Decision of Unification of Jurisprudence N^º. 8/2017

SÉRVULO PUBLICATIONS 09 Mar 2018

The Portuguese Supreme Court issued a ruling establishing the following: «[s]tatements for future memory made pursuant to article 271 of the Portuguese Code of Criminal Procedure (“PCCP”) do not have to be read in the trial hearing to be taken into account and constitute valid evidence, to be used by the court to form its opinion, under articles 355 and 356(2)(a) of said Code».

 Typically, only evidence produced or examined during the trial hearing may be resorted to by the court so as to form its opinion – vide article 355(1) of the Portuguese Code of Criminal Procedure (“PCCP”). Notwithstanding, the principle of immediacy has exceptions, notably, allowing for the reading, hearing and display of evidence contained in procedural acts, as is the case of statements for future memory, provided in article 271 of PCCP – according to articles 355(2) and 356 of PCCP.

 The issue tackled in this decision, which is subject to divergent interpretation by the courts, concerns knowing if it is compulsory to read the statements (for future memory), during trial hearing, in order for them to be considered by the court in its assessment of the evidence.

 Purporting the view that it is mandatory, the majority of legal doctrine and case-law of the Courts of Appeal (“Tribunais da Relação”) argues that the reading «aims to replace the absence of the declaring person, and, thus, constitutes a requirement stemming from the principles of immediacy, orality, audi alteram partem and publicity.»

 On the other end of the spectrum, the vast majority of the Supreme Court and Constitutional Court defend that said reading is not compulsory so long as the statements «have been provided in accordance with the adversarial structure of the process and the principle audi alteram partem»

 The decision of unification of jurisprudence, with four dissenting opinions, decided that the reading of the statements is not obligatory, on the following grounds:

• From the combined literal interpretation of the aforementioned rules does not derive, neither explicitly nor implicitly, that the reading is compulsory; as thus, it would be a paradox to link the validity of said evidence to its reading in the trial hearing;
• Statements for future memory are made before the investigating judge (“juiz de instrução”), before the lawyer of the accused and the Prosecutor, hence allowing for a direct contact with the source of evidence and an oral debate between the latter and the former;
• On the one hand, it is true that there is no immediacy between the declaring person and the trial judge on the act where the declarations are made; but on the other, the court, in order to form its opinion, must resort to the hearing/display of the statements so as to, together with the other evidence, assess it;
• The regime for personal evidence provided in anticipation amounts to an exception to the principle of immediacy, given the risk of loss of evidence; notwithstanding, said principle is not jeopardised by the reading of statements during the trial hearing, considering that it does not grant the trial judge with the contact of the declaring person;
• Moreover, the principle audi alteram partem is also not jeopardised, for the defendant is given every possibility to argue, contradict and assess said statements, notably, during examinations and the trial hearing.

 The dissenting opinions clearly show that the abovementioned decision is anything but uncontencious; hence, it may pose application difficulties to the courts, to the extent that it can be interpreted in conflicting terms vis a vis the criminal procedural regime provided on this issue.