Sociedade de Advogados RL
(Responsabilidade Limitada)
Carlos Pinto de Abreu e NIPC
The Rise of
Plea Bargaining, Leniency Agreements & Criminal Settlement in
Civil Law
Is there plea bargaining in the Portuguese Legal System?
If you ask a lawyer about
plea bargaining in Portugal, she will tell you that the concept as
such doesn’t actually exist in the Portuguese legal system – a
system that is founded on the legality principle.
This presumption – the
inexistence of plea bargaining – may nevertheless be out of date.
Indeed, within the last decades, some forms of diversion have been
enshrined in our Criminal Procedure Law. The question is: did they
bring plea bargaining along? Let us take a look at the different
stages of the Portuguese Criminal Procedure and analyze whether plea
bargaining exists in any form.
A – Plea bargaining and
the commencement of criminal proceedings
From the very first
beginning of criminal proceedings, there can be bargaining: the
suspect and public prosecutor/police can bargain on the opening of
proceedings against the former. The Portuguese Code of Criminal
Procedure (1) in its original version stated “the report of a crime
always determines the opening of an investigation”. The opening of
a criminal case was subject to strict legality criteria. Even if a
crime report was totally ill-founded, the public prosecutor/police
would have to open an inquiry and investigate the relevant facts.
The Criminal Procedure
Law reform of 2007 changed this and it now states “subject to the
exceptions that are stated in this Code, the report of a crime always
determines the opening of an investigation”. These exceptions refer
to anonymous ill-founded crime reports and to crimes where the victim
must make the report. Although the Public Prosecutor now has more
freedom relating to ill-founded and anonymous crime reports, he still
cannot refrain from opening an investigation on discretionary grounds
(i.e. low probability of achieving conviction, low interest in
pursuing a certain crime, etc.).
At this stage, the
criminal defense lawyer’s role is usually seen as non- existent. In
spite of that, and although these rules are recent, we dare say that
a criminal lawyer can always try to submit evidence that will reveal
the ill- founded nature of a crime report. This might, however, be
academic, because he/she will only have knowledge of the existence of
a case at the moment when his/her client is called for an interview
and formally declared arguido (suspect).
Is there any room for plea bargaining
at this stage? The answer is "No". All a lawyer can do on
behalf of his/her client is trying to submit evidentiary elements to
reduce the suspicion against him. No bargaining is allowed.
B – Plea bargaining during the
investigative stage
What about during the investigation
stage? Is plea bargaining admissible? What is the role of the
criminal defense lawyer? There are four situations for which the Code
of Criminal Procedure allows the public prosecutor to use diversion
solutions: I. mediation; II. provisional suspension of proceedings ;
III. closure in cases of exemption of
penalty; and IV. processo sumaríssimo (summary or speedy
proceedings).
I. Mediation proceedings
could be described as a bargaining procedure. However, it is a
bargaining procedure between suspect and victim. The public
prosecutor will only approve its result. Moreover there is no plea.
The Criminal Mediation Regime (2) (art. 6, no. 1 and 2) expressly states
that the participants may freely determine the terms of the
agreement, subject to one exception: sanctions which deprive the
suspect from his liberty or demand duties that offend his dignity, or
exceed a length of six months cannot be agreed.
The criminal defense
lawyer may take part in mediation proceedings. She can also play an
active role by requesting the public prosecutor to apply this
mechanism and negotiating with the victim’s lawyer. If they reach
an agreement, the case will be closed (the effect is equivalent to
the withdrawal of the complaint by the victim – so, there will be
no criminal records whatsoever).
II. The provisional
suspension of proceedings (3) is a mechanism that allows the public
prosecutor not to accuse the suspect. Instead of presenting a bill of
information against him, the public prosecutor may propose the
suspension of proceedings subject to compliance with certain duties
by the suspect (moral satisfaction of the victim, compensation,
treatment, etc.).
If the suspect complies
with those duties, the case will be closed and cannot be reopened
(the effect is equivalent to the closure of the case without charges
– there will be no criminal records whatsoever, but during the next
five years the defendant may not benefit of this mechanisms in future
criminal proceedings). If the victim has requested to take an active
role in criminal proceedings (“assistant” to the
prosecution) her consent is necessary.
The criminal defense lawyer can play an
active role by requesting the public prosecutor to apply this
mechanism and negotiating with the victim’s lawyer.
III. Closure in cases of exemption of
penalty (article 280 Code of Criminal Procedure) is a particular case
in which the public prosecutor may refrain from bringing charges
against the accused.
This happens in those situations for
which the Criminal Code (4) foresees the possibility of conviction
without applying a sanction to the defendant. These are cases of
lower guilt and minor wrongdoings, in which there has been
compensation of damages and there aren’t any preventive arguments
that hinder the non-application of the penalty. The effect is
equivalent to the closure of the case without charges – there will
be no criminal records whatsoever.
Apart from the Criminal Code, there are
several specific regulations that allow the public prosecutor to use
of this mechanism – v.g.: Tax Crimes allow for exemption of penalty
if the tax returns have been properly corrected and all taxes and
interest due have been paid before the bill of information has been
filed ns has been revealed (5) ; legislation on drugs trafficking allows
the exemption of penalty for those suspects who cooperate with the
authorities in gathering substantial evidence to identify or capture
other suspects, in particular if these are members of criminal
associations, groups or organizations (6) ; a similar provision for
terrorist organizations can be found in the Criminal Code (7) ; in
corruption cases exemption of penalty may be applied to the whistle
blower who reported the crime within 30 days of its
perpetration or to the person that promises/accepts an undue benefit
and withdraws/refuses it before performing the correspondent action (8).
In all of these situations, the defense
lawyer may intervene providing advice to the client on a possible
cooperation and/or requesting for the application of the diversion
mechanism.
IV. Processo sumaríssimo (9) (summary or
speedy proceedings) is the only situation in the Portuguese legal
system in which a criminal sanction may be imposed on a criminal
defendant without an oral and public trial hearing. The public
prosecutor files the bill of information together with a proposal for
a criminal sanction and serves it directly to the defendant. He may
accept it and, after judicial approval, the sanction will be
enforced. These proceedings may only apply if the public prosecutor
finds it unnecessary to impose a custodial sanction.
The defense lawyer may trigger the
application of the processo sumaríssimo. Nevertheless this is rather
unusual and therefore the prosecutorial proposal is typically not
negotiated previously with the defendant or his lawyer.
Furthermore, once the prosecutor files the bill of information with
his proposal, he cannot change it, unless the judge refuses to impose
the requested sanction and proposes a different one.
V. Similarities and differences
These four possibilities of diversion
have some differences that must be pointed out. Regarding the maximum
applicable sentence threshold, the closure in cases of exemption of
penalty may only be applied to crimes punished with a sentence of up to six months
imprisonment, or in other cases specifically enumerated in statutory
law (such as the above mentioned cases of drugs trafficking,
corruption, etc.).
The other diversion mechanisms may in
general be applied to crimes punishable with a sentence of up to five
years imprisonment.
From a different perspective, mediation
may only take place in private or semi-private crimes (i.e. crimes
regarding which the commencement of proceedings and further
prosecution depends on the victim submitting a formal complaint and
filing a private bill of information against the defendant – the
latter only in private crimes) against the persons or against
property.
Moreover these diversion mechanisms –except closure in cases of exemption
of penalty – have a particular characteristic: the victim (although
in different degrees (10) ) is also a part of the agreement and may
oppose it.
Concerning the competent authority,
apart from mediation, a judge must approve the application of
diversion mechanisms. Mediation agreements must be approved by the
public prosecutor. If the judge does not accept the application of
the diversion mechanisms as proposed the proceedings will continue,
but the judge he may not preside over the trial.
Another important aspect: with
exception of the processo sumaríssimo, the suspect doesn’t always
have a lawyer appointed at this stage. He may request one, but the
appointment is neither automatic nor compulsory (11). This means that
during the investigation, when facing the possibility of accepting
diversion mechanisms, the suspect doesn’t
always enjoy the advice of a criminal defense lawyer.
Finally it must be stressed that only
the conviction in processo sumaríssimo will be written on the
defendant’s criminal records (12) and is hence equivalent to a final
judgment. The other decisions will also be registered, but this
register is only available to the courts and to prosecution
authorities and it doesn’t have the value of as previous
conviction.
VI. Are these mechanisms forms of plea
bargaining?
From the formal point of view the
mechanism that most resembles plea bargaining is the processo
sumaríssimo. In theory under this regime both the suspect, through
his criminal defense lawyer, and the public prosecutor may propose
that the suspect pleads guilty to the facts on the bill of
information and accepts a certain criminal sanction. Nonetheless
there is usually no real bargaining – the proceedings take place in
writing, by means of formal written submissions. Usually the defense
lawyer is neither able to call the public prosecutor, nor to talk to
him in order to negotiate the terms of the agreement, although it may
occasionally happen, for instance during an interview of the
defendant in the investigative stage.
From the practical point of view,
closure in cases of exemption of penalty or even the provisional
suspension of proceedings could resemble more a bargaining process,
as the lawyer could approach the prosecutor and “negotiate” the
defendant’s providing of a statement against obtaining the
application of those mechanisms. This is becoming more and more
common in cases of white-collar complex crimes.
Closure in cases of exemption of
penalty and provisional suspension of proceedings, as well as
mediation do not require a formal guilty plea.
Nevertheless, an admission of the facts is usually required. This
could be seen as problematic because negotiation by the lawyer of the
application of these mechanisms (especially the first two) will imply
that his client is willing to admit guilt. Generally a negotiation
conducting to the application of these mechanisms will even only take
place after the suspect has made a formal statement in which he
admits having committed the facts.
If everything goes well, the case will
be closed. If there is a breach of the agreement or obligations (in
the cases of mediation and provisional suspension of the procedure),
proceedings will continue and a bill of information will be filed (13).
Equally if the prosecutor or the judge after “negotiation”
refuses to apply the diversion mechanism, a bill of information will
be filed and proceedings will continue.
Evidently an admission of guilt by the
former suspect and now defendant will be a disadvantage. This happens
especially during the investigation – the suspect may have given
important leads to the investigating authority. Before the Court the
defendant may rely on his right to silence and his former statements
may only be used if they were made in front of an investigation judge
or a prosecutor and in the presence of a lawyer. This is a major
change in our legal system, which occurred in 2013. Until then, if
the defendant relied on his right to silence during trial, his
previous statements could never be used. This would make it easier
for the lawyer to risk advising the defendant to give a pre-trial
statement in order to try to obtain the application
of a diversion mechanism.
C – Plea bargaining during the trial
stage?
Firstly, some clarifications on the
pleas before the Court in the Portuguese legal system must be given.
In our system, the defendant doesn’t present a plea through his
lawyer. There is no such thing as formal “pleas”.
Rather the defendant is given the
opportunity to give a statement at the beginning of the trial
hearing. If he states that he is innocent, he should also provide an
explanation of the facts – otherwise the “plea” won’t have
any real effect.
If the defendant confesses the facts on
the bill of information or on the indictment in open court – i.e.
if he “pleads guilty” – freely and voluntarily, closing
arguments will take place and the judge(s) will decide on the penalty
(which is not subject to negotiation). The confession will only have
this effect on crimes punishable with imprisonment up to 5 years. The
contradictory and oral discussion of the case is compulsory whenever
a more severe crime comes to play. When deciding on the sentence, the
court may take the confession in account as a mitigating
circumstance.
A plea bargain as such a trial stage
does not exist in our legal system. Despite the total absence of
legal regulations of settlements in criminal trials, certain
scholars, some branches of the public prosecutions’ office and
various judges advocated for the possibility of making such
settlements on the basis of the existing law.
Clearly influenced by the German
experience and the German legal system (where “sentencing
agreements” started to be agreed upon without an explicit legal
permission), they proposed that on the basis of our legal regulations
of “confessions” at trial (14), at the
beginning of the trial hearing the prosecutor and the defendant would
propose an settlement concerning the maximum applicable sentence,
made possible on the basis of the confession made by the defendant in
front of the trial judge(s).
Some prosecutors adhered to this
practice and entered into these settlements with the defendant’s
lawyers and some judges accepted them. This practice didn’t last
long though.
One case – where one of the
defendants who entered the settlement considered that his
expectations had been violated and appealed his convictions –
reached the Supreme Court and it outlawed such agreements declaring
them to be illegal and therefore null and void and determining that a
confession obtained against a promise of such an agreement had to be
excluded (15).
The grounds: the possibility of
entering into such an agreement had to enacted by the legislator;
accepting such agreements without previous legal stipulations of the
proceedings would clearly violate the loyalty principle, the legality
(truth-seeking) principle, the exigencies for legal certainty and the
principle of equality before the laws, since the admissibility of
such agreements would depend of the willing of the prosecutors and
courts of a certain location; the defendants made a confession in the
expectation to obtain an agreement concerning the sanction that would
be imposed, but such a promise was illegal and not permitted by the
Code of Criminal Procedure; article 126 (1) of the Code of Criminal
Procedure states that “evidence obtained by torture, coercion, or,
as a general matter, infringement of personal physical or moral
integrity, is null and void”; article 126 (2) (e) states that
evidence obtained by “promise of a benefit not permitted by law”
is offensive of the personal moral integrity; this is an absolute
prohibition and evidence must be suppressed.
The Court underlined that it was not
taking a position on the benefits of such a plea bargaining institute
for the criminal justice system, but simply deciding whether there
was a legal basis that allowed for those settlements.
After this ruling of the Supreme Court,
the General Prosecutor’s Office issued an Instruction forbidding
prosecutors to enter in those kinds of settlements, which put an end
to the short-living “sentence bargaining” practice (16).
D – Some words on the role of the
lawyer
We described above the possible
intervention of the lawyer in negotiating the application of
diversion mechanisms akin to some form of plea bargaining, including
the practical difficulties of that negotiation. How does this
influence the role of the lawyer?
In our system, the criminal defense
lawyer sometimes finds himself in a complicated situation: should he
advise his client to request or accept the use of diversion
mechanisms? Or should he risk going to trial? Once before the Court,
should the defendant confess?
The answer to these questions –
particularly in cross-border cases – requires a very thorough
assessment of the evidence, but also the lawyer’s instinct and
experience on the functioning of our prosecutorial
institutions and courts.
If there is strong evidence against the
client, it might be better for him to admit his guilt and to get in
exchange the assurance of a non-custodial sanction
(processo sumaríssimo), a conditional closure of the case or a
closure with exemption of the penalty (which means no criminal
records...). This is evidently a weighty aspect in any legal system.
A highly relevant factor concerning our
legal system is also time – proceedings in Portugal, especially in
white-collar complex cases, may take years and therefore it could be
preferable for the defendant to accept the minor consequences of a
diversion mechanism and have the case closed swiftly.
In cross-border cases it is crucial
that a multi-national team assesses whether
the client is able to obtain a more beneficial settlement in a
foreign jurisdiction and if it could be adequate to preclude further
proceedings also in Portugal (cross-border ne bis in idem or double
jeopardy).
Sadly the task of reaching a decision
on advice is sometimes made very difficult, because we do not have a
precedent system and our case law is everything but coherent and
uniform. In a system like this, it is difficult – though not
impossible – to assess the probability of conviction and, most
importantly, the degree of sanction that the client risks. Ultimately
this can lead to a tendency to advise clients to accept the
application diversion mechanisms (to avoid criminal register or a
custodial sanction) or to give a confession in court (in order to
possibly getting a milder sentence), in order to trade risk of an
unpredictable possibly custodial sanction for the certainty of a
minor consequence or a lower sentence. Downside – certainty is not
always 100% granted and does not include the length or type of the
criminal sanction to be applied when the defendant is facing trial.
On these grounds the principle that “a bad settlement is always
better than a good law suit” must be considered most
prudently when giving advice in
criminal proceedings in our legal system.
E – Towards plea bargaining in the
Portuguese Legal System?
Do we have plea bargaining then? It
does seem like we are moving away from a principle of strict legality
to a more discretionary system based on the principle of opportunity.
But there is still a long road to walk in the direction of a plea
bargaining model, such as e.g. the systems in the United States,
mainly on four grounds:
-Firstly, we have a very formal system
that sometimes makes it difficult to approach prosecutorial
authorities with a view of starting negotiations in which the
defendant’s lawyer may contribute to the contents of a possible
agreement.
-Secondly, when these negotiations are
possible, they are not specifically regulated by law and therefore
“agreements” possibly made with the prosecutorial authorities are
made informally and are not binding upon the prosecutor until they
have been converted in a formal proposal to apply a diversion
mechanism. This leads to an insecure bargaining model, since if the
defendant’s lawyer “agrees” with the prosecutor on having his
client giving a statement in trade for e.g. a closure with exemption
of penalty or a provisional suspension of proceedings, this
“agreement” will not be recorded in any way whatsoever. If for
some reason the prosecutor does not respect the “agreement” (it
could simply be the case if after the statement were given, there
responsible prosecutor changes), the defendant will have trouble
having his statements suppressed, as such
agreements are not clearly regulated in our law and it is doubtful
whether an exclusionary rule would apply. In any event it would be
hard to picture how the defendant could prove that such an agreement
even existed.
-Thirdly, most of the diversion
mechanisms that resemble a form of plea bargaining (save closure with
exemption of penalty) are limited to minor offenses.
-Fourthly, as we will explain beneath, bargaining in ordinary criminal
proceedings (save processo sumaríssimo) is limited to the pre-trial
stages.
Whether our system will walk the road
towards a “pure” plea bargaining model is unlikely. But the
influence of foreign plea bargaining models is present and it is
likely that the pressure of economic crisis, the rising quantity of
pending proceedings, as well as the increasing complexity, length and
number of white- collar criminal cases and the associated financial
burden17 will lead to a wider and more flexible plea bargaining model
and probably the enactment of laws allowing for settlements for the
application of criminal sanctions at the trial stage. This will
require a rethinking of the lawyer’s role and defense strategy,
which will also have influence on advising clients in cross-border
cases.
Vânia Costa Ramos
(1) Código de Processo Penal, enacted by
DL (Law Decree) n.º 78/87, of 17 February. The Code was reformed for
the first time in 1995 and more recently in September 2007, 2010 and
2013.
(2) Law no. 21/2007, of 12 June.
(3) Articles 281 and 282 Code of Criminal
Procedure.
(4) Código Penal.
(5) Articles 22 and 44 General Regulation
on Tax Infringments (Regime Geral das Infracções Tributárias) –
Law 17/2001, of 5 June.
(6) Article 31, Law 15/93, of 22 January.
(7) Article 299, no. 4, Criminal Code.
(8) Article 374-B Criminal Code. The Law
on corruption in international commerce and in the private sector
does not foresee the “whistle blower” case (Law 20/2008, of April
21, article 5), but it’s applicability on the basis of the Criminal
could eventually be sustained.
(9) Articles 392-398 Code of Criminal
Procedure.
(10) In the mediation procedure, the
agreement of the victim is always required. In the provisory
suspension of the procedure, it will only be required if the victim
requested her admission as an Assistant (similar to the German
Nebenkläger and Privatkläger).
(11) Although there are cases in which the
appointment is compulsory – ex: people under 21, foreigners who do
not master Portuguese, detainees, etc.(
(12) Although even in these situations it
is possible to exceptionally request the judge not to order the
transcript of the decision in the criminal records, for employment
purposes.
(13) We have to bear in mind that the
application of these mechanisms is only allowed if there are strong
evidentiary elements, from which it may be concluded that there is a
probability that the suspect actually did commit the crime.
(14) Art. 344 Code of Criminal Procedure.
(15) lien.
(16) lien.
(17)Trial hearings in high profile
complex cases usually takes months and sometimes even years.
