Criminal Defence in Portugal – Rights of the Accused

Defence in criminal proceedings is subject to its own guarantees and time limits, governed by the Code of Criminal Procedure, and specialised legal assistance is important from the earliest stages of the proceedings, in particular from the moment of being made an arguido (formal suspect). This article forms part of the Litigation area of Araújo & Associados.

When you are made an arguido

Under Article 58 of the Code of Criminal Procedure, being made an arguido is mandatory, among other situations, when: the suspect gives a statement before a judicial authority or criminal police body, in the context of an investigation in which there is well-founded suspicion that a crime has been committed; a coercive measure or a measure securing assets must be applied to that person; the person is arrested; or an offence report (auto de notícia) is drawn up identifying them as the perpetrator of a crime and this is communicated to them. A person is made an arguido by means of an oral or written communication from a judicial authority or criminal police body, stating the procedural rights and duties that the person acquires from that moment on.

Fundamental rights of the accused

Article 61 of the Code of Criminal Procedure, giving effect to Article 32 of the Constitution of the Portuguese Republic, recognises that the arguido has a set of fundamental procedural rights, notably:

• The right to be present at procedural acts that directly concern them;
• The right to be heard by the court or the investigating judge whenever either must take any decision that personally affects them;
• The right to silence, with the exercise of this right not to be interpreted to their detriment or treated as evidence of guilt;
• The right to be assisted by defence counsel, at all procedural acts in which they take part, and to communicate with counsel, even when deprived of liberty;
• The right to submit evidence and to request the measures they consider necessary;
• The right to be informed of their rights by the judicial authority or criminal police body before which they are made an arguido;
• The right to appeal, as provided by law, against decisions that are unfavourable to them.

Coercive measures – principles and types

Where precautionary requirements so justify, the court may apply coercive measures (medidas de coação) to the arguido, governed from Article 191 of the Code of Criminal Procedure onwards. The application of these measures is subject to the principles of subsidiarity, suitability and proportionality, laid down in Articles 193, 202 and 204 of the Code of Criminal Procedure, meaning that the measure applied must be strictly necessary, suited to the precautionary requirements of the specific case, and proportionate to the seriousness of the crime and the foreseeable sanctions. Coercive measures range from the statement of identity and residence (termo de identidade e residência), the mildest, and the only one that can be applied to any arguido regardless of the seriousness of the crime, through bail or the obligation to report periodically, up to pre-trial detention, which is the most severe measure and must be applied only as a last resort, when the other measures prove inadequate or insufficient.

Stages of criminal proceedings

Criminal proceedings typically unfold in the following stages:

• Investigation (inquérito) – the investigative stage led by the Public Prosecutor’s Office, with the assistance of criminal police bodies, aimed at investigating whether a crime has been committed, identifying the perpetrators and their responsibility, and gathering evidence, ending with an indictment or the closing of the case;
• Preliminary judicial stage (instrução) – an optional stage, requested by the arguido or by the assistant to the prosecution (assistente), in which an investigating judge reviews the decision to indict or close the case made at the end of the investigation, and may confirm or overturn it;
• Trial – the stage at which the court assesses the evidence produced and decides on the criminal responsibility of the arguido, which may end in acquittal or conviction.

The importance of legal assistance from the start

Being assisted by a lawyer from these early stages allows the arguido‘s procedural rights – including the right to silence and the right to submit evidence – to be exercised in an informed and strategic way, and not merely reactively, at the trial stage.

Criminal defence and other related matters

A conviction, or other decisions given in criminal proceedings with financial repercussions, may also give rise to enforcement issues, dealt with in general terms in the article Enforcement of judgments in Portugal – how to recover what you are owed.

About Araújo & Associados

Established in 1980, with offices in Porto and Lisbon, Araújo & Associados provides legal advice in criminal proceedings at all stages, in Portuguese, English, French, German and Spanish.

Frequently asked questions about criminal defence