony, and answer questions truthfully. Otherwise, they may be charged with the crime of perjury. Witnesses are not required to provide their home address for the purposes of court notices. They may opt to provide their work address or another address to avoid having the other participants in the proceedings know where they live. Witnesses may be accompanied by a lawyer every time they need to give evidence. Their lawyer, when necessary, may inform them of their rights but cannot intervene in the questioning. On the day of the trial, witnesses are not allowed to be in the courtroom before testifying, so they should wait in the witness waiting area and enter the courtroom only to give their evidence. To find out more about missing the trial, click here. The defendant may be removed from the courtroom while a witness, particularly the victim is testifying, if the court considers that the defendant's presence may deter the witness from telling the truth or if he/she is under 16 and there are reasons to believe that testifying in the presence of the defendant may have a serious adverse effect. If a witness is suffering from a serious illness or has to travel abroad and is unable to give evidence in court, then, the examining judge may decide to examine the witness either at the inquiry stage or at the examination stage so that their testimony can be used, if necessary, at the trial. The participants in this examination, besides the examining judge, are the Public Prosecutor, the defendant and the defence lawyer and the lawyer for the assistant and the civil parties. This testimony is recorded and is called a statement for future recall because its purpose is to be used as evidence in the trial. Witnesses are entitled to be reimbursed the expenses incurred by participating in the proceedings. To find out more about the right to reimbursement of expenses, click here. Witness protection measures may be implemented whenever there are risks to the witness's life, physical and psychological integrity, freedom and property of considerably high value because of their contribution to proving the crime. These measures may be extended to include the witness' relatives and other people close to them. To find out more, click, click here Witnesses that are considered particularly vulnerable may benefit from a number of measures to protect them from victimisation or intimidation. To find out more, click here.

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