FAQs (Frequently asked questions)
UAVMD - Support Unit for Migrant and Discrimination Victims
CRIMINAL PROCEEDINGS
LEGAL AID
COMPENSATION
UAVM - Support Unit for Migrant and Discrimination Victims
Frequently Asked Questions (FAQs)
What is UAVMD?
A: It is the Support Unit for Migrant and Discrimination Victims (UAVMD - the Portuguese Acronym). This is a unit created by the Portuguese Association for Victim Support and co-sponsored by the European Fund for the Integration of Third Country Nationals. Acknowledging the specificity of the crimes suffered by immigrants and the discrimination they endure, the purpose of this unit is to deal with the issues they face and to offer the required specialised support to address these groups' specific vulnerabilities. Some of the problems include: sexual exploitation, deception related to work or employment, extortion or withholding of documents, non payment of wages, threats, abuse, discrimination when renting and commercial transactions.
What type of support can I receive from the Support Unit for Migrant and Discrimination Victims?
A: The Support Unit for Migrant Victims can provide you with information about your rights and how to exercise them and psychological, emotional and social support. All this support is confidential and free of charge and takes place in a safe and neutral location. The unit provides support writing claims and other legal documents either within criminal proceedings in which you are not represented by a lawyer or in other situations in which the knowledge of Portuguese and formalities may represent a barrier for the exercising of your rights.
What is required to get support from the Support Unit for Migrant Victims and Victims of Racial and Ethnical Discrimination?
A: The Support Unit for Migrant Victims was created to provide support to immigrants and citizens who are victims of discrimination. Our support is provided regardless of whether you are a legal migrant or are involved in criminal proceedings.
How can I contact the Support Unit for Migrant and Discrimination Victims?
A: You can contact UAVM by telephone, fax, letter, e-mail or personally, however, it is preferable that you come speak with us in person. Although it is advisable to book an appointment in advance, you can visit our premises from 10am to 1pm and from 2pm to 5.30pm, from Monday to Friday.
Address: Rua José Estêvão nº 135-A, 1150-201 Lisboa
Tel: 21 358 79 14
Fax: 21 887 63 51
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Is there any chance that, by contacting UAVMD, my irregular situation in Portugal is denounced to the authorities?
A: It does not matter for the Support Unit for Migrant Victims whether your situation in Portugal is regular or irregular. In no circumstance will we denounce to the authorities someone seeking our support. Besides, being irregular does not detract from your right to report a crime in which you were a victim.
Can I request help with process of naturalisation or in obtaining citizenship?
A: The staff at APAV | UAVM are trained in areas connected to immigration and discrimination, which may involve giving guidance to individuals who are victims of crime and are in the process of requesting a residence permit or obtaining citizenship. To receive support that is specific to those areas, please contact the National Immigrant Support Centre (Centros Nacionais de Apoio aoImigrante – CNAI) located in Lisbon, Porto and Faro; or alternatively, contact the nearest Local Support for the Integration of Immigrants Center (Centros Locais deApoio à Integração de Imigrantes) to your residential zone (consult, www.acm.gov.pt ).
DISCRIMINATION
What is racial or ethnic discrimination?
A: Racial or ethnic discrimination takes place when someone is treated differently from others in the same situation because they are from a different race or ethnic group or have a different colour or nationality.
How can I react to discrimination?
A: Any citizen facing discrimination, whether or not he/she is the victim in that situation, can denounce it to the competent authorities. There are two different types of discrimination issues:
- If the discrimination has taken place in the workplace or committed by the employer, the competent entity is the Authority for Working Conditions (Autoridade para as Condições no Trabalho) (2), also known as ACT [the Portuguese acronym].
- In all the other situations, the competent authorities to deal with the complaint are:
» The Government Member responsible for equalities and ethnic minorities
» The High Commission for Immigration and Intercultural Dialogue (Alto Comissariado para a Imigração e Diálogo Intercultural) (ACIDI) (3)
»The Commission for Equality and Against Racial Discrimination (Comissão para a Igualdade e Contra a Discriminação Racial) (CICDR) (3)
What can happen to someone convicted in a discrimination process?
A: In the case of discrimination as a crime, the defendant may be sentenced to imprisonment ranging from six months to eight years.
Which other accessory penalties can be applied?
A: Confiscation of objects belonging to the offender; Prohibition to exercise activity relying on public title or on authorization or approval by a public authority; Deprivation of the right to an allowance or benefit granted by a public entity or service; Ineligibility to participate in fairs or markets; Deprivation of the right to bid in public auctions or to tender for public works or concessions, the supply of public goods and services and the allocation of licenses or permits; Closure of an establishment requiring a permit from an administrative authority to operate; Suspension of permits and licenses.
I went to a restaurant with my family, they said they don't serve foreigners and that we should go back to our country. What can I do?
A: Not being served in this restaurant means that you were the target of unequal treatment due to your nationality or ethnicity, which prevented you from receiving a service. Because of this you can file a "complaint" to the High Commission for Immigration and Intercultural Dialogue. You can also request the restaurant's complaints book and report your dissatisfaction immediately after the discrimination takes place. If they don't provide you with the complaints book, you can call the police so that you can have access to it.
I booked a viewing to a house for rental. When I arrived, the landlady realised I was not white and told me that the house had already been rented. Back in the street, I asked a friend to call the landlady and who was then told that the house was still free. What can I do against this attitude?
A: By being refused the possibility to rent the house you were the target of unequal treatment due to the colour of your skin. Besides psychological support, which you may feel you need, we can also support your filling a "complaint" to the Commission for Equality and Against Racial Discrimination.
CRIME
An immigrant in a situation of crime has the same rights as any Portuguese citizen. However, there is a lack of knowledge about the rights, support organisations, the culture, the language, etc. which make immigrants particularly vulnerable to situations of crime.
I came to Portugal because my boss promised me "good work conditions". That didn't happen and now I am being exploited (for example, low salary [below 425€], degrading accommodation or extended working hours [more than 8 hours per day or 40 hours per week, without a salary increase]). What can I do?
A: If your boss or someone else brought you or persuaded you to come to Portugal by promising good working conditions and if these conditions were not met, that person may have committed the crime of Person Trafficking. This is a complex crime and requires further knowledge on the specific case. Therefore, it is important to contact the Support Unit for Migrant Victims or any other organisation able to help you.
I handed my documents to my boss and now he/she does not return them. Can he/she do this?
A: When someone does not return documents belonging to another person after this person requests them, then this is a crime of withholding personal documents. If you are a victim of this crime, you can file in a complaint in any police authority and can also request to be accompanied by a police officer when retrieving your documents. This fact may also indicate that others crimes such as people trafficking are being committed. If your documents were withhold as a way to make you work more, receive less money, help bringing in other workers, ensure that you comply with your contract, or any other reason of this sort, this suggests that you may be a victim of people trafficking. Consult the Support Unit for Migrant Victims or any other organisation to get information about your rights. If you are being exploited sexually, by your employer or for surgery, these are good indicators that you are a victim of people trafficking. Contact the Support Unit for Migrant Victims or any other Organisation to obtain information about your rights.
The company where I work has a different set of rules for the Portuguese and for foreigners. Can they do that?
A: No, all workers are equal before the law and the employer cannot favour only some workers just because they were born in Portugal.
My boss says that business is doing badly and that he /she can only afford to pay the Portuguese workers. What can I do?
A: Your boss has several duties towards his/her workers, one being the duty to pay timely for the work delivered and another the prohibition to discriminate. The violation of these duties enables you to make a complaint to the Authority for Working Conditions (Autoridade para as Condições no Trabalho). If you are still not receiving your salary, you can take an action against your boss in the Labour Court (Tribunal de Trabalho). The body responsible for controlling compliance with regulations concerning working conditions, employment, unemployment and social security contributions is the Authority for Working Conditions (2).
I got married in my country of origin and now the two of us are here. But I'm going to get divorced because I don't want to suffer more psychological violence. Do I need to get back to my country and deal with the divorce there?
A: No, as you are in national territory, your divorce can be handled in Portugal. You will need documents from your country of origin, but they can be requested in the consulate or embassy. Depending on the aggressions you suffered, you can report the situation to the police authorities in order to start criminal proceedings.
I came to Portugal to be with my boyfriend, but he controls everything I do. He also told me that if I leave him, he will kill me. What can I do?
A: Regardless of the reason behind your stay in Portugal, no one should have his or her freedom limited, or have the legitimacy to harass anyone else, either in the form of physical threats or psychological aggression. Threats, beatings and psychological abuse are crimes, and, therefore, you can report this incident or case to any police station (Public Security Police, National Guard, Foreigners and Borders Service, and Judicial Police), or also in any court, like to the prosecutors. In addition to the report, it is important that you seek expert support to help you establish a safety plan, and for that, you can contact APAV| UAVMD.
I am a victim of domestic violence and my live-in partner says that if I report it to the police, he or she will go to the Foreigners and Borders Service (SEF) to kick me out of Portugal without my children. Can he or she do that?
The Foreigners and Borders Service (SEF) is responsible for monotoring the documentation of foreign nationals with temporary or permanent reisdency. SEF may expel a foreign national of he or she is found residing in Portugal illegally (without a visa or residence permit) or as a result of a court order (when the foreign national has been convicted of a crime, for example). If your partner eventually reports you to SEF, this body will verify your situation in Portugal, and if you have and present the necessary documents, no process of expulsion will be started.
I don't have money to pay a lawyer. How can I have support?
A: When you cannot afford to pay a lawyer, you can request Social Security (Segurança Social) to appoint one. You can also request exemption from paying the legal costs.
My partner was Portuguese and we broke up because he attacked me. I want to go back to my country but he says that, because I'm not Portuguese, I cannot leave the country with our child. Is this true?
A: No. Regardless of the mother's nationality, when she is a mother and has a partner, it is assumed that she has custody of the child. That is, to leave the country with the child, besides the usual procedures, she will have to provide evidence confirming that she is the mother of the child and that either she is not or was not married to the child's father. This can be proven by the mother's and child's birth certificates. It is also convenient to check what is required to enter the destination country and to be aware that parental responsibility issues should be dealt with as soon as possible. You can report the aggressions you suffered to the police authorities in order to start criminal proceedings.
I handed my documents to my boyfriend/girlfriend and now he/she does not return them to me. Can he/she do that?
A: When someone does not return documents belonging to another person after this person requests them, then this is a crime of withholding personal documents. If you are a victim of this crime, you can file in a complaint in any police authority and can also request to be accompanied by a police officer when retrieving your documents. This fact may also indicate that others crimes such as people trafficking are being committed. If your documents were withhold as a way to make you do jobs you don't want to, to make you do things you don't want to, ensure that you cannot leave your home, or any other reason of this sort, this suggests that you may be a victim of people trafficking. Consult the Support Unit for Migrant Victims or any other organisation to get information about your rights. If you are being exploited sexually, by your employer or for surgery, these are good indicators that you are a victim of people trafficking. Contact the Support Unit for Migrant Victims or any other Organisation to obtain information about your rights.
How can I identify a situation of worker exploitation?
A: The International Labour Organisation - ILO ( Organização Internacional de Trabalho – OIT) has laid out six indicators to assist in identifying labour exploitation. Please note that just one of these indicators is enough to deem a work situation to be exploitative.
» Threatening workers with actual physical danger;
» Restriction of movement or isolation to a workplace or to a limited area;
» “Debt bondage”: when a worker works to pay off a debt or loan. The employer may provide food and accommodation, but the employee is not paid for his or her work. The employer may also provide food and accommodation at a price so high that the worker can never afford to repay the debt;
» Holding back or retaining the salary payment or maintaining its excessive reduction which violates the previously arranged agreement;
» Keeping passports or identification documents so that workers cannot leave or prove their identity or status;
» Threats of reporting the workers’ illegal status to law enforcement authorities;
If you are subjected to one or more of these situations or know of someone who is, please contact APAV | UAVMD or the Authority for Working Conditions (ACT).
How can I identify a situation of people trafficking?
A: There are several indicators of people trafficking, such as:
» The person does not control his/her identification or travel documents;
» The person had specific instructions about what to say when talking to a police officer;
» The person was recruited to perform a job and then was forced to do another one;
» Part of the salary is withheld for paying the travel expenses;
» The person is forced to perform sexual acts;
» The person does not have freedom of movement;
» If the person tries to escape, then he/she or his/her family can suffer retaliations;
» The person has been threatened with deportation or any other legal penalty;
» The person was attacked or deprived of food, water, sleep, medical care or other basic needs;
» The person is not free to contact friends or relatives;
» The person is neither free to socialise with others nor to practice his/her religion.
On their own, one or more of these indicators being present do not mean there is a crime but do provide a strong indication. If you are being exploited by your employer, for surgery or sexually, these are good indicators that you are a victim of people trafficking. Contact the Support Unit for Migrant Victims or any other Organisation to obtain information about your rights.
(1)
National Immigrant Support Centre [Centro Nacional de Apoio ao Imigrante] - CNAI – Lisboa
R. Álvaro Coutinho, 14 1150-025 LISBOA
Telephone: 21 810 61 00
Fax: 21 810 61 17
Opening hours: Monday to Friday, 08.30am to 4.30pm
www.acm.gov.pt
(2)
the Authority for Working Conditions [Autoridade para as Condições no Trabalho] (ACT)
Avenida Casal Ribeiro, 18-A, 1000-092 Lisboa
Telephone: 213 308 700
Fax: 213 308 710
www.act.gov.pt
(3)
High Commission for Immigration and Intercultural Dialogue [Alto Comissariado para a Imigração e Diálogo Intercultural] (ACIDI)
Comissão para a Igualdade e Contra a Discriminação Racial [Commission for Equality and Against Racial Discrimination] (CICDR)
Rua Álvaro Coutinho, nº 14, 1150-025 Lisboa
Telephone: 21 810 61 00
Fax: 21 810 61 17
CRIMINAL PROCEEDINGS
Frequently Asked Questions (FAQs)
What is the investigation?
A: It is the first phase of criminal proceedings, and includes investigating and collecting evidence on whether there was a crime and who committed it. The Public Prosecution Service is responsible for leading this phase and is supported by the police forces.
What is the maximum length of the investigation?
A: As a rule, the Public Prosecution Service closes the investigation by dismissing the case or deciding to prosecute either within six months maximum if the defendant is arrested or under house arrest or within eight months if the defendant is not in these situations.
What is a crime?
A: It is a voluntary behaviour resulting in an infringement of the criminal law –the Portuguese Penal Code or ad hoc legislation – which aims at protecting and safeguarding fundamental rights inherent to living in society, such as life, physical integrity and property.
What does notice of the crime mean?
A: It is a formal communication that a crime was committed. This is necessary for the Public Prosecutor to be able to initiate criminal proceedings and can be obtained from different sources: personal knowledge, the police or through a report.
What is a crime report (formally ' auto de notícia' in Portuguese)?
A: It is a document written by the judges, public prosecutors or police whenever they have witnessed a crime whose reporting is mandatory; it will initiate criminal proceedings.
What are legal authorities?
A: The legal authorities are the judge, the pre-trial judge and the Public Prosecutor.
What is understood by Public Prosecution Service (Ministério Público)?
A: It is the body of magistrates that conducts criminal proceedings: it receives complaints and reports of offences, leads inquiries, produces the accusation, dismisses and lodges appeals.
What is a public crime?
A: It is a crime whose investigation process starts regardless of the victim's willingness. It can be reported by anyone and does not require that the victim presents the complaint himself/herself.
What is a semi-public crime?
A: It is a crime whose process starts only after the crime victim files a complaint.
What is a private crime?
A: It a crime that requires the victim to file a complaint and request his/her role as assistant for criminal proceedings to start.
How to determine whether a crime is public, semi-public or private?
A: We must follow the letter of the law: when it says nothing, the crime is public; when it states that criminal proceedings are dependent on a complaint, then we are dealing with a semi-public crime; when the law states that criminal proceedings depend both on a complaint and a private prosecution, then the crime is private.
What does victim mean?
A: It is a person who has either suffered an attack to his/her physical or mental integrity or material loss as a consequence of an act or an omission of an act violating the criminal law. The concept of victim also includes the direct victim's close family or dependants and those who suffered any sort of damage resulting from assisting the victims or trying to prevent their victimisation.
I am a crime victim. With which status can I go to trial?
A: There are two possible situations: either as a witness summoned by the Public Prosecutor or as assistant if you request that role during proceedings.
What is the offended party?
A: It is the victim in public crimes.
What is the complainant?
A: It is someone who exercises their right to complaint in a semi-public crime or in a private crime.
What does it mean to be an assistant?
A: It is the victim (offended party/complainant) of the crime who collaborates with the Public Prosecutor by participating in the pre-trial phase and in the investigation (for example, by providing evidence) and appealing against decisions that affect him/her.
What is necessary to take the role of assistant?
A: To take the role of assistant, the victim has to pay a justice fee and to have a lawyer. This does not preclude obtaining legal aid.
I was the victim of a crime. What can I do?
A: You can report the crime you suffered in any police station, in the Public Prosecution services or online. Reporting a crime does not need to be done in writing nor does it require a lawyer. For semi-public and private crimes, which require a complaint, this needs to be done within 6 months from the point the complainant becomes aware of the crime and who the authors are. The right to complaint ends after this period.
Does it have to be the victim reporting the crime?
A: This requirement only applies to semi-public and private crimes.
For public crimes, besides the victim, any other person can report the crime. In private crimes, the victim needs not only to present a complaint but also to take the role of assistant, which requires paying a justice fee and having a lawyer. This does not preclude obtaining legal aid.
What is the complaint?
A: It is a statement informing the legal authorities of a crime; it can be mandatory or optional.
When is it mandatory to report the crime?
A: This duty is mandatory for the police authorities (for all public crimes) and for public officials, other state officials and public managers (for public crimes they become aware of in the course of their duties)
And optional?
A: Reporting a crime is not mandatory for other persons not referred to in the previous question and for crimes that public officials, state officials and public managers become aware of outside their duties.
What is the electronic complaint?
A: It is a system designed to make it easier to file a complaint and report a crime to the National Republican Guard (Guarda Nacional Republicana), the Public Security Police (Polícia de Segurança Pública ) and the Foreign Nationals and Borders Service (Serviço de Estrangeiros e Fronteiras). Some public and semi-public crimes can be reported online: simple assault; domestic violence, abuse, human trafficking, procuring (pimping), theft, robbery; harm; fraud; work-related fraud and deception; extortion; damage or undue removal of documents and technical notes; environmental damage; use of other’s identification or travel documents; pollution; facilitation of illegal immigration; pooling of illegal labour and marriage of convenience. The reporting of crimes outside the remit of the Online Complaint System (Sistema Queixa Eletrónica) should be made at the nearest police authority.
I filed a complaint but now I would like to withdraw it. Is it possible?
A: For semi-public crimes and private crimes, it is possible to withdraw the complaint until the sentencing and provided the defendant does not object to it. Withdrawing the complaint prevents filing a complaint for the same crime again.
What is a suspect?
A: It is a person suspected of having committed a crime and who can become a defendant.
What is the defendant?
A: This is the status assigned in criminal proceedings to someone suspected of having committed a crime and which gives him/her a set of procedural rights and duties.
In what circumstance can a police officer ask a citizen for his/her ID (that is, your identification)?
A: The criminal police may ask any person in a public place (that is, any place open to the public or under police surveillance) for their ID whenever there are well-founded suspicions that they committed a crime, have a pending extradition or deportation process, have unlawfully entered or remained in the country or have an arrest warrant against them. If they are not able to produce an ID, the police officer may lead the suspects to the nearest police station and make them stay there for the time strictly necessary for their identification, which cannot exceed six hours in any case. They will always be provided with the possibility to contact someone they trust.
What is an arrest?
A: It is the act of depriving someone of their liberty for a very short period, with one of the following aims: to bring the arrestee before a court within 48 hours; to bring the arrestee before a judge within 48 hours either for questioning or for the application of a restrictive measure; or to bring the arrestee immediately before a judge to attend a procedural act.
What is the habeas corpus?
A: It is an urgent legal action that aims at releasing someone from unlawful restraint.
What are criminal police agencies?
A: These are the police forces who collaborate with the legal authorities in the criminal investigation. They are the Judiciary Police (Polícia Judiciária, PJ), the Public Security Police (Polícia de Segurança Pública, PSP), the National Republican Guard (Guarda Nacional Republicana, GNR) and the Foreign Nationals and Borders Service (Serviço de Estrangeiros e Fronteiras, SEF).
What are restrictive measures?
A: They are measures that restrict the freedom of defendants and aim at making criminal proceedings more effective. They are: declaration of identity and residence; bail; the defendant must periodically report to a named police station; the defendant must suspend his/her professional activity, functions and rights; the defendant must stay in his/her address and preventive detention. These measures, except the first, can only be applied by a judge.
What does the declaration of identity and residence mean (termo de identidade e residência, TIR)?
A: It is the least serious of the restrictive measures and can be applied by the judge, the Public Prosecutor and the police. This measure must be enforced when someone becomes a defendant. It consists in the identification of the defendant, the indication of his/her address and the obligation of reporting to the authorities whenever required by law or when notified. The defendant cannot change residence or be absent for more than five days without communicating the details of the new address or the place in which he/she can be found.
What is bail?
A: Bail is a restrictive measure that consists of the deposit, pawn, mortgage or pledge, through a bank or not, of an amount established and enforced by a criminal court to a defendant for a crime punishable with imprisonment.
What does it mean that the defendant must stay in his/her address, that is, under a declaration of identity and residence?
A: It is a restrictive measure that prescribes that the defendant should neither leave nor be absent without authorisation from his home or from whichever address he/she resides at that moment.
What is electronic surveillance?
A: It is the use of remote electronic monitoring technology – the so-called electronic tags - to ensure that those who must stay in their address under a declaration of identity and residence comply with it.
What is preventive detention?
A: It is the most serious of the restrictive measures that can be applied to a defendant. It is only applied when all the other restrictive measures are inadequate or insufficient.
What is the maximum sentence for a preventive detention?
A: In general, preventive detention ends after: four months without a prosecution being made; eight months without a decision from the pre-investigation phase, which has taken place in the meantime; one year and two months without a conviction by the Court of First Instance (Tribunal de 1ª Instância); one year and six months without a final and non-appealable judgement.
As the offended party, will I be informed when the defendant is released from preventive detention?
A: If the court considers that the defendant's release may put the offended party at risk, then the court will inform the offended party of the release date.
I was summoned as a witness in an inquiry. Can I be subject to any restrictive measure?
A: No. Restrictive measures can only be applied to crime suspects who have become defendants.
What is the accusation?
A: It is one of the ways to close the criminal investigation. The defendant is referred to trial to be judged by the crimes he/she is accused of having committed. Usually the accusation is submitted by the Public Prosecutor but this can be done by the assistant in the case of private crimes.
What does dismissing the process means?
A: It is another way to close the investigation phase. The defendant does not go to court because there is not enough evidence about who committed the crime.
What does suspending the process temporarily mean?
A: It is possible to close criminal proceedings for less serious crimes by having the defendant complying with rules of behaviours or injunctions for a given period. It requires his/her agreement.
I took the role of assistant in the criminal process and was notified that the process was dismissed. What can I do?
A: As an assistant, which requires that you are represented by a lawyer, you can request that a pre-trial phase (or instructing phase) takes place. This will involve a judge who will assess whether the decision to dismiss the case was correct or not.
What is the common criminal procedure?
A: It is the normal procedure and is always used if there are no requirements to apply a special procedure.
What is the abbreviated procedure?
A: It is one of the special criminal procedures - it can be used if requested by the Public Prosecutor and applies to crimes punishable with a fine or a prison sentence not exceeding five years and if there is simple and obvious evidence that the crime took place and about who committed it.
What is the summary procedure?
A: It is a special criminal procedure - it is a simplified procedure that can be used to judge people who are caught in the act of committing a crime. It is applied to crimes which, as a rule, are not punishable with a prison sentence exceeding five years and whose trial can take place 48 hours after the defendant is arrested.
What is the highly summarised procedure?
A: It is another special criminal procedure that can be applied if the offense is punishable with either a prison sentence not exceeding five years or with a fine only. This measure requires that the Public Prosecutor agrees that a fine or a non-custodial security measure should be applied in that specific case and that he/she presents this request to the court. Then, it is necessary that the judge, the defendant and, in the case of private crimes, the assistant agree with the request.
What does in flagrante delicto mean?
A: It is when an individual is caught in the act of committing a crime, has just committed a crime, or when, just after the offence is committed, he/she is chased by someone or found with objects or evidence that clearly demonstrate that the individual has just committed or participated in the crime.
What is judicial secrecy?
A: In cases under judicial secrecy, neither the contents of the criminal process can be disclosed nor the public is allowed to attend the criminal proceedings. Nevertheless, the rule is that all phases of the proceedings are public both for the procedural subjects (internal publicity) and the general public. This implies that the public can watch procedural acts, the media can report them and anyone - both the public and the media - can consult the process and request copies and certificates from any part of the process. However, at the request of the defendant, the assistant or the offended party, the Pre-trial Judge can restrict external publicity and decide that the investigation phase is under judicial secrecy. In cases under judicial secrecy, the Public Prosecutor can, while the investigation is underway, oppose that reports can be consulted and requests for certificates and/or information by other parties in the process. Violating judicial secrecy is a criminal offense.
What does non-officially (oficiosamente, in Portuguese) means?
A: It means that the judicial authority carries out steps or decisions in the process on its own initiative.
What are the court vacations (férias judiciais, in Portuguese)?
A: They are the periods of vacation for the courts. They are scheduled from the 22nd December to the 3rd January, from Palm Sunday to Easter Monday and from the 1st to the 31st August. Procedural acts are not conducted during vacations, except the ones regarding defendants detained or arrested or the ones needed for ensuring the freedom of individuals.
THE PRE-TRIAL PHASE
What is the pre-trial phase (or instructing phase)?
A: It is an optional phase in criminal proceedings that takes place in-between the investigation phase and the trial. Its purpose is to check whether the prosecution or the case dismissal were justified considering the evidence collected or still to be assessed.
What is the maximum duration of the pre-trial phase?
A: As a rule, the judge closes the pre-trial phase within the maximum time limit of either two months if the defendants are arrested or four months if the defendants are not under arrest.
What is an investigating judge?
A: It is the judge responsible for leading the pre-trial phase and who intervenes to protect individuals' fundamental rights.
What are investigation measures (actos de instrução)?
A: They are inquiries and collection of evidence ordered by the judge whose aim is to support the decision taken at the end of the pre-trial phase.
What is the instructing debate (debate instrutório)?
A: It refers to proceedings led by the judge and including the Public Prosecutor, the defendant and the assistant. This is a discussion on whether there is enough evidence to take the defendant to trial.
What is the instructing decision (decisão instrutória)?
A: It is the decision taken by the investigating judge at the end of the pre-trial phase and can either be an indictment or a non indictment.
What is an indictment (despacho de pronúncia)?
A: It is a decision taken at the end of the investigation phase and it means that the defendant will go to court because there is enough evidence to support a possible decision to apply a punishment.
What is a non-indictment (despacho de não pronúncia)?
A: It is a decision taken by the investigating judge at the end of the investigation phase. The judge decides that the defendant will not go to court because there is not enough evidence to support a possible decision to apply a penalty.
The decision taken at the end of the investigation phase was a non-indictment. How can the assistant react?
A: The assistant can present an appeal against the decision in a higher court, which can revoke that decision and take the case to trial.
TRIAL / APPEALS
What is the trial?
A: It is the criminal proceedings' stage where the evidence is examined formally, generally in a public hearing, and the sentence is decided - either to condemn or absolve the defendant.
What is the judge?
A: It is a public official presiding over a Court who has the authority to judge and apply the Law to specific cases; also known as judicial magistrate.
What are the courts?
A: They are independent bodies that administer justice, that is, they are the organs of authority whose purpose is resolving legal disputes.
What is a court with a single judge (tribunal singular)?
A: It is a court composed by a single judge and who judges the processes for less serious crimes (prison sentence not exceeding five years).
What is a collective court?
A: It is a court composed by three judges that judges the processes for more serious crimes (with a prison sentence over five years).
What is a jury court?
A: It is a court composed by three judges and four jury members.
What is a jury member?
A: It is the citizen summoned to do jury service in court. He/she is required to be in the electoral register, to be under 65 years old, to have completed compulsory education, not to have any physical or psychological impediment for the fulfilment of the position, to have full civil and political rights, not to be under arrest or imprisonment and not to be contumacious.
How are jury members selected?
A: Jury members are selected randomly twice from the electoral register. The process comprises the following phases: random pre-selection of jury members; questionnaire to assess whether they demonstrate the abilities required; random selection of jury members; public hearing and appointment. Acting as a jury member is a compulsory public service and an unjustified refusal to do it is a criminal offence.
What does contumacy mean?
A: It is a situation that arises when the authorities are not able to summon the defendant or arrest him/her to be taken to trial. The authorities adopt a set of measures aiming at pressing the defendant to present himself/herself before them (e.g. not being allowed to request certain documents such as identity card or driving licence). The defendant is then said to be contumacious.
What is the defence lawyer?
A: It is the defendant's lawyer chosen by the defendant or appointed at the State's expense. He/she defends the defendant's interests before the legal authorities.
What is the public defender?
A: It is the lawyer assigned by the legal authority (the Public Prosecutor or the judge) to defend the defendant either on their own initiative or requested by the defendant.
What is power of attorney?
A: It is the act of authorizing another person to act on your behalf. When these powers are conferred to a lawyer, it takes the name of procuração forense, which means power of attorney.
What is understood by evidence?
A: It refers to different kinds of information used to demonstrate the reality of the facts (for example: documents, witnesses, technical examinations).
What is a summon?
A: It is the way to notify people either that they are to attend a court trial or to inform them about specific facts or issues.
What is a witness?
A: Anyone summoned to a court hearing under oath because of their direct knowledge of the facts.
What are the witness's duties?
A: The most important duties are: attending on the day, time and place specified in the summon, to comply with the instructions on how to testify and to answer truthfully to the questions (otherwise, the witness may be subjected to criminal charges).
Can I visit the court and the courtroom before the day I am testifying as a witness?
A: You can and you should. Visiting the court can help you becoming familiar with the court atmosphere. But do not forget that some court hearings are not public when the judge decides excluding or restricting publicity.
On the day of the trial and as a witness, can I be accompanied by relatives or friends?
A: Yes, but while you are in the room for the witnesses and other participants in the proceedings your relatives or friends cannot be there. This also applies while you are being examined. While you are being heard, your relatives or friends can either wait outside the court room or, if they wish, they can watch the trial in the seats reserved to the public.
As a witness, am I required to provide my home address for notification purposes?
A: Witnesses are not required to provide their home address. They can choose to provide a work address or another address to avoid potential harassment or retaliations.
I have already been heard as a witness within these criminal proceedings. Despite that, do I still need to testify in the trial?
A: Yes, you do. In effect, for the evidence to be used in the trial it needs to be produced or examined by the court.
I am a witness and I am not able to attend a court hearing. What can happen?
A: If you do not attend the trial and do not provide any justification for that, you may have to pay a fine and the expenses incurred by your non-attendance and you may be detained for the period necessary for the trial to be conducted. If the reason for your non-attendance is considered outside your responsibility, then the law requires fulfilling a set of requirements to justify your non-attendance: if you expect not being able to attend the trial, you should inform the court at least five days in advance; if something unexpected happens, you must inform the court on the day and time you were summoned that you are not able to attend; if you are unwell, you have to present a medical certificate including details on the reasons why it is impossible or not convenient to attend and for how long.
As I cannot attend the court hearing on the day and time I was summoned as a witness, can I ask someone else to do it for me?
A: No. Testifying is a personal act that cannot, in any circumstance, be done by proxy.
I attended a trial as a witness. Am I entitled to have the expenses I incurred from travelling to court reimbursed?
A: Witnesses are entitled, upon request, to a sum to pay for their journey to court which depends on the distance travelled and the time spent.
I have in my possession objects and documents I consider important. What shall I do in the trial?
A: If the witness presents any object or document that can be used as evidence, the court will make reference to them and will enclose them to the process or ensure they are properly stored.
Can the witness leave the court after being heard?
A: Witnesses, experts, the assistant and the civil parties can only leave the hearing area after the judge orders or authorises them to do so. This authorisation is not given when there are reasons to believe that their presence can help finding out the truth.
After testifying, I left the court. However, I would like to know the court's decision. what can I do?
A: Anyone interested can request authorisation to consult the process and a copy or certificate of the decision at their expense. The legal authority who produced the last decision in the proceedings is responsible to decide on this request.
What is the list of witnesses?
A: It is the list of the people to be heard in the proceedings indicated by a party to the proceedings.
What is an expert?
A: It is someone with specialised technical, scientific or artistic knowledge, called in by the court to observe, analyse and provide their interpretation of certain facts and drawn conclusions from them.
What is a teleconference?
A: It enables the person summoned to court providing statements without having to be present in court. On the day of the hearing, the witnesses will appear at the court of their area of residence and will be connected to the court where the criminal proceedings are taking place to be heard.
I was summoned to provide a statement in a trial as an assistant. Am I required to tell the truth?
A: The assistant is under obligation to tell the truth. Otherwise, he/she may face criminal charges.
Can the defendant lie?
A: The defendant is only required to answer truthfully to the questions about his/her personal details. To all the other questions, the defendant can stay silent or even not tell the truth without suffering any legal sanction.
What are oral statements?
A: It is a declaration each party - Public Prosecutor and lawyers of the assistant, defendant and civil parties – has a right to make after the evidence has been produced.
What is understood by the principle of presumption of innocence (in dubio pro reo)?
A: It is a fundamental principle in the Portuguese Penal Code that considers that a defendant should be presumed innocent if reasonable doubt about his or her guilt remains. In doubt, the court will thus decide in favour of the defendant (acquittal, charges are either not increased or reduced, etc.).
What is the sentence?
A: It is the decision taken by a court presided by a single judge.
What is the court ruling (acórdão)?
A: It is the decision taken by a collective court or a jury court.
What does the punishment consist of?
A: It is the punishment applied in Penal Law. The main penalties are a prison sentence or a fine.
What is a prison sentence?
A: A prison sentence is a main type of sentence that consists in depriving the offender of his or her freedom by committing him or her to spend time in prison.
What is the length of a prison sentence?
A: The length of a prison sentence, in general, ranges from a minimum of one month and a maximum of twenty years. The maximum limit is twenty-five years for the cases covered by the law, for example, aggravated murder.
What is a fine?
A: A fine is a main type of sentence that sets a financial punishment calculated in days, between 10 and 360, with each day corresponding to a financial sanction between € 5 and € 500, according to the offender's financial situation and expenses related to his/her personal responsibilities.
What can the person sentenced with a fine and having financial difficulties do?
A: Whenever the court considers that the economic and financial situation of the sentenced person is difficult, it can authorize the payment of the fine within a period not exceeding one year or in instalments, with the last one having to take place within two years from the date the sentence. Not paying one of the instalments requires paying all the outstanding debt.
What are the minutes?
A: It is the official document describing and recording what happened during a particular procedural act in the criminal proceedings, for example the trial hearing.
The defendant was convicted of more than one crime. Are as many sentences as the crimes applied?
A: No. The defendant receives one single sentence whose limts are determined as follows: the maximum limit for the sentence equals the sum of the sentences applied to each conviction without exceeding 25 years and the minimum limit equals the highest sentence applied.
At the end of the trial, the defendant was acquitted. As the assistant, what can I do?
A: If the assistant, supported by the lawyer, considers that the decision is wrong, then he/she can present an appeal against it in a higher court.
What is a suspended prison sentence?
A: When the defendant is imposed a prison sentence up to five years, the court can suspend temporarily the sentence after taking into consideration the defendant’s personality, life conditions, his/her behaviour before and after the crime and the crime circumstances. The suspension has the same duration as the prison sentence.
Can the court make the suspended prison sentence dependant on the defendant complying with a set of duties and rules of behaviour?
A: Yes. Those duties can include, for example, to pay within a set period a compensation to the victim or a donation to the State or charities. The rules of behaviour can include the requirement to live in a particular area, participate in specific programmes or activities or fulfil certain obligations. The suspended prison sentence is revoked if the sentenced person does not comply with the imposed duties and rules of behaviour or if he/she is convicted for another crime.
What happens if the suspended prison sentence is revoked?
A: Revoking the suspended prison sentence means that the offender will have to serve the prison sentence decided by the court.
What is an appeal?
A: It is how the parties and participants in the process can react against a legal decision they do not agree with. The appeal requests the intervention of a higher court (the Tribunal da Relação or the Supreme Justice Court).
What is an ordinary appeal?
A: It assumes that the decision being challenged is not the final decision, that is, it can still be appealed. The applicant (who appeals) needs a legitimate justification for the appeal, to bring it within a specified period (deadline) and that the decision can be appealed (admissibility).
What is meant by extraordinary appeal?
A: It is the appeal aimed at repairing a great injustice caused by a final court decision. If it succeeds, then the trial will be repeated.
Can the appeal submitted by the defendant aggravate the sentence?
A: No. In fact, the law prohibits the appeal court to change the decision and apply a more serious sentence but it does not preclude the possibility of a lighter sentence, that is, one favouring the applicant/defendant.
Can someone convicted of a crime be judged again for the same crime?
A: No. In fact, no one can be judged twice for the same crime.
IMPLEMENTING SENTENCES
Is the time spent in preventive detention subtracted from the prison sentence?
A: Yes, the time spent in preventive detention is subtracted from the prison sentence as well as periods of under the obligation to stay at home.
Can a prison sentence be replaced with another sentence?
A: When the prison sentence does not exceed one year it can be replaced with a fine. However, if the fine is not paid, the sentenced person has to serve the prison sentence.
Can the sentenced person serve the prison sentence under house arrest instead?
A: If the sentenced person agrees, they can serve the detention under house arrest, which will be monitored remotely by the use of technology. The prison sentence cannot exceed one year but this maximum limit can be extended to two years when the sentenced person's personal or family circumstances do not justify incarceration, including: the sentenced person is pregnant, is aged under 21 years or above 65 years, has a serious illness or disability, and has dependents minor or is the only carer for a relative.
What is the weekend detention (prisão por dias livres)?
A: The weekend detention is the deprivation of liberty for periods corresponding to the weekend. It applies when the prison sentence does not exceed a maximum limit of one year and should not be replaced by another kind of penalty.
What is semi-detention?
A: Semi-detention is a measure of deprivation of liberty that allows the sentenced persons to keep their normal professional activities, professional training or studies by only leaving their home for these specific reasons. It applies to prison sentences not exceeding one year, cannot be served in free days and requires the sentenced person's consent.
What is a community service sentence?
A: A community services sentence consists of providing free services to the State, to other public bodies or private organisations whose community support work is acknowledged by the court. This measure only applies when the prison sentence does not exceed two years and requires the sentenced person's consent.
Is it possible to replace a fine with labour?
A: Yes. In effect, upon the sentenced person's request, the court can order that the fine is replaced with days of work in State-owned services, in public bodies or in charities.
What is a reprimand?
A: The reprimand replaces the fine penalty. It is a formal verbal warning given in a court hearing to the defendant. It applies when the fine penalty has the maximum limit of 240 days, if the damage has been repaired and if the court considers that the warning addresses adequately and sufficiently the intended punishment.
What happens if the fine is not paid?
A: If the fine is not paid, then it is replaced by a prison sentence even if the crime was not punishable with a prison sentence. Its length is based on the corresponding period reduced to two thirds. The maximum limit of one month does not apply here.
When the defendant has a prison sentence, is he/she required to serve the total length of the sentence?
A: Under the parole or conditional release law, anyone with a prison sentence exceeding six years is put on parole after serving five-sixths of the sentence. The court also puts the sentenced person in parole when half of the sentence and a minimum of six months have been served or when two-thirds of the sentence and a minimum of six months have been served. Parole is dependent on the sentence person's consent.
Is granting parole mandatory?
A: No, it follows proceedings that end up with a court decision (by the Tribunal de Execução das Penas) approving or denying parole, except when five-sixths of the sentence have been served.
Is the offended party informed that the sentenced/arrested person will be released?
A: When the court considers that releasing the sentenced person can pose risks to the offended party, then it informs them of the date of release either when the prison sentence has ended or when parole has started.
Is the offended party also informed when the sentenced/arrested person escapes?
A: The Public Prosecution Service informs the Court that the arrested person has escaped, who will then inform the offended party if it considers there are risks to them.
LEGAL AID
Frequently Asked Questions (FAQs)
What is the system of access to law and the courts?
A: It is a State system aiming at ensuring that no one is prevented from knowing, exercising or defending their rights even when they cannot afford that. It covers legal protection which includes legal consultation and legal aid.
What is legal consultation?
A: It is legal advice about the law that applies to specific issues or situations provided free of charge to those who cannot afford it.
What is legal aid?
A: It is a way of having access to the law and the courts for those who cannot afford that. It allows them not to pay the justice fee and other expensed incurred with the proceedings and the fees and expenses with the lawyer.
What is the justice fee?
A: They are amounts to be paid to the court and that are required by criminal proceedings for taking the role of assistant, requesting the pre-trial phase and submitting an appeal.
COMPENSATION
Frequently Asked Questions (FAQs)
A crime has caused me material and non-material damage. Do I have a right to compensation?
A: Defendants responsible for crime-related damage and sentenced in criminal proceedings for the crime have to pay compensation for those damages. The authorities are under the obligation to inform the injured parties of their right to claim civil compensation and what formalities to follow.
What is the civil claim?
A: It is the compensation claim by the injured party as a consequence of the damage caused by a crime.
What is the injured party?
A: It is the one who suffered damage caused by the crime. If the injured party files a civil claim in the criminal proceedings then becomes a civil party.
What is a civil party?
A: It is either someone who filed a civil claim or someone against whom a civil claim was filed.
What is meant by harm?
A: It is the financial loss (for example, destruction of property, expenses) or moral (for example, pain associated with aggression and medical interventions) suffered by a person due to the criminal act of another.
Is it necessary to be represented by a lawyer to file a civil claim?
A: Being represented by a lawyer is only required if the amount in the compensation claim exceeds the jurisdiction of the court of 1st instance (tribunal de 1ª instância) – 5.000,00 €. When the compensation sought is lower than this value, then the injured party can file the claim using a simple application procedure not subject to special formalities.
What happens to the civil claim if the defendant is acquitted?
A: Even if the defendant is acquitted, the sentence may convict the defendant to pay a civil compensation when that claim was proved.
What is a deadline?
A: It is the time period within which one can exercise a right, fulfil a duty or perform a particular act.
What is a legal deadline?
A: It is a deadline set in the law or by the judge for an act within criminal proceedings.
I was the victim of a crime and suffered serious bodily harm (a violent crime). Am I entitled to compensation?
A: The compensation is firstly paid by the offender. However, the victim is entitled to a State compensation when the offender cannot pay it and when the harm has significantly disrupted the injured party's life.
What is an offender?
A: It is the person who committed a crime.
What are crimes against sexual freedom?
A: Crimes against sexual freedom include sexual coercion, rape, sexual abuse of a person unable to resist and of an institutionalised person, sexual fraud, artificial procreation without consent, procuring (pimping) and sexual harassment.
What constitute crimes against sexual self-determination?
A: Crimes against sexual self-determination include sexual abuse of children, sexual abuse of minor dependents, sexual acts with adolescents, use of child prostitution, procuring or pimping of minors and child pornography.
What is the civil claim?
A: It is the claim filed by the injured party for the harm suffered from a criminal act.
What is damage to property?
A: It refers to damage to one's property that can be directly assessed in money terms.
What is non-material damage?
A: These losses cannot be assessed in money terms since they concern the health, well-being, reputation and good name of the victim - for example, physical pain and psychological distress (resulting from the physical deformities suffered), loss of prestige and reputation, etc. These can only be addressed by a monetary compensation imposed to the offender. Compensation[AL3] for non-material damages suffered in violent crimes cannot be claimed.
What does equity mean?
A: It is a set of principles based on the idea of Justice. When decisions are based on equity, moderation and justice prevail over the rules of law.
What does the right to child maintenance mean?
A: This right includes all that is necessary to cover everyday living costs, housing, clothing and, for minors, education. This right may become relevant when someone is not able to meet their livelihood costs but another one is, so the latter becomes responsible for ensuring these maintenance costs - for example, the spouse, the former spouse, descendants, ascendants and siblings.
What is an união de facto?
A: An união de facto refers to situations when same-sex or opposite-sex couples live in conditions similar to marriage for more than two years.
What is the Motor Insurance Guarantee Fund (Fundo de Garantia Automóvel)?
A: It is the body responsible for dealing with compensation claims from road accidents caused by vehicles subject to compulsory insurance (note that the State is exempt from the obligation to insure their cars) and registered in Portugal. These claims cover:
» bodily injury when the person responsible is unknown or does not have valid and effective insurance, or when the insurance company is declared bankrupt;
»material damage when the person responsible is known but does not have valid and effective insurance;
» material damage when the person responsible is not known and the Fund must pay a compensation for significant personal injuries or the vehicle that caused the accident was abandoned at the scene, does not have valid and effective insurance, and the police report confirms that the vehicle was present at the accident site.
» significant bodily injury: injury causing death or hospitalisation for 7 days or longer, temporary total disability for a period of 60 days or longer or permanent partial disability of 15% or above.
What is the Portuguese Green Card Bureau (Gabinete Português de Carta Verde)?
A: It is an association integrated in the Portuguese Association of Insurers (Associação Portuguesa de Seguradores) that deals with accidents involving vehicles registered abroad that take place in Portugal.