Tradução e disponibilização de Códigos: metodologias e problemas práticos Teresa Lourenço 27.05.2014 A nossa noção de arguido Suspeito contra o qual já corre um processo e que foi constituído como tal, com estatuto próprio e com direitos e deveres diferentes dos que recaem sobre os meros suspeitos e sobre outros participantes processuais. Constituição de arguido O Quando lhe deva ser aplicada medida de coacção ou de garantia patrimonial; O Quando for detido, quer em flagrante delito, quer para primeiro interrogatório ou para aplicação ou execução de uma medida de coacção ou para ser apresentado perante a autoridade judiciária em acto processual; O Quando for levantado auto de notícia que o dê como agente de um crime e aquele lhe for comunicado; O Quando, sendo testemunha e estando a prestar depoimento surgir fundada suspeita de crime por ela cometido. Direitos e Deveres do arguido O Estar presente nos actos processuais que lhe dizem directamente respeito Comparecer perante o O Ser ouvido pelo tribunal ou juiz de instrução juiz, M.P. ou órgãos de sempre que estes devam tomar decisão que pessoalmente o afecte; polícia criminal sempre que a lei o exigir e para O Ser informado dos factos que lhe são tal tiver sido devidamente imputados antes de prestar declarações; convocado; O Não responder a perguntas feitas sobre os factos que lhe forem imputados; Responder com verdade O Constituir advogado ou solicitar a nomeação às perguntas feitas por de defensor; entidade competente O Ser assistido por defensor em todos os actos sobre a sua identidade; processuais em que participar e, quando Prestar TIR logo que detido, comunicar, mesmo em privado, com assuma a qualidade de ele; arguido; O Intervir no inquérito e na instrução, oferecendo Sujeitar-se a diligências provas e requerendo as diligências que julgar de prova e a medidas de necessárias; coacção e garantia O Ser informado dos direitos que lhe assistem; patrimonial O Recorrer das decisões que lhe forem desfavoráveis. Your rights at the police station Your rights if you’re arrested Get free, independent and private If the police suspect you of legal advice; being involved in a crime they can arrest you, but while you’re Have somebody named by you under arrest and in police informed of your arrest; custody, you have a number of rights. Have medical help if feeling ill; Your rights on arrest See the rules the police must follow The police have a legal (Codes of Practice); obligation to advise the person See a written statement of your (called a ‘suspect’) that they are under arrest. rights The police should explain to the Your rights when being questioned suspect why they are being The police may question you about the arrested. crime you’re suspected of. They must read the police caution to the suspect – which You don’t have to answer the advises them of their right to questions but there could be remain silent. consequences if you don’t; The Police must explain this to you by reading you the police caution. Releasing the detainee O If it appears that the detainee should never have been arrested in the first place, the police will order his immediate release. O Otherwise, the question is whether there is already enough evidence to charge him with an offence. O Release from the police station may be conditional or unconditional. O The police can release the detainee if there is not enought evidence to charge him. He does not have to pay to be released, but he shall have to return to the police station for further questioning when asked. O If there are conditions attached to the release, those may be one or more of the following: Residing at a specific address; Reporting to a local police station; Staying inside the house at certain hours of the day; Not contacting certain people or going to certain places; Providing a surety (a sum of money that shall be lost should he fail to attend court); He may also be told to surrender his passport. Detention without charge O The police cannot generally hold a suspect in custody for more than 24 hours without charge. O They can apply to hold him for up to 36 or 96 hours if the detainee is suspected of a serious crime, eg murder (a magistrates’ court has to issue a warrant of further detention). O However, suspects arrested on suspicion of committing terrorist offences can be held up to a maximum of 14 days. Being charged with a crime O If the detainee is charged with a criminal offence, he must be given a charge sheet. This sets out the details of the criminal offence he is being charged with. O Once the detainee is charged with a criminal offence, the police are required to release him on bail unless one of the following applies: The police have doubts about your address; The accused needs to be detained for his own or someone else’s protection; There are concerns that he will fail to attend court or interfere with the administration of justice. Once the detainee or other suspect is charged, it is more appropriate to refer to him as the ‘accused’. Terminology Arrest: someone suspected of an offence is lawfully detained by a constable Suspect: a person being investigated in relation to a particular offence or offences. A person who is not yet the subject of formal proceedings Defendant: A person who has been charged or summonsed. Accused: A person charged with breaking the law. The term defendant is not used in Scotland. The Guardian, 7 September BBC News, 2007-09-07 2007 Suspects and Portuguese Law What is an arguido? People given arguido/a status are officially treated An “arguido” – normally translated as “named as a suspect in a crime. (…) suspect” or “formal suspect” – is someone who is The moment he is constituted as arguido, then he treated by Portuguese police as more than a witness (…) can not only refuse to answer questions because Under Portuguese law, a person declared an they can incriminate him, but also he has the right “arguido” has legal protection that is not to be accompanied in the questionings by his own extended to a witness, including the right to solicitor. remain silent during questioning and the right to legal representation (…) Once someone is an arguido they can be arrested, It is not uncommon for people caught up in but only if there is sufficient evidence. criminal investigations in Portugal to declare The police can use their powers to bring the themselves “arguidos” in order to receive more suspect before a judge to ask for restrictions to be legal protection, particularly if they feel the line of questioning implies they are a suspect. imposed on their movements. If they do so, they could be banned from leaving Channel 4 News, updated on their house or the area, or held in custody while 08 September 2007 the case continues. What is an ‘arguido’? In this case, the suspect (…) has signed an Arguido refers to someone of interest to the identity and residence statement. inquiry. While there is no direct equivalent in UK law, it has become shorthand for ‘formal It prevents the person moving house or leaving the suspect’. country. If they stay anywhere other than their As an arguido, the person connected to the case given place of residence for more than five days is granted certain legal rights under Portuguese they have to notify police. law. These include the right to remain silent during questioning and the right to legal representation. Suspect: a person who is E.U.A. believed to by criminal Suspect: a known person justice officials to be one suspected of a crime. who may have committed a Police in the early 21st specific crime, but who has century began to use not been arrested or person of interest, possible formally charged. Once suspect and even possible person of interest to mean arrested a suspect is called suspect. a defendant. Under the judicial systems Accused: a person who has of the U.S., once a decision been subjected to actual is approved to arrest a suspect, or bind him over restraints on liberty through for trial, the suspect can be an arrest or a person properly called a defendant, against whom a formal or the accused. indictment or information has been returned Canadá “accused” includes (a) a person to whom a peace officer has issued an appearance notice under section 496, and (b) a person arrested for a criminal offence Italian Code of Criminal Swiss Criminal Procedure Procedure Code The moment the suspect For the purposes of this has been arrested (…) Code, the accused is a Once the defendant has person suspected, been committed for trial. accused of or charged Procedural rights of the with an offence. suspect or defendant. French Code of Criminal German Code of Criminal Procedure Procedure The person held in If the accused cannot be custody/detainee/person brought before the concerned The decision indicting him competent judge at the is served on the accused. latest on the day after his If the accused, after apprehension… being summoned… Fontes de Pesquisa Códigos de Processo Penal suíço, alemão, francês e italiano. The Code for Crown Prosecutors www.gov.uk www.findlaw.co.uk A Directory of Legal and Criminal Justice Terminology” (www.crimeinfo.org.uk) Emmins on Criminal Procedure by John Sprack http://safe.met.police.uk www.courtroomadvice.co.uk The Guardian – What is an arguido? Channel 4 News - What is an arguido? BBC News – Suspects and Portuguese Law Court Terminology (www.ncdistrictattorney.org) .