raditionally, the right to legal advice is considered in two aspects. On one hand, it is seen by the CPT as a tool for the prevention of torture and other form of ill-treatment during the police detention. On the other one, it is prescribed by the Article 6 of the European Convention of Human Rights.
Today, we have an excellent opportunity to talk to Vânia Costa Ramos who is one of the most prominent criminal lawyers not only in Portugal but also in other European countries.
Vânia Costa Ramos combines her legal practice with academic work. She is a researcher at the Law Faculty of the University of Lisbon in the field of criminal law and criminal procedure.
So, let us talk a bit about some aspects of the role of a lawyer in criminal justice process in Portugal.
D.Y.: What is the general legal framework of the right to counsel in Portugal?
V.C.R.: The right to counsel1 is a well-established right in the Portuguese legal system that enjoys constitutional status in the democratic 1976 Constitution. Article 20 Portuguese Constitution (PConst), inspired by Art. 6 of the European Convention on Human Rights (ECHR), lays down the right to a fair trial, to a legal remedy and to legal assistance, under the title “access to law and to effective judicial protection”.
The right to legal assistance is guaranteed in §2 of this constitutional provision which states that “[s]ubject to the terms of the law, everyone has the right to legal information and advice, to legal counsel and to be accompanied by a lawyer before any authority”.
Consequently, every person has a right to legal assistance before any authority, which evidently encompasses authorities conducting or assisting in criminal proceedings, irrespective of their status (defendant, witness, expert). Within criminal proceedings, the right of the accused to legal assistance is moreover explicitly recognised in Article 32§3 PConst.
The role of the lawyers is constitutionally recognised as essential to the administration of justice. Art. 208 PConst, added in 1997, states that “[t]he law shall ensure that lawyers enjoy the immunities needed to exercise their mandates and shall regulate legal representation as an element that is essential to the administration of justice”. This fundamental provision is a source for the legal protection of the privileges and immunities applicable to lawyers discharging their professional duties.
The Law on Organization of the Judiciary and the Law on the Portuguese Law Bar Association implement the constitutional mandate. Lawyers may not be prevented from exercising their role and enjoy all privileges and immunities needed to do it in an unbiased, independent and responsible manner, namely those of: (1) protection of professional secrecy (attorney-client privilege); (2) the right to exercise legal assistance freely and not to be sanctioned for the exercise of any acts in conformity with the professional rules; (3) the right to special protection of the communications with the client and to the protection of secrecy of any documents concerning the exercise of the rights of defence (attorney-client privilege); (4) the right to special regulations concerning sealing, listing and searches conducted in their professional premises, as well as concerning seizure of documents.
Except for criminal prosecution against the defence lawyer herself, the attorney-client privilege concerning the defence counsel in criminal proceedings is, in principle, almost absolute – there are very limited exceptions to the confidentiality of communications between defence lawyer and client. At most, there may be extreme and exceptional situations in which the proportional breach of such a duty may be justified or excused by a state of necessity.
D.Y.: What is about the right to counsel for witnesses?
V.C.R.: The Code of Criminal Procedure (CCP) reflects these constitutional provisions. In what concerns witnesses, Article 132(4) CCP states that witnesses may have the assistance of a lawyer when questioned. The lawyer’s role is limited to advising the witness on her rights without interfering in the questioning (e.g. the lawyer may advise the witness: not to answer a certain question, if that would incriminate the witness; on the exercise of testimonial privilege; on requesting to be declared an accused, etc.).
The defence lawyer of an accused may not represent a witness in the proceedings (Art. 132(5) CCP).
Although there is no provision for the information about this right, courts and prosecution services often include the information about the right to legal assistance in the witnesses’ summons.
D.Y.: Does the Portuguese law have differences in the right to counsel for the suspect and accused?
V.C.R.: The CCP distinguishes between the “suspect” (suspeito) and the “accused” (arguido).
A “suspect” is defined by Art. 1(e) CCP as a “person related to whom there is evidence that she has committed or is preparing to commit a criminal offence or took part in that commitment or is preparing to take part in it”.
Although the CCP does not contain a definition of “accused”, its definition may be discovered by examining the provisions underlying the status of the accused, i.e. his/her rights and duties within the criminal proceedings, and the requirements for the formal acquisition of that status.
As for suspects, the right to counsel applies in the same terms as for witnesses. It should be highlighted that, if during the questioning of or the request for information from a person a well-founded suspicion of the commission of a crime arises, this person must be immediately and necessarily placed formally as an accused, as outlined below.
The accused has a full right to legal assistance from the moment s/he is declared as such. Currently, the accused also receives oral and written information about her right to counsel and a “letter of rights and duties” (termo de constituição de arguido).
At the latest, the declaration of a person as formally accused must be communicated when an indictment is made. However, this is the exception rather than the rule – it only happens in practice if the accused has not been located during the investigations, since the CCP states that whenever a criminal investigation against an identifiable person is pending, this person must be interrogated at the latest before the decision on whether to bring an indictment. Therefore, the formal acquisition of the status of accused (constituição de arguido) normally happens before that.
It is mandatory as soon as:
- a person makes statements before any judicial authority or criminal police body during an inquiry started against him/her, where there are reasonable grounds to suspect that such a person has committed a criminal offence;
- a coercive or patrimonial guarantee measure must be imposed on a specific person;
- a suspect is arrested under the terms and for the purposes of Art. 254–261 CCP;
- a police report has been drawn up identifying a person as an alleged offender and such person has been informed of the contents thereof, unless the report is manifestly ill-founded.
Furthermore, the CCP requires that where during an interview with someone other than an accused person a reasonable suspicion that such a person committed a criminal offence arises, the authority conducting the interview shall immediately suspend it and declare that person an accused person. This may also occur upon request of such a person whenever investigations for purposes of confirming a suspicion are conducted that personally affect him/her.
For these purposes, as stated above, it is important that a witness may be assisted by counsel. The violation of the provisions on the formal acquisition of the status of suspect triggers the application of an exclusionary rule (normally referred to as a “prohibition of valuation of the evidence”) concerning, at the very least, the statements made by that person (as well as any secondary evidence causally linked thereto).
Once a defence lawyer has been instructed, or appointed by the state, s/he will remain active throughout criminal proceedings, unless replaced by another defence lawyer.
The combination of these rules and the rules on mandatory legal assistance, which will be outlined below, mean that normally a person who is formally an accused not only has the right to assistance of counsel but is de facto assisted by counsel when arrested and before any interrogation.
The practical execution of this right is, however, not always ideal, since the defence lawyer will often, sometimes due to lack of experience or due to the inadequate remuneration of the fees paid for urgent assistance in the legal aid scheme, but also when it comes to privately instructed lawyers, not visit the person in detention, but only meet her shortly before the interview takes place.
This happens because authorities usually only appoint a defence lawyer now when the accused requests it, typically before the interview starts and not at the outset of detention. This is the reason why we believe that there should be a defence lawyer in prison establishments, premises of the judicial police and other police stations.
Although the person has a right to ask for a defence lawyer at any time, s/he does not always ask for one and the authorities will only appoint one ex officio before the interview, if the person does not instruct a defence lawyer privately, since mandatory assistance only applies “at the interviews of detained persons”. In this framework, the role of the defence lawyer as a safeguard to the prevention of ill-treatment is weakened, as it should imply the presence of the lawyer since detention and not just at the moment of interrogation.
Also, there might be shortcomings in the preparation of the interview, due to the short time that the defence lawyer has before being summoned for the interview and the start of the latter (the law determines that the person is to be brought before a judge 48 h after detention at the latest).
D.Y. What are mandatory counsel provisions in the light of the Portuguese legislation?
V.C.R.: The Constitution states that the accused has the right to the assistance of counsel of her choice and specifies that the law shall determine in which cases and stages such assistance is mandatory (Art. 32§3 PConst).
Mandatory assistance is based on the acknowledgment that the accused finds him/herself in a vulnerable position, either on procedural or on personal grounds.
Accordingly, the CCP mandates legal assistance in the following situations:
- interrogation of an accused who is deprived of her liberty;
- interrogations conducted by judicial authorities;
- in the pretrial hearing and in the trial hearing;
- in the appeal stages;
- where witness statements that may later be used in court (“statements for future memory”) are gathered;
- in the trial, hearings taking place in the absence of the accused.
In addition to this, due to the “personal vulnerability” of certain persons, the CCP mandates legal assistance in all procedural acts other than the formal declaration as accused (constituição de arguido), whenever the accused person has any visual, hearing or speech impairment or is illiterate, cannot speak or understand the Portuguese language, is under 21 years old, or where doubts concerning her mental capacity to stand trial are raised.
In practice, there are few instances in which the accused is interviewed in criminal proceedings without the assistance of a defence lawyer – mainly where police authorities question the accused without having her arrested and during some evidence gathering acts if the accused speaks Portuguese and is above 21 years of age. Evidently, if the person has not been accused, interviews will mostly take place without the presence of a lawyer.
The same could happen in certain instances of other investigative acts, as outlined below.
The Portuguese regime of mandatory assistance has been challenged at the international level. Until 2006, it had been deemed in line with international law, namely the ECHR.
But in 2006, the United Nations’ Human Rights Committee decided that there had been a violation of Art. 14 paragraph 3 (d) of the International Covenant on Civil and Political Rights since Portuguese criminal proceedings allowed no exceptions to mandatory legal assistance, irrespective of the severity of the charges and the complexity of the case and of the characteristics of the accused. The European Court of Human Rights (has nonetheless recently upheld the conformity of the system with the ECHR.
D.Y. Which privileges and duties does the defence counsel have?
V.C.R.: Art. 208 PConst affirms that legal representation is an essential element of the administration of justice. Consequently, the law ensures that lawyers in Portugal have a set of duties, prerogatives and immunities, which are necessary for the effective and full exercise of their mandate.
Legal requirements imposed on lawyers in Portugal are specifically regulated in the SPBA, which is a binding statutory law. The rules contained in this document apply to all Portuguese lawyers, including criminal defence lawyers. In general terms, Portuguese lawyers must advocate with respect to principles such as honesty, probity, loyalty, honesty, integrity and independence. Among the duties inherent to the profession, professional secrecy and the duty of confidentiality (attorney-client privilege) assume vital significance.
The attorney-client privilege is explicitly regulated in Art. 92 SPBA. In general terms, lawyers have a duty to keep every fact that comes to their knowledge because of professional practice secret.
The scope of the attorney-client privilege encompasses: (1) facts that the client tells the lawyer directly or orders others to transmit to her; (2) facts that have come to the knowledge of the lawyer as a result of a position held in the Portuguese Bar Association; (3) facts relating to professional matters communicated by a lawyer with whom the lawyer is associated or with whom she cooperates; (4) facts communicated by a co-plaintiff, co-defendant or other interested party or its representative; (5) facts which have been brought to the attention of the lawyer by the opposing party or its representatives during negotiations to terminate a dispute; (6) facts which the lawyer has come to know in the course of any failed oral or written negotiations in which she has intervened (Art. 92 SPBA).
Importantly, according to Art. 92(2) SPBA the obligation of the attorney-client privilege exists irrespective of the service requested or committed to the lawyer involving judicial or extrajudicial representation, remuneration, or whether the lawyer has or has not come to accept and perform the representation or service, the same applying to all lawyers who, directly or indirectly, have any intervention in the service.
Furthermore, professional secrecy also includes documents, letters or other objects, which relate, directly or indirectly, to the facts subject to secrecy.
Nonetheless, although unquestionably fundamental and essential for the exercise of legal assistance, professional secrecy or the duty of confidentiality or the attorney-client privilege are not of absolute value and could be balanced with other competing legal interests colliding in certain highly limited cases.
D.Y. How does the law solve the problem of the conflict between the lawyer’s duties and truth seeking?
V.C.R.: Portuguese lawyers have a set of duties towards the community and towards the Portuguese Bar Association.
Among the latter, the regime of impediments and incompatibilities assumes distinctive significance, as it is intimately connected with the principle of independence, which is a cornerstone of the profession. According to the principle of independence, Portuguese lawyers should act free from pressures of any nature, especially those arising from individual interests or external influence, while abstaining from neglecting professional deontology with the purpose of favouring the client, colleagues, courts or third parties.
Among the duties of lawyers towards the community, the defence of the good administration of justice is paramount.
Portuguese lawyers should therefore not advocate against the law, use unlawful means or contrivances, unnecessarily delay, or stall proceedings or pose obstacles to the correct application of the law and the ascertainment of the truth.
Mutual trust between the lawyer and the client is also an essential value guiding the legal profession. If there is no agreement between lawyer and client about the strategy to follow in a case, then there is no mutual trust, and the lawyer should stop representing the client while ensuring that she can find another lawyer in a timely manner. Therefore, in principle, the lawyer will not express an opinion different from that of the client in court.
Yet, the duties towards the client do not override or exclude the application of the law. According to Art. 97(2) SPBA, the lawyer has the duty to act in a way that defends the legitimate interests of the client, while abiding by the applicable legal and deontology rules.
In any event, the duty of the lawyer not to act unlawfully or hinder the administration of justice does not oblige the lawyer, especially when acting as defence counsel, to aid in truth-seeking.
In criminal cases, the accused never speaks under oath and is not liable to commit perjury. In fact, there was a scholarly dispute on whether the accused had a right to lie, and it seems that presently it is accepted that the accused does have such a right to hinder truth seeking.
If the accused would, however, seek the lawyer’s help to prevent truth-seeking by hiding relevant evidence, for example asking the lawyer to hide the murder weapon or handing over other relevant, material physical evidence to the lawyer, the lawyer’s duty, in our view, is to refuse to receive such evidence.
This is clear concerning the murder weapon or other material physical evidence. The situation might be more complex concerning documents, since it is not always clear whether documents are evidence of an offence or not. Furthermore, the client might have provided documents to her lawyer in order for the latter to analyse their content and to advise her regarding possible criminal liability or as supporting documents to the explanations given to the lawyer about possible criminal suspicion. In those cases, the lawyer should keep the documents and make sure that they are not destroyed or return the documents to the client after having analysed them. We believe that destruction of evidence by the lawyer, or aiding with such a purpose, is not acceptable from the deontological perspective, and could make the lawyer criminally liable.
There is no duty for the lawyer to report any evidence s/he becomes aware of or where evidence is located if the client has revealed it to the lawyer. The only situation where there might be obligations for the lawyer to act would be if the information given by the client reveals that there are persons at life risk, or there is a risk of severe bodily harm or serious infringements of their liberty.
In such cases, the lawyer should find a way to balance the two competing legal interests – protection of life or essential physical integrity or liberty and protection of legal privilege – and preferably find a way to report the whereabouts of the victim without disclosing from where or whom the evidence came from, for example by reporting it to the Dean of the Portuguese Bar Association who would then in turn report it to the authorities. In such cases, should that evidence lead to a discovery of evidence against the lawyer’s client, it could be disputed whether the evidence acquired could be used whether mutual trust is still in place and, if not, remove herself from the case.
D.Y. Please let me thank sincerely for this profound inside at the role of the lawyer in Portugal, dear Vania.