I'll fetch some of the information that I have collected about Portuguese law, and legal issues, throughout the past 2.5 years.

Anyone who wishes to contribute is very, very welcome!

Any specific requests anyone may have, please PM or email me, and we'll try to find the appropriate material.

The Portuguese Penal Process Code - will open as a .pdf file in a separate window.

The Portuguese Penal Code - will open as a .pdf in a separate window.

The Portuguese Civil Process Code - will open as a .pdf file in a separate window.

The Portuguese Civil Code - will open as a .pdf file in a separate window.

From the Madeleine McCann case investigation, one of the last paragraphs of the archiving dispatch:

"Nevertheless, anyone who feels unsatisfied about the epilogue of the investigations, will have the possibility to react against it, having the possibility of eventually changing that epilogue, by prompting diligences based on new evidence, as long as that person has the legitimacy to request them and the requested diligences are serious, pertinent and consequent. They may do so in three ways: by requesting the reopening of the inquiry, under article 279, number 1 of the Penal Process Code; appealing hierarchically against this dispatch under number 2 of article 278, or in another case, under number 2 of article 279 of the Penal Process Code, or by requesting the opening of the instruction under article 287, number 1, item b, of the Penal Process Code."

Concerning the request to open the instruction phase, this is an excerpt of a brief explanation about that process, that I have sent by email to someone who requested further information:

"A criminal investigation is carried out after a criminal process is filed with the Public Ministry. This investigation can end either with an accusation or an archiving.

After being notified of either the accusation or the archiving, the arguido or the assistant may request, within 20 days, the opening of the instruction phase. The instruction phase is optional.

There has to be a formal request to open the instruction phase, where the person who makes said request has to present arguments, and may request diligences, present evidence that was not considered by the investigation, etc. A maximum of 20 witnesses may also be appointed.

The instruction judge can only refuse this request if it is presented out of time, if the judge is not competent for the case, or the request is not legally sound.

Then, the instruction judge holds an autonomous investigation, with any instruction actions that he finds necessary, and is obliged to hold an instruction debate, where all parties - the Public Ministry, the arguido, his defendant, the assistant and his lawyer - take part. These same parties may request and attend instruction actions, and request clarification and ask questions that they find relevant for the discovery of truth.

The judge generally carries out the instruction actions himself. He may ask for assistance from criminal police for any diligences and investigations, except for the interrogation of the arguido and the questioning of witnesses, which he must perform personally. It is also the judge's prerogative to refuse any requested actions that he deems of no relevance or that serve merely the purpose of delaying the process.

This is, as you realised by now, a very intense and 'interactive' phase of the judicial process, where the judge is head of the process, but all other parties play a relevant and active role, as well.

After all instruction actions have been performed, or in case the judge sees no need for any actions, a date is set for the instruction debate. This debate is a discussion between all parties, held in front of the judge, and its purpose is to discuss, orally and with the inclusion of the contradictory, whether or not the inquiry and the instruction phases have produced enough facts and legal elements to submit the arguido to trial.

The instruction phase lasts for a maximum of two months if there are any arguidos under arrest, or four months otherwise. At the end of the instruction phase, the judge will either pronounce the arguido for trial, or not."

The appropriate legislation can be found under Title III - About the Instruction, articles 286-310 of the Penal Process Code.

From the Portuguese Penal Code:

"Artigo 138.º - Exposição ou abandono

1 - Quem colocar em perigo a vida de outra pessoa:
a) Expondo-a em lugar que a sujeite a uma situação de que ela, só por si, não possa defender-se; ou
b) Abandonando-a sem defesa, em razão de idade, deficiência física ou doença, sempre que ao agente coubesse o dever de a guardar, vigiar ou assistir;
é punido com pena de prisão de 1 a 5 anos.

2 - Se o facto for praticado por ascendente ou descendente, adoptante ou adoptado da vítima, o agente é punido com pena de prisão de 2 a 5 anos.

3 - Se do facto resultar:
a) Ofensa à integridade física grave, o agente é punido com pena de prisão de 2 a 8 anos;
b) A morte, o agente é punido com pena de prisão de 3 a 10 anos."

Translation:

"Article138 - Exposure or abandonment

1 – Whomever places another person’s life in danger:
a) By exposing her in a location that subjects her to a situation from which she cannot defend herself on her own; or
b) Abandoning her without defence, due to age, physical deficiency or illness, whenever it was the agent’s duty to guard, watch over or assist the person;
is punished with a prison sentence of 1 to 5 years.

2 – If the fact is practised by an ascendant or a descendant, adopter or adoptee of the victim, the agent is punished with a prison sentence of 2 to 5 years.

3 – If the fact results in:
a) A serious offence to physical integrity, the agent is punished with a prison sentence of 2 to 8 years;
b) Death, the agent is punished with a prison sentence of 3 to 10 years."

It is very important to note that this crime has to be committed with 'dolo' (roughly: intent), as described under article 14 of the Portuguese Penal Code.

Open Letter - Doubts on the McCann Process

The following is an email to a reader and member of the 3 arguidos who had some doubts regarding the Portuguese Penal Code, the McCann's process archival and the feasibility of the request to reopen the process by the former arguidos if they had wished to do so. I believe that it can help to elucidate some doubts, so I'll post here as well.

«I'll try to answer your questions, I just read again the Portuguese Penal Code [the articles 236 up to 310] and asked Astro as well to help me in giving you the correct answers, it's a bit hard to explain legal stuff since I'm not a lawyer. Anyway, there are two distinctions to keep in mind, the request to reopen the process and the request to open the instruction phase.

The reopening of the case by the Public Ministry, with the subsequent investigation by the PJ [the criminal investigative police] only happens if new evidence is considered by the Public Ministry to be relevant. This can happen at any given moment until the process prescribes, generally after 15 years, and if the case is considered to be of homicide, after 20 years. Any person can request the reopening of the process, thus, the arguido, a denouncer with capacity to be constituted as an assistant, an assistant to the process, an anonymous denouncer, anyone can request the opening of the process.

The opening of the instruction phase is something different in the procedures and also in the end result; this type of reopening has to be requested in the legal time limit of 20 days after the archival of the process. Here I'll quote extracts of Astros' explanation: “After being notified of either the accusation or the archiving, the arguido or the assistant may request, within 20 days, the opening of the instruction phase, which will then be conducted by the instruction judge. (…) Then, the instruction judge holds an autonomous investigation, with any instruction actions that he finds necessary, and is obliged to hold an instruction debate, where all parties - the Public Ministry, the arguido, his defendant, the assistant and his lawyer - take part. (…) The instruction phase lasts for a maximum of two months if there are any arguidos under arrest, or four months otherwise. At the end of the instruction phase, the judge will either pronounce the arguido for trial, or not.”

The second alternative that Rogério Alves mentions "(...)“I’m analyzing the process to see if it is worthwhile to give some impulse to the process, that is, to request the opening of the instruction or to advance to a hierarchical superior at the Public Ministry" - is another possibility presented under article 278 of the CPP, translated below.

Article 278 - Hierarchical Intervention

1) During the period of 20 days counting after the date when the opening of the instruction can no longer be requested, the immediate hierarchical superior of the magistrate from the Public Ministry may, by is own initiative or by request of the assistant or of the denouncer with capacity to be constituted as an assistant, determine that the accusation is formally made or that the investigation proceeds, indicating, in this case, which are the diligences to be made as well as the deadline within which they must be completed.

2) The assistant and the denouncer with capacity to be constituted as an assistant may, if they opt not to request the opening of the instruction, appeal for a hierarchical intervention, according to the previous article, within the deadline foreseen for said appeal.

Then we have the next article which explains what happens in the case if the legal option to ask for the reopening of the inquest is not made by any of the parties within the deadline foreseen in the CPP, which I will also translate.

Article 279 - Reopening of the Inquest

1) After the ending of the deadline which is referred in the previous article, the inquest can only be reopened if new elements of proof emerge which invalidate the fundamentation argued by the Public Ministry in the archival dispatch.

2) From the dispatch of the Public Ministry which delays or refuses the reopening of the inquest there is a complaint made to the immediate hierarchical superior. [This part means that one can appeal to, and make a complaint of the Public Ministry's decision to archive the inquest, but only if the number one of this article is established]

The McCanns could have stopped the archival at any moment up to the end of the deadlines, or even force the reopening of the process now, if for example they requested to do the legal reconstruction with their friends, or if Kate McCann answered the 48 questions that were never answered, or if any of their Tapas friends requested to do new statements, etc.. Those would be evidences that would oblige the Public Ministry to reopen the process - which means that if the McCanns really wanted the process and the legal investigation into the disappearance [presumed death] of their daughter to continue, they could do it.

If we compare the McCanns to the vast majority of parents whose children are missing or were abducted, it's bizarre, to say the least, that the McCanns don't use what is their legal right to force the authorities of the Country where their daughter was allegedly abducted, to continue the investigation.

I imagine that many parents in the state that the McCanns allege to be, would jump immediately at every single opportunity to keep their children's case "alive". In the McCann case, unfortunately, we only see the parents promoting a non charitable fund, t-shirts, plastic bracelets and using the media to excuse [and also obstruct the investigation…] themselves of their culpability of leaving toddlers alone, an indefensible and negligent act.»


The CPP code can be downloaded in full here [ PDF document]

published on 29 July 09, at joanamoraisblog

From the Portuguese Penal Code, Part I - General Principles, the relevant articles that describe intent (dolo) and negligence:

"Article 13

Intent and Negligence

Only acts committed with intent are punishable or, in the cases especially prescribed in the law, with negligence.

Article 14

Intent

1- Whoever, representing an act that constitutes a type of crime, carries it on, with the purpose of accomplishing it, acts with intent.

2- A person still acts with intent when he represents the accomplishment of an act that constitutes a type of crime as a necessary consequence of his conduct.

3- When the accomplishment of an act that constitutes a type of crime is represented as a possible consequence of the conduct, there is intent if the agent acts accepting that accomplishment.

Article 15

Negligence

A person acts with negligence when he does not behave with the care to which, according to circumstances, is obliged and is capable of, and:

a) Represents as possible the accomplishment of an act that constitutes a type of crime, but acts without accepting that accomplishment; or

b) Does not even represent the possibility of the accomplishment of that act."

CONSTITUIÇÃO DA REPÚBLICA PORTUGUESA


Artigo 26.º
Outros direitos pessoais

1. A todos são reconhecidos os direitos à identidade pessoal, ao desenvolvimento da personalidade, à capacidade civil, à cidadania, ao bom nome e reputação, à imagem, à palavra, à reserva da intimidade da vida privada e familiar e à protecção legal contra quaisquer formas de discriminação.

2. A lei estabelecerá garantias efectivas contra a obtenção e utilização abusivas, ou contrárias à dignidade humana, de informações relativas às pessoas e famílias.

3. A lei garantirá a dignidade pessoal e a identidade genética do ser humano, nomeadamente na criação, desenvolvimento e utilização das tecnologias e na experimentação científica.

4. A privação da cidadania e as restrições à capacidade civil só podem efectuar-se nos casos e termos previstos na lei, não podendo ter como fundamento motivos políticos.


Artigo 37.º
Liberdade de expressão e informação

1. Todos têm o direito de exprimir e divulgar livremente o seu pensamento pela palavra, pela imagem ou por qualquer outro meio, bem como o direito de informar, de se informar e de ser informados, sem impedimentos nem discriminações.

2. O exercício destes direitos não pode ser impedido ou limitado por qualquer tipo ou forma de censura.

3. As infracções cometidas no exercício destes direitos ficam submetidas aos princípios gerais de direito criminal ou do ilícito de mera ordenação social, sendo a sua apreciação respectivamente da competência dos tribunais judiciais ou de entidade administrativa independente, nos termos da lei.

4. A todas as pessoas, singulares ou colectivas, é assegurado, em condições de igualdade e eficácia, o direito de resposta e de rectificação, bem como o direito a indemnização pelos danos sofridos.



--------------------------------------------------------



CONSTITUTION OF THE PORTUGUESE REPUBLIC


Article 26
Other personal rights

1. Everyone is entitled to the right to personal identity, to the development of to personality, to civil capacity, to citizenship, to a good name and reputation, to image, to word, to the preservation of intimacy in both private and family life, and to legal protection against any form of discrimination.

2. The law will establish effective guarantees against the obtainment and use, by abusive manner or by manner that contradicts human dignity, of information that concerns persons and families.

3. The law will guarantee the human being’s personal dignity and genetic identity, namely in the creation, development and use of technologies and in scientifical experimentation.

4. The privation of citizenship and the restrictions on civil capacity can only be performed in cases and under terms that are foreseen by law, and cannot be founded on political motives.


Article 37
Freedom of expression and of information

1. Everyone has the right to freely express and divulge his or her thought through words, images or any other means, as well as the right to inform, to acquire information and to be informed, without impediment or discrimination.

2. The exercise of these rights cannot be impeded or limited by any type or form of censorship.

3. Any infractions that are committed within the exercise of these rights are subject to the general principles of criminal law or to the illicit of mere social ordination, and its appreciation is respectively within the competence of judicial courts or an independent administrative body, under the terms of the law.

4. To all persons, individually or collectively, the right to reply and to rectification, as well as the right to indemnification for suffered damages is assured, under conditions of equality and efficacy.




source: Portuguese Parliament

Código Civil Português

SECÇÃO II
Direitos de personalidade

ARTIGO 70º
(Tutela geral da personalidade)
1. A lei protege os indivíduos contra qualquer ofensa ilícita ou ameaça de ofensa à sua personalidade física ou moral.
2. Independentemente da responsabilidade civil a que haja lugar, a pessoa ameaçada ou ofendida pode requerer as providências adequadas às circunstâncias do caso, com o fim de evitar a consumação da ameaça ou atenuar os efeitos da ofensa já cometida.


-------------------------------------------


Portuguese Civil Code

SECTION II
Personality rights

ARTICLE 70º
(General tutorship of personality)
1. The law protects individuals against any form of illicit offense, or threat of offense, to his or her physical or moral personality.
2. Regardless of the civil responsibility at stake, the threatened or offended person may require the taking of measures that are adequate to the case’s circumstances, with the purpose to avoid the consummation of the threat, or to attenuate the effects of the already committed offense.