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1WEzkEc

1WEzkEc

The legal framework

The legal framework established by the Directive applies to natural persons who are suspected or accused of having committed a criminal offence and it should also apply at all stages of criminal proceedings (until the decision on the final determination on the defendant´s guilt has become definitive) vi . The Directive however does not apply to legal persons. It was considered that “at the current stage […] it is premature to legislate at Union level on the presumption of innocence with regard to legal persons”, and it was stipulated that this right should be ensured “by the existing legislative safeguards and case-­‐law” vii . The presumption of innocence According to this piece of legislation, MS shall ensure that suspects and accused persons are presumed innocent until proven guilty, pursuant to the law (art. 3). Conforming to the Directive, compliance with the principle of the presumption of innocence presupposes: (i) the existence of the right of the suspect or accused of not being referred to as guilty in public statements made by public authorities or through the use of measures of physical restraint, (ii) that the burden of proof for establishing the guilt of suspects and accused persons lies on the prosecution, and lastly (iii) that the accused has the right to remain silent and the right not to incriminate himself/herself. Public references to guilt Article 4 of the Directive states that MS shall take appropriate measures to ensure that public statements made by public authorities or judicial decisions do not refer to suspects or accused persons as being guilty, for as long as guilt has not been proven according to the law. This provision also establishes that, in the event of a breach, MS shall ensure that appropriate measures are available in order to safeguard such right. Given the fact that public authorities are not prevented from publicly disseminating information on criminal proceedings, the Directive limits such dissemination to situations in which it is “strictly necessary for reasons relating to the criminal investigation or to the public interest.” It is important to observe that the Portuguese legal system already enshrines the duty of judges and public prosecutors to refrain from providing biased opinions during the statements made by the accused at trial and the general duty of the authorities involved both at the investigative and trial stage to refrain from giving statements or from making public comments on ongoing cases (the said duty limits public statements or public comments concerning the proceedings to situations which are exceptional and duly authorised). Notwithstanding this, the effective compliance Forum Penal | associação de advogados penalistas (Associação Cultural de Direito Privado sem fins lucrativos | Constituída por Escritura Pública de 30.05.2012) NIPC 510 246 532 Sede: Rua dos Anjos, n.º 79, 1150-035 Lisboa | Email: forum@forumpenal.pt | Telefone: 217 106 160 www.forumpenal.pt 2

with the duties arising from such European norm will most likely lead to legislative adjustments in order to accommodate the explicit prohibition to refer to suspects or accused persons as being guilty, both in the proceedings and in any public statement made by the mentioned authorities. The presentation of accused persons in court or in public In order to avoid that suspects or accused persons are presented as being guilty, the Directive also requires that, prior to the delivery of the final judgment, MS shall take appropriate measures to ensure that they are not presented in public through the use of measures of physical restraint, and to refrain from presenting them in court or in public while wearing prison clothes (Art. 5) viii . The burden of proof The Directive envisages the obligation of MS to ensure that the burden of proof for establishing the guilt of suspects and accused persons lies on the prosecution (art. 6(1)) ix . Pursuant to the text of the Directive, this obligation is compatible with the investigative powers held by the competent court (the judge) which may, on its own motion, seek for both inculpatory and exculpatory evidence x . Additionally, the Directive enshrines the in dubio pro reo principle by setting forth the duty of MS to ensure that “any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted” (art. 6(2)). A closer look at the Portuguese legal framework reveals that it does not embed rules concerning the shift of the burden of proof in criminal proceedings. According to some scholars, there are even doubts as to whether one can talk about the concept of reversal of the burden of proof, in its strict sense, in criminal procedure. In fact, since the Public Prosecutor´s office is statutorily bound by the duty to discover the truth and to promote the Law in an objective and impartial manner, it can be difficult to ascertain that the Public Prosecutor has a conflicting interest with the accused or that the inability to adduce evidence leads to disadvantages for the Public Prosecutor, arising out of the burden of proof. Nevertheless, the Constitutional Court has consistently held that the principle of the presumption of innocence, as laid down in article 32(2) of the Constitution, implies the above-­‐mentioned procedural safeguards, as a result of its content. In other words, on the one hand it involves the “prohibition of the reversal of the burden of proof to the detriment of the accused person” xi . On the other hand, it entails the “in Forum Penal | associação de advogados penalistas (Associação Cultural de Direito Privado sem fins lucrativos | Constituída por Escritura Pública de 30.05.2012) NIPC 510 246 532 Sede: Rua dos Anjos, n.º 79, 1150-035 Lisboa | Email: forum@forumpenal.pt | Telefone: 217 106 160 www.forumpenal.pt 3