By: JOÃO TABORDA
Head of the litigation department
Neville de Rougemont e Associados,
Sociedade de Advogados
THE DISAPPEARANCE of four-year-old Madeleine McCann from her bed on Thursday, May 3, has touched us all in the past week. Much has been said about the Polícia Judiciária’s (PJ) investigation, the searches conducted by the police and the rule of Secrecy of Justice.
The principle of Secrecy of Justice and the role of the PJ can be better understood if we put them in the context of the Portuguese criminal legal system.
Thanks to American television, most of us are familiar with the system of criminal investigation in the US, in which state criminal prosecutions are conducted by the District Attorney’s Office.
This office has at its disposal a department of criminal specialists in investigation, who prepare the court case, gather information, interview suspects and witnesses and prepare the People’s case against the Defendant, which will eventually be distributed to a selected prosecutor to prosecute in court on behalf of the People.
In general, this system is similar to the Portuguese one. In Portugal, when a crime occurs, it is reported to the police authorities, either the Polícia de Segurança Pública (PSP) or the Guarda Nacional Republicana (GNR).
The criminal complaint, once received by the police, is investigated briefly and on a preliminary basis by the PSP or GNR and then it is immediately referred to the local Public Prosecutor’s Office. From this moment on, the public prosecutor’s office takes full charge of the proceedings (much in the same way as the District Attorney’s Office in the US) and is assisted in its investigation by the PJ.
The PSP, GNR and other security services can, in turn, be instructed by the PJ to assist in the investigation by, for example, conducting searches.
No line of investigation or enquiry or search is performed by the PJ without the knowledge of the Public Prosecutor’s Office or without its permission or instruction.
A Criminal Investigation Judge supervises all these proceedings and authorises, judicially, all the acts and orders given by the Public Prosecutor to the PJ namely where an arrest or search warrant is necessary.
The Secrecy of Justice rule applies only during the investigation of the crime. Article 86 of the Portuguese Criminal Procedure Code states that all parties to the investigation are bound by a duty of secrecy. This duty of secrecy applies to all those connected to the investigation and to all those who have obtained knowledge of the investigation from the commencement of the investigation to the moment that the proceedings become public.
Traditionally, the rule of Secrecy of Justice aims to guarantee the effectiveness of a criminal inquiry and a fair investigation and trial.
More recently, this rule has been defended on the basis of the rights to privacy, to a good name and reputation of victims, defendants or other parties involved in criminal proceedings, and also on the basis of the presumption of innocence. For these reasons, the Portuguese Constitution includes under the chapter of Basic Rights the “Right to the Secrecy of Justice”.
The rule can also be justified on the basis of protecting the gathering of evidence. Third parties knowing of prospective police action in gathering evidence could lead to its destruction or to the tampering with such evidence.
The rule allows the investigation to follow its course undisturbed and prevents witnesses being coerced by the suspect or material evidence being compromised; therefore it is extremely important at the initial stage of investigation.
The principle of secrecy, to a larger or lesser degree, is in use in police forces around the world including the British police. However, differences may lie in the way that other police forces, particularly in the US and the UK, use the media as a vehicle for spreading information with the objective of bringing new evidence to the investigation.
The PJ, with authorisation of the Criminal Investigation Judge (JIC), can provide information to the media. In addition, provision is made in Article 86 of the Portuguese Criminal Procedure Code for the PJ to provide the press with summary reports regarding the ongoing investigation specifically in order to prevent crime.
Also, it is not unusual for the PJ to ask for information through the media in particular cases. However, each police investigation is unique and requires more or less secrecy to gather evidence and make arrests. This does no mean that the PJ is failing to release information to the public for the sake of it – it only means that some information must be gathered more discreetly than other information.
Care must be taken that information which is released would not, for example, compromise an investigation by alerting perpetrators of the PJ’s intentions or potential course of action.
Although the physical search for Madeleine has been scaled down, the detective work is still ongoing. While the PJ may not have a media liaison department on the scale of the UK or US police, it has a good record in missing persons cases.
The rule of secrecy of justice not only protects those who have been interviewed in the course of the investigation, particularly in such a high profile and emotive case such as this, but it also protects Madeleine’s parents from public scrutiny.
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