Portugal

a. General information

1. Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.

Portugal has a single legal framework governing the protection of witnesses and "pentit», owing to the fact that the relevant legislation - Act 93/99, of 14 July 1999- does not distinguish protection measures according to the role played in the proceedings by the individuals to be protected. They are always described as witnesses, in the broad sense of the word.

The methods used to protect such individuals so as to enable them to give evidence are consequently identical, and involve safeguarding the witness's identity by means of voice concealment and distortion and testimony by video-conference.

This legislation also deals with special protection and safety measures, which may be short-term in nature - during the stage of proceedings in which the witness is involved - or take the form of a special safety programme, in the event that the threat is expected to continue once the proceedings are over.

These measures are extended to the witness's relatives and other people close to him/her. The use of special safety programmes is allowed only in cases relating to terrorism, drug trafficking, terrorist organisations, criminal association and trafficking in human beings, and in those cases in which there is clearly a serious threat to the life, person, freedom or valuable property of the people concerned.

The following measures may be included in the special safety programme: provision of false identities; changes in physical appearance; changes of address (including abroad); transportation of people and property; help to find new jobs; and temporary grants.

2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witness and pentito to co-operate with the justice system.

The Portuguese criminal justice system has not traditionally enabled suspects to negotiate their sentences according to the extent to which they have co-operated in the proceedings. The judicial authorities are even somewhat averse to making the principles of legality and involvement in the running of criminal proceedings more flexible. We consequently do not have

what could be described as a legal framework for encouraging co-operation in criminal proceedings.

Admittedly, we do have separate measures used in the prevention of the serious crimes mentioned above (except for trafficking in human beings) which allow for special sentence reductions, or even, in extreme cases, non-application of sentences.

Defendants may be eligible for these measures where they make a serious effort to stop the criminal activity continuing. However, the effects of their repentance or efforts to co-operate with the authorities cannot be guaranteed in advance.

As far as witnesses are concerned, they are bound by a duty to co-operate and to testify truthfully; encouragement is confined to the aforementioned protection measures.

3. Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate under which conditions they are applied.

As explained, we do not have active measures to encourage co-operation. We do have more flexible sentence-serving regimes, however, which are applied - depending on the specific circumstances of the case - on the basis of the prisoner's conduct, rather than any prior co-operation with the authorities. In any event, such a regime is not applied as a reward for a prisoner's co-operation. In this connection, prisoners may be eligible for a special penitentiary regime on safety grounds.

4. For what kind of crime and under what circumstances can witness and pentito protection be applied? Can the measures be extended to the relatives or other persons close to the witness/pent/to?

The protection and safety measures provided for by law (identity protection, video-conferencing, voice concealment and image distortion) may be applied to all types of criminal proceedings, on the condition that, in the specific case in question, there is a genuine threat to the witness, those close to him/her and/or his/her valuable property. Special protection and safety programmes may be implemented only in respect of the offences of criminal association, terrorist organisation, terrorism, drug trafficking and trafficking in human beings. All the measures mentioned above may be extended to relatives and other people close to the witness.

5. What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti?

We do not have any specific urgent measures, given that these measures are adopted by the investigating authorities on an ad hoc basis. This excludes the procedure for implementing protection and safety measures, which is separate from the investigation procedure; it is urgent in nature, and the time limit for appeals is halved.

6. What institutions are involved in the protection of witnesses and pentiti and what is their role (e.g. law enforcement agencies, special independent agencies, prosecutor's offices, judicial authorities, etc.)? How does co-operation between the relevant institutions work in practice?

The Public Prosecutor's Office always has the power to apply for the measures provided for; in some cases, the parties or the judge may apply for such measures, depending on the stage in the proceedings.

Where special safety and protection programmes are implemented, there is a Special Safety Programmes Committee comprising two members appointed by the Ministry of Justice (the Chair and secretary of the Committee), a judge and a public prosecutor, appointed by the Higher Magistrates' Council and the Higher Public Prosecutors' Council respectively, and a fifth member appointed by the Ministry of Internal Administration.

This Committee has the power to adopt, and ensure the effective implementation of, the necessary measures for the proper application of the programmes. Particularly in the preliminary stages of proceedings, there is also considerable involvement of the criminal investigation division of the police, which is responsible for conducting investigations.

7. Are there any specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism? If so, please specify. Are there any specialised counter-terrorism institutions? If so, what is their role in the protection of witnesses and pentiti in relation to acts of terrorism?

Specific, more drastic measures are applied to the offences listed in the reply to question 4. As regards the existence of specialised counter-terrorism institutions, Portuguese law stipulates that investigations into terrorist offences are conducted exclusively by the police's criminal investigation division, which has a central department specialising in counter-terrorism (the DCCB). As far as protection of witnesses (including "pentiti"') is concerned, this department's role is to ensure - in close co-operation with

the Public Prosecutor's Office- that urgent measures are taken to guarantee the safety of the people involved, and to help with the safety programmes implemented. In the past, given that there was no specific legal framework, the department performed this role on a more informal basis while complying with the strict legal rules in force at the time.

8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with the judicial authorities guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.

Measures intended to guarantee human rights and individual freedoms are stipulated in Act 93/99, which includes witness protection measures. In addition to respect for the principles of proportionality and subsidiarity, decisions giving rise to protection measures must guarantee the suspect the opportunity to be heard. As an example, testimony by video-conference must be given in the presence of a judge other than the trial judge.

Likewise, the judge ruling on an application for protection measures cannot be the same judge as gave rulings against the defendant during the judicial investigation stage of the proceedings in question.

Even more protective is the measure prohibiting any conviction based solely on evidence given by persons subject to protection measures. In addition to the statement of reasons, and alongside the obligation to justify any decisions that affect defendants' rights - including those making proceedings subject to special measures - the general rules set out in the Code of Criminal Procedure afford the defence considerable powers of scrutiny during the trial stage (in which the evidence leading to the final decision is produced).

b. Procedural measures

9. At what stage(s) and in what context is it possible for witnesses and pentiti to benefit from procedural measures of protection?

At any stage in the proceedings, provided they have already been registered; as such. Only situations involving police prevention work remain outside the_; trial framework. As already mentioned, these measures may be extended beyond the close of the proceedings.

10. Can witnesses and pentiti obtain legal assistance at this (these); stage(s)?

Yes, although outside the specific legal framework governing witness protection. Our legal order includes a system of general legal aid, which is

applied in specific cases if/when the individuals involved satisfy the necessary requirements.

11. Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, video-conference, disguise, exclusion of the defendant from the courtroom when the witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under which conditions these methods are used.

Yes, those mentioned above. Total (in cases involving the most serious (offences mentioned in the reply to question 4) or partial concealment of [identity, tele-conferencing and voice and image distortion. These methods [are used in any case in which there is a threat to the giving of full and frank (testimony.

|12. On what grounds and on the basis of which criteria can anonymity be granted? Is there the possibility to obtain legal assistance at this stage?

Whenever there is evidence that the life or person of the witness or of people close to him/her is in danger, or that there is a risk of loss of valuable property belonging to the witness, measures to protect his/her identity may be applied. According to the general rule set out in the Portuguese Criminal Code, such a judgment is subjective, as there is no such thing as typical valid evidence. Even so, insofar as these exceptions restrict the rights of the defence, they must be subsidiary and proportional in nature, and reasons must be given for the decision ordering them. In addition, the evidence warranting such exceptions must be part of the proceedings. Legal aid is governed by the same general rules applicable to all other proceedings.

13. Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions?

As a rule, no. The Portuguese Code of Criminal Procedure stipulates that у evidence given in court is valid. The sole exception to this principle – a situation not contained in the framework governing witness protection - is in case of statements for "future record", which are taken {inter alia) when it is known in advance that a particular witness is to travel abroad. By analogy, however, this measure may be applied to someone under a protection programme who has to be moved before the hearing.

14. Is it possible and, if so, under which conditions to use information provided by pentitr? How is their credibility assessed?

The principle of free assessment of evidence by the courts is the general rule followed. Statements by "pentiti" are analogous to evidence given by witnesses; they are freely assessed, bearing in mind, naturally, the circumstances in which they were made. Wherever possible, the reliability of a witness's evidence must be confirmed by other types of evidence, particularly when it is given in the context of a witness protection programme. Reliability is therefore assessed case by case, given that there are no pre-defined requirements or parameters on which to base this assessment.

15. What opportunities are there for the exercise of the rights of the defence, including the right of the accused to challenge the witness'/pentito's credibility in criminal proceedings (including at the pre-trial stage) and the respect of the "equality of arms" principle?

The stage of proceedings prior to the trial must in all cases include the preliminary investigation, conducted by the Public Prosecutor's Office; where requested, this is followed by the judicial investigation, conducted by the investigating judge, which sets out to validate the decisions of the preliminary investigation. Only at this stage can the accused be confronted with the accusations against him/her; these accusations may be contested and/or the credibility of witnesses, including "pentitr, can be challenged. Given that the judgment is based solely on evidence given in court, equality of arms is thereby guaranteed; witnesses covered by a protection programme may be questioned extensively during the proceedings and confronted with evidence that might contradict their testimony, thereby guaranteeing the adversarial principle.

с Non-procedural measures

16. At what stage(s) and in what context is it possible for witnesses and pentiti to benefit from a protection programme?

In accordance with the Act, protection and safety measures may be implemented on behalf of witnesses only as part of criminal proceedings, bearing in mind that these measures are only legal in the context of a trial.

17. Are witnesses and pentiti able to obtain legal assistance at this (these) stage(s)?

Only in accordance with the general legislation governing legal aid.

18. What is the procedure for admittance to a protection programme? Please specify, in particular, who takes the initiative, the criteria for admittance, the assessment of the relevance of a testimony and how admittance to the programme is formalised.

Notice of situations eligible for protection and safety measures may be given unofficially -the judge may order such measures during the judicial investigation or the trial if he/she deems them necessary - or at the request of the Public Prosecutor's Office, the parties, witnesses or "pentitr. There is no specific procedure for implementing protection and safety measures. The requirements are subjective, and are assessed empirically. As far as the application of special protection and safety measures is concerned, the person(s) protected simply has (have) to undertake to fulfil the stipulated obligations relating to safety, failing which the programme will be terminated. In cases entailing a total concealment of identity, an additional procedure is followed, intended to ensure the rights of the defence: the bar association is asked to appoint a suitable barrister to ensure the rights of the defence in the specific proceedings in question. Such witnesses are then known by an identification code until the close of the proceedings.

19. Please indicate the measures that can be adopted for the protection of witnesses and pentiti (e.g. surveillance of their residence, physical protection, protection of personal records, relocation, change of identity, subsidies, assistance with a job search, relocation of a detainee to another prison or to special units).

All the standard personal safety measures that may be necessary, depending on the threat to witnesses, people close to them and their property.

Portuguese law specifies all the measures mentioned in the question.

20. At what stages in proceedings (pre-trial investigation, during the trial, after the trial) can a protection programme be granted? What is the protection programme's duration? What are the procedures for assessing the degree of danger for the witnesses/pentito and their compliance with the programme obligations? Is to possible to challenge a decision to suspend, revoke or terminate a protection programme?

The measures alluded to in the reply to question 19 apply primarily to safety Programmes of limited duration, which are evaluated every three years by the authority that ordered them. Where a dangerous situation is likely to continue indefinitely, special safety programmes authorise the provision of official documentation including various identity papers, changes in physical appearance, a new home in Portugal or abroad, free transportation to that

new home, creation of the necessary conditions to make it possible to earn a living and a short-term subsistence grant. These measures are extended to relatives and people close to the witness, and must be agreed to before they can be implemented. Since there is no provision for any specific procedure the suspension, revocation or termination of a special safety programme сan always be appealed in accordance with the general statutory requirements.

d. International co-operation

21. What measures (e.g. use of modern telecommunications technology, assistance in relocating protected witnesses, exchange of information between witness protection authorities) have been adopted in the context of mutual legal assistance in order to facilitate international co-operation? How are the financial implications of international co-operation activities dealt with?

There is no provision for any specific measures in this area. Although Portugal has the technical wherewithal to conduct video-conferences with foreign countries, there is no provision for them in the Witness Protection Act.

22. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentiti? If so, please indicate what kind of provisions they include.

No.

23. How can international co-operation in the field of the protection of witnesses and pentiti be improved?

By pooling experience, sharing support structures, possibly providing assistance in obtaining documentation, helping to monitor the fulfilment of obligations by protected persons placed abroad and helping such persons placed abroad and helping such to find jobs.

e. Statistics

24. How many people currently benefit from witness or pentito protection measures/programmes and for how long? How many of them are foreigners? If the measures/programmes can be extended to relatives and other close persons, please indicate how many people are included in this category (and, if possible, specify the relationship with the witness/pentito). Please also provide figures on the different kinds of measures (procedural and non-procedural) adopted and on the number of cases involving international co-operation.

f.proposals and comments

25. Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-PW and, in particular, instruments to be adopted to strengthen the protection of witnesses and pentiti.

The suggestions made in the reply to question 23 call for special attention, liven that we are faced with a threat of a transnational nature. The ever- increasing mobility of criminal networks - terrorist or otherwise - means that he response capacity of protection programmes, including in the area of nobility, must be stepped up. Moreover, bearing in mind that it is the State in which the proceedings are held that has to pay relocation costs, the latter will be huge if it is not possible to make use of existing arrangements in other States. The use of such arrangements does not entail significant additional costs, at least in comparison with the amounts paid by a single country. Supplying documentation to other States is a simple, low-cost measure; where provision is made for it, there are no legal impediments. It becomes very difficult to monitor the implementation of programmes when relocations are involved, and these tasks could be shared with the receiving States. It would also be entirely appropriate for such States to possess in-depth information about those they accept as protected witnesses, and funder what conditions.

---

Дата добавления: 2015-10-16