Portuguese law - the 'arguido' status

Mediabeak would like to thank an anonymous comment contributor on our previous post about the McCanns.

Given the frustration at the lack of new news coming out of the Madeleine McCann investigation it was easy to point the finger at the much maligned investigation and secrecy laws which bind it. While it would not be unfair to say that there were certain shortcomings in the early stages of the investigation, these were perhaps added to and distorted by mistaken understanding of the Portuguese 'arguido' suspect status and secrecy surrounding investigations. We are used to the way contempt laws work in the UK or the way they have minimal meaning in other jurisdictions. While the UK contempt laws seek to secure the administration of justice and its - and those concerned (jury, witnesses, public) with it who may be influenced or prejudiced, the Portuguese system focuses heavily on the preceding investigation. In the UK strict liability contempt is engaged when someone is arrested, whereas in Portugal, the 'arguido' status applies to anyone who is made a suspect (arrest not being necessary)or wants to be protected by the system.

Mediabeak thinks its time to contribute some more information about the system we have been quick to criticise. We haven't edited our anonymous friend's submission and are posting their contribution below:

The arguido status

In Portuguese law a person is constitued as an arguido when she or he is suspected of having committed a crime.

A person can request to be made "arguida" because he or she will benefit from rights that he/she does not have as a witness. Apart of the obligation of being accompanied by a lawyer when giving depositions in front of police authorities, the arguido has the right to remain silent and not reply to any questions. This means that as a potential suspect he or she is acting in their own defence. A witness by law is obliged to reply to all questions.

A person is constituted arguido during the investigation phase when sufficient evidence is collected to formulate an accusation. At that time, the less serious of the coercive sanctions which is the "term of identity and residence" is applied to the arguido. This term can be translated as a kind of conditional liberty where the arguido is obliged to inform the police authorities whenever he/she is absent for more than 5 days. An arguido can also be submitted to other coercion measures, the most severe being the "preventive arrest", which is usually applied when there is the danger of escape, disturbance of the investigation, possibility of destroying evidence, etc.

Secrecy of justice

The notion of secrecy of justice means a special jurisdiction obligation that applies to any person with direct knowledge of an act or document of the penal procedure. That person must comply to that secrecy, meaning he/she is forbidden to talk or reveal the content of that act or document.

The secrecy of the inquiry or investigation aims to satisfy the functionality of the juridical machine in the preliminary phases of the process. The arguido cannot be granted access to clues and evidence collected during the investigation since there might be over-riding interests such as: national security, witnesses protection, efficacy of the investigation and the obtaining of evidence.

The aim of the secrecy of justice is to ensure the secrecy of the criminal procedure, and allows also the guarantee that justice is made in an independent and unbiased way without the interference of other sovereign organs. Interference is also prevented from pressure groups or persons with personal (or institutional) power able to spread erroneous information campaigns through the media, harming the discovery and preservation of evidence and thus hindering the conclusions of the penal procedure.

Mediabeak thanks 'anonymous' for this submission.