THE 15th revision to the Criminal Procedure Code of the law number 48/2007, which was published on August 29, came into effect on September 15.
The main reasons for this review relate to impositions of International Law, as some rules have been found to be unconstitutional, and the slowness in the criminal process itself.
Some of the main changes are the definitions of terrorism, violent crime and organised crime, which have now been included in the penal code.
Conflicts, in terms of court jurisdiction, are now decided in an easier manner by the Chief Judge of the Supreme Court, High Court or respective regional criminal sections.
In relation to the investigation stage of a crime, a provision has been included where if there is no grounds that a crime has been committed, an inquiry will not be initiated, which was not the case before.
To name someone as “arguido” the criminal police force now requires validation by a judge.
To protect the suspect’s rights, before the first interview, the person must be informed of the facts that are attributed to them and of the existing evidence, as long as this does not jeopardise the investigation or the fundamental rights of third parties.
Interviews now have a maximum duration of four hours, where previously there was no time limit, and can be resumed for the same period of time but only with a minimum interval of an hour. Statements made in violation of these limits are considered void.
Witnesses can now give the Court their employment address or any other address they choose, for notification purposes. Witnesses can also use the assistance of a lawyer, who can inform them of their rights but cannot intervene in the questioning.
On the justice secrecy issue, the changes that were made created a less rigid system. From now on, secrecy may be set aside pending prevailing interests. The access of privileged content in proceedings has also been restricted. The parties can now be allowed access to the proceedings as long as the investigation or the fundamental rights of third parties are not affected.
Regarding personal privacy protection, it is now set in the law that physical examinations or examinations of physical characteristics can only be ordered by a judge.
It is now also possible for police forces to conduct home searches in cases of terrorism, violent crimes and organised crime as long as they have the consent of the person involved. In crimes punishable with imprisonment greater than three years, these searches are also allowed if the accused is caught in the act.
Phone tapping is now subject to stricter regulations. Only the suspects, accused, intermediaries and victims, which in this case require express or presumed consent, can be subject to phone tapping. The records and phone transcripts need to be presented to the Public Prosecutor by the criminal police every 15 days. Those records and transcripts are subsequently inspected by the judge within 48 hours.
With regards to preventive arrest, some changes have also occurred. The new code has reduced the period of imprisonment, while awaiting trial, taking into consideration the fact that this measure must be used as a last resort.
In cases of sexual and human trafficking crimes, in order to protect the victims and witnesses, it is now possible during the enquiry stage to record statements or testimonies, to be used later on in the trial sessions. This means that victims and witnesses are not obliged to be present in court, when a given case comes to trial.
Finally, regarding the final hearing, the main change is that the session is now also always recorded. The parties cannot choose otherwise.
Neville de Rougemont & Associados,
Sociedade de Advogados
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