GENERAL INFORMATION FOR AMCITS ARRESTED IN PORTUGAL

The information below is designed to provide answers to some of the most frequently asked questions
regarding criminal proceedings and defense rights in Portugal. The material is provided for
informational purposes only and is not intended as legal advice, nor does it constitute legal advice.
Whilst we endeavor to keep the information up to date and correct, the Consular Section makes no
representations or warranties of any kind, express or implied about the completeness, accuracy,
reliability, suitability or applicability to individual cases of the information contained here. Any reliance
you place on such material is therefore strictly at your own risk. The Consular Section disclaims any
liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of
the information provided. You should always seek professional legal advice from a lawyer qualified to
practice in the jurisdiction you are in.

1. What are my rights upon arrest in Portugal?

You will be notified of your rights upon arrest. This information will be provided orally and also often in
writing; you will receive it in Portuguese or in another language that you understand.

2. Do I have the right to be informed of the allegations/charges against me?

Yes, prior to any interrogation, you must be informed of the allegations/charges against you in a
language that you understand. Charges will be translated orally into a language you can understand. An
interpreter will be appointed for you, when necessary, in order to facilitate communication, under oath.

3. Do I have a right to a lawyer?

Yes, you do have the right to assistance from a lawyer. Suspects who are arrested by the police should
be given access to a lawyer automatically. You can ask the police to call a lawyer that you know or, if
you do not know one, you can ask the police to call a duty lawyer. Suspects who are not arrested but
who are, for instance, summoned to the police station for an interview, also have a right to a lawyer.
When asked, suspects must expressly state that a lawyer is desired or waive this right. Witnesses also
have the right to be assisted by a lawyer when they are interviewed.

4. Do I have a right to a translator/interpreter?

Yes, you have a right to an interpreter. It is compulsory for the authorities to appoint an interpreter if
you do not understand Portuguese. You must be provided an interpreter as soon as you are made
aware that you are suspected or accused of a criminal offense, until the end of the criminal proceedings,
including during the sentencing and ruling on appeal. The interpreter is provided by the court free of
charge. If you are unhappy with the interpreter who is provided to you, you can ask for a different one.

Interpretation should be available for you to communicate with your legal counsel on matters relating
directly to any questioning or hearing during the proceedings, or to the filing of an appeal. You are
entitled to have a different interpreter for your conversations with your lawyer than the one appointed
for the proceedings. When possible, you should try to find a lawyer who speaks your language.
You are entitled to receive, within a reasonable time period, a written translation of essential
documents, namely: any decision depriving you of your liberty; any charge or indictment; and at a later
stage, the judgment.

5. Do I have to talk to the police or can I remain silent during police interrogation? Will it work against
me if I am silent?

You have the right to remain silent during any interrogation. It is forbidden for the authorities to draw
any negative conclusions from that silence.

It is generally advisable to remain silent if: there is no lawyer present; you do not have a consistent story
(and a strong defense that proves you cannot have committed the offense); or if you have not been able
to view your file to fully understand the accusations against you.

You should always discuss whether or not to remain silent with your lawyer.

6. When will I know about the indictment against me in Portugal?

In general, at the end of the investigation, if you are formally indicted (i.e. it is decided that there is
enough evidence against you and your case will proceed to trial), you will have 20 days in which to
examine the charges against you and if you do not agree with the public prosecutor you have the option
to request the opening of the “Instruction phase”. This is a pre-trial criminal investigation phase,
between the investigation phase and the trial phase.

You will be able to see your case file, which contains all information about the accusations against you,
the evidence available and the investigation thus far, before your hearing. Several weeks or months can
pass between the time when you are charged and your trial providing time to prepare your defense
based on the information contained in the file.

It is important to note that during the initial investigation phase of the proceedings, cases may be
subject to judicial secrecy if authorized by the Judge of Instruction. This means that your lawyer may
have access to the statement you gave to the police, but s/he may only have limited access to the
documents supporting the case against you. Only the prosecutor and the judge will have access to all
the documents supporting the case against you. The judge can look at these documents when s/he
decides whether to keep you in pre-trial detention, or prison, before your trial.

There are also two situations where you will not have access to your file:

1) If there is a risk that you would severely jeopardize the investigation if you were made aware
of the content of the file, i.e. if it would endanger the life, the physical and psychological integrity, or the
freedom of the people participating in the proceedings.

2) If your trial is being fast-tracked under proceedings known as “processo sumário”, you will
only be given access to your file immediately before the court hearing. You are allowed to ask for some
time (up to two weeks) to prepare your defense.
7. How do I find a lawyer in Portugal? What is the role of my lawyer?

In criminal cases, you must be represented by a lawyer. Due to the fact that you are a foreigner and do
not speak Portuguese, a court-appointed lawyer will assist you from the moment that you participate in
any part of criminal proceedings. To assist with your selection of a lawyer, the Consular Section has
prepared a list of attorneys for your consideration.

8. I am unhappy with my lawyer. How can I change lawyers? How can I complain about my lawyer?

A good first step is to speak to your lawyer about your concerns. If that does not resolve the issue, you
can file a complaint about your lawyer and seek to have another lawyer appointed. If you have hired
your lawyer privately, then you are free to change lawyers and select another one. You need to inform
your lawyer that you are selecting another one. Complaints against lawyers can be brought to the
lawyers’ regulatory body in Portugal (Ordem dos Advogados). Note that the court which is hearing your
case is not in a position to hear complaints against your lawyer. If your lawyer was negligent, a separate
civil action can be started against him/her, which will be part of a different legal case. Before making a
complaint, it is advisable to consult another lawyer as legal action is sometimes taken against
complainants for defamation.

9. Will I have to stay in prison until my trial starts? What are the alternatives?

You may have to stay in prison until your trial starts. Although there is a presumption that people
should be given bail (i.e. should be released pending trial), in many cases defendants, particularly when
they are not residents of Portugal, are kept in custody.

You may be held in custody to prevent you from failing to attend your trial (i.e. absconding), tampering
with evidence or interfering with witnesses, committing another offense, or presenting a danger to
others or to yourself.

Note that time served in pre-trial detention will be considered as part of your sentence.

If you are not kept in pre-trial detention, you may have conditions imposed on your freedom. You may
be subject to house arrest with electronic monitoring (i.e. a tag); asked to report to the police station on
a regular basis; prohibited from leaving the country; prohibited from contacting certain people;
prohibited from leaving a certain place; prohibited from being involved in certain activities, etc.

10. How and when can I apply for release while waiting for trial?

If you are in custody or under house arrest, your detention pending trial will be reviewed every three
months. If there are changes in your circumstances between two reviews, your lawyer can make an
application for release. The decision to release you is at the discretion of the court and each application
is considered on its merits. Release pending trial is rarely granted for serious offenses, such as drug
trafficking or serious fraud.

11. How long can I be kept in prison before my trial starts?

The average length of pre-trial detention in Portugal is eight months. Approximately 20 percent of
people in pre-trial detention spend more than one year in prison. Lengthy periods of pre-trial detention
are common in Portugal. The maximum period of detention authorized by law prior to trial is two years
and six months (or three years if there was an appeal to the Constitutional Court or the case has been
suspended due to a prejudicial question submitted to another court), where the case is particularly
complex and involves serious crimes. If a trial decision has not been handed down within this period,
you must be released. Make sure you raise this issue with your lawyer, if no trial date is set for you after
two and a half years.

12. Can I go back to my home country if I have been released pending my trial?

Unless you have been expressly forbidden to do so, you may leave the country while on bail. Please
note that you must inform the court of any changes to your address in writing and by registered mail. If
you do not inform the court of your new address, the court may validly serve you with all documents at
your previous address and you may be validly tried in your absence.

13. What will happen if I breach the conditions of my release?

More restrictive measures, including in certain cases imprisonment, may be applied.

14. Do I need a lawyer to apply for release? Yes

15. How long before my case goes to trial in Portugal?

It generally takes six to 18 months for a case to be brought to trial. There are deadlines for concluding
the investigation, which go up to one year after the moment in which you were declared a suspect.
Remember that you cannot be kept in pre-trial detention for more than two and half years (in most
serious cases only, or three years if there was an appeal to the Constitutional Court or the case has been
suspended due to a prejudicial question submitted to another court), even if it takes longer for your
case to go to trial. If you are still in detention after the maximum period of pre-trial detention and no
date has yet been set for your trial, make sure you remind your lawyer that s/he should challenge your
detention. If such a deadline has elapsed, you may also present a petition of habeas corpus to the
Supreme Court directly. You do not need a lawyer to sign this petition.

16. There are always delays with my case, does that mean my lawyer is doing a bad job?

Delays may occur and this is not necessarily the fault of your lawyer. The police or prosecution agencies
may need additional time to collect evidence and locate witnesses, as may the defense team. You
should expect further delays during the legal recess, or holiday, (July 15 to August 31), when only urgent
cases are heard.

17. Can I plead guilty in Portugal? What are the consequences of pleading guilty?

There is no system of plea bargain in Portugal, which means that you cannot make a deal with the
prosecutor and offer to confess your guilt in exchange for a lesser sentence.
18. What happens at trial in Portugal?

In general, trials are public. Defendants have the right to be present at their trial and to consult with a
lawyer. Defendants’ lawyers have the right to confront and question witnesses, present evidence on
behalf of the defendants and have access to government-held evidence.

19. Is there a jury?

Jury trials are rare in criminal cases. When the crime in question is punishable by a prison sentence with
a maximum limit of more than eight years, the public prosecutor, the victim, or the defendant may
request a jury trial. Juries consist of three judges (juizes de direito) and four jurors (jurados), who are
Portuguese nationals, aged 18-65, and who are registered voters. There are no jury trials for terrorism
or serious organized crime cases.

20. Can my lawyer call and cross-examine witnesses?

Yes, your lawyer can call witnesses. S/he can also cross-examine the witnesses and present evidence on
your behalf.

21. Will the written evidence be translated for me?

The submission of evidence is acceptable only in the Portuguese language. There is no right to have the
evidence translated into your language. You can, however, make an application to the court if you need
very important evidence to be translated. The decision is at the discretion of the court, but if the court
accepts, you will not have to pay for it.

22. Why is the victim taking part in the trial?

Victims are often called as witnesses. If the alleged offense has caused damages to the victim, the
criminal court can order damages to be paid to the victim without the need for a separate legal case in
the civil courts. For this reason, victims often decide to take an active (although limited) part in the trial,
but they have no obligation to do so. Victims may also have an active role in the criminal case, and they
are allowed to call witnesses, examine and cross-examine witnesses and appeal against decisions,
independent of the Public Prosecutor.

23. Will I be informed of the decision of the court on the day of the trial?

This only happens in fast track trials.

24. Can I receive a copy of the judgment in my native tongue?

You have a right to receive, in reasonable time, a translation of the judgment.

25. I was tried in my absence and was not informed of this, what can I do?

There are two kinds of trials in absentia, which are trials that take place in the absence of the accused.
If you have never been interrogated and have not signed a statement of identity and residence, you
cannot be tried in your absence. You will nevertheless be declared absent (contumaz) and the
proceedings will be suspended until you present yourself in court. Arrest warrants and extradition
requests may be issued in these cases.

If you have signed a statement of identity and residence you will be summoned by regular mail, without
proof of receipt, to the address you gave on the statement of identity and residence. If you do not
appear in court you may be tried in your absence. Even if you have been tried in your absence, you
must be notified of the judgment.

After the notification of the judgment you may appeal the decision. If you were not aware of your trial,
ask your lawyer to verify whether your trial in absentia was conducted according to regulations.

26. I am not happy with the decision, can I appeal against it? How do I appeal in Portugal?

Yes, you can appeal against either your conviction or your sentence. The appeal must be submitted by
your lawyer. In general you must lodge your appeal within 30 days. After 30 days, your sentence will
become final.

27. Do I need to pay my lawyer more money if there is an appeal?

You should always discuss the estimated of the costs of an appeal with your lawyer as appeals are
usually not included in the fees you have already agreed to pay.

28. What is the time frame for the appeal to take place?

Appeals are usually heard by the court of appeals within three to 18 months. It will depend on several
factors, including the complexity of the case, whether or not you are in pre-trial detention, or the
workload of the courts.

29. Could things get worse during the appeal? If I am acquitted, can the prosecution appeal?

If the appeal was lodged only by you, the outcome cannot get worse.

If the appeal has been lodged by the victim or the prosecutor against you, the outcome can be worse.

The public prosecutor may appeal if s/he considers that the conviction is too lenient or if s/he does not
agree with an acquittal. The victim may also appeal an acquittal.

30. Can I get my sentence reduced in Portugal?

There is no reduction of sentence under the Portuguese judicial system, but you can get an early
release. Early release is generally discretionary and is not an entitlement. It is decided entirely by the
parole judge (juiz do tribunal de execução de penas), who presides over the local committee reviewing
prison sentences, on the basis of information supplied by the prison authorities.
After your conviction becomes final, you will receive a notification from court (liquidação da pena) with
the calculation of your prison time, including the dates relevant for early release.

You may be considered for early release once you have served half of your sentence or, if not granted at
this point, after you have completed two thirds. In practice, those convicted of serious crimes are
unlikely to be released at the first request for a release pending trial, whenever this may be.

For those sentenced to more than six years imprisonment, there will always be early release after
completing five-sixths of the sentence.

The time served in pre-trial detention will be considered as part of your sentence. If you were in pre-
trial detention in another case, and you were subsequently acquitted, that time will also be discounted
in your sentence. You should inform your lawyer if you have been in such a situation.

31. What would help me get an early release?

Your prison social worker will draw up a report on your behavior for the parole judge to consider when
you become eligible for early release. Factors such as good behavior, involvement in education,
evidence of somewhere to live, a job to go to if release is granted, or ill health (generally terminal stages
of a serious and incurable disease) are taken into account. You may find it useful to take Portuguese
language lessons, if available, to increase your chances of working in prison and to help you to better
understand what is happening around you. You can ask your lawyer to draft requests for early release.

32. I have been sentenced to pay a fine. What will happen if I don’t pay it?

Unless you prove that you did not pay because you have absolutely no financial means to do so, you will
have to serve a prison sentence instead.

33. Can I go back to my home country to serve my sentence?

You can apply for a transfer. Portugal and the United States are signatory countries of the 1983 Council
of Europe (COE) Convention of the Transfer of Sentenced Persons (also referred to in Europe as the
‘Strasbourg Convention’. This Convention sets up a method for participating states to transfer prisoners
to their home country for the remainder of their sentence.

The proper channel to initiate a transfer request under the Strasbourg Convention is through the
Prison’s Warden. However, the Convention includes several conditions that must be met before a
transfer is considered:

1. The person to be transferred must be a national of the receiving state. This means that only U.S.
citizens can be transferred to the United States. Proof of U.S. citizenship will be required.
2. The prisoner, the U.S government, and the Portuguese Government must all agree to the
transfer. No one can be transferred involuntarily.
3. The decision to transfer a prisoner is a discretionary decision to be made by each country.
 4. The offense for which the person was sentenced must be punishable as an offense in the
receiving state.
5. The judgment must be final. This means that all court proceedings and appeals must be
completed before a transfer can be considered. Fines and court costs related to the prisoner’s
sentence must be settled at the time of the transfer request.
6. Should the prisoner’s request for transfer be approved by the United States and Portugal,
arrangements will be made between the two governments for the prisoner’s transfer to be
carried out at a time mutually agreeable by both governments.
7. Authorities in the sentencing state will reply to the Department of Justice formally conveying
consent to the transfer, forwarding a copy of the prisoner’s consent form, providing any further
information which the Department of Justice may have requested and indicating the officer
within the Prison Department with whom the Department of Justice should correspond about
the detailed arrangements for the transfer.
8. U.S. Law (19 U.S.C. 4108) requires that a prisoner transferring into the United States give his
consent before being transferred. This is done at a verification of consent hearing shortly prior
to the transfer date. This hearing will be conducted by a Verifying Officer appointed by a U.S.
Court. Once consent to transfer is given by the prisoner at the hearing, it is irrevocable.
9. Prisoners have the right to have counsel at the above proceeding. If they cannot afford an
attorney, they may request that they be represented by a U.S. public defender. The U.S. public
defender would travel to Portugal and discuss with each eligible prisoner the effects of
transferring.
10. If at any stage the prisoner or the United States or authority of the sentencing state decides that
consent to transfer will not be given, the other parties will be informed and consideration of the
possibility of transfer will cease.
11. Once in the United States, the prisoner is placed in the custody of the Bureau of Prisons and is
placed in a U.S. Federal prison. There is no guarantee that a prisoner will be transferred to his
or her home state.
12. A prisoner cannot appeal his foreign conviction to U.S. courts after transferring under the
convention.

A prisoner who is interested in transferring should contact the Defender Services Division of the
Administrative Office of the U.S. Courts to obtain advice as to whether a transfer would be an
appropriate option for the prisoner. Some prisoners decide not to apply for transfer after consulting
with the federal public defender (FPD) and learning that they will spend less time in custody if they
remain in the foreign country than if they transfer to the United States and have their sentence
administered according to United States sentencing provisions.

If you have questions concerning how your sentence will be administered in the United States, you
should write to:

Chief, Defender Services Division

Administrative Office of the United States Courts
Washington, D.C. 20544
Attn: Prisoner Transfer Treaty Matters page 38 of 42

In your letter, you should clearly state that you are seeking advice about an international prisoner
transfer and should provide the following information to allow the FPD to give the best advice possible:

1. Full name and any aliases;

2. Date and place of birth;
3. Date of the offense and date of arrest;
4. Precise offense of conviction, including any known statutory cites;
5. Sentence imposed, including any fines or restitution;
6. Any projected dates through parole or other form of early release;
7. Any labor credits or other prison credits that may be earned;
8. A detailed description of the offense that includes the foreign government's version of the
offense. This description should include whether a weapon was used or present when the
offense was committed. If a drug offense is involved, the offense description should include the
type of drugs involved and the quantity;
9. A description of your role in the offense in relation to others who may have participated in the
offense;
10. Whether you cooperated, provided any confession or took any other action showing that you
accepted responsibility for your unlawful conduct;
11. An accurate description of any prior misdemeanor or felony record in the United States,
including prior sentences, whether you were under criminal justice supervision (probation,
parole or supervised) at the time of the offense and whether any outstanding warrants exist
against you; and
12. An accurate mailing address where you can be reached.

Upon receiving this information, the Defender Service Division will assign the matter to a FPD for review
and response. If the prisoner has provided all of the information listed above, the FPD should be able to
give the prisoner a reasonably informed estimate of how the foreign sentence will be administered in
the United States should the prisoner be transferred there. Once the case is assigned, it usually takes
four to eight weeks for the FPD to respond to the prisoner with advice about the likely manner in which
the sentence will be administered.

34. Can I be expelled instead of serving my sentence?

Yes, but only after you have served half of your sentence for sentences up to 5 years imprisonment or
two thirds of your sentence for sentences over 5 years imprisonment. In certain cases, expulsion could
take place at one third of the sentence for sentences up to 5 years imprisonment, if the defendant
serves the remainder of the sentence in his country or after serving half of the sentence for sentences
over 5 years imprisonment.

35. Is there a risk that I will be deported after serving my sentence?

Yes, if the judgment also made an expulsion order, or if you do not have a valid residence permit.