REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Bulgarian Country of exchange: Portugal Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: Bulgarian Functions: Prosecutor Length of service: 7 years Identification of the exchange Hosting jurisdiction/institution: Prosecution office-lisbon, DIAP City: Lisbon Country: Portugal Dates of the exchange: Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT My short term exchange was in the period of th of December 2013 and was held at the prosecution office of DIAP Lisbon. I had the chance to meet wonderful colleagues, such as the prosecutor who welcomed me- Patricia Barao. She handled mainly cases connected with economic crimes, which is my field of specialty too, so we were able to compare differences and share similarities in our work. Within the first days I was introduced to all the colleagues that belonged to the department of Ms Barao. I was able to see her daily work, dealing examine cases, attend to court hearings. The Portuguese judicial system includes judicial courts and administrative courts, both of them falling within the appellate jurisdictions of two supreme courts: respectively, the Supreme Court of Justice and the Administrative Supreme Court. The territory of Portugal is divided in comarcas, each one of them has one or more courts with primary jurisdiction (tribunais de comarca); the comarcas are grouped in four judicial districts (Lisbon, Oporto, Coimbra and Évora), each one of them has one or more courts of intermediate jurisdiction (tribunais de Relação); and, at the top of the pyramid, the Supreme Court of Justice. The Public Prosecution Service is represented at the following courts: 1. In the Supreme Court, the Constitutional Court, the Supreme Administrative Court, and Audit Court, by the Attorney General; 2. In the High Courts and in the Central Administrative Court, by assistant attorneys general;

3 3. In courts of 1st instance, by state prosecutors and by assistant state prosecutors. The bodies of the Public Prosecution Service are: a) The Attorney General's office; b) The District Attorney General's offices; c) The State Prosecution Offices The highest authority in the prosecution service is the Prosecutor-General s Office. It is a collective body comprising of the Prosecutor-General, the Higher Council of Public Prosecutors, the Consultative Council of Public Prosecutors, the Judicial Auditors and several administrative and technical services. The Attorney General's Office has jurisdiction: 1. To appoint, place, transfer, promote, discharge, consider professional merit, take disciplinary action and carry out, in general, all acts of an identical nature with regard to the magistrates of the Public Prosecution Service, with the exception of the AttorneyGeneral; 2. To direct, coordinate and supervise the activity of the Public Prosecution Service and issue directives, orders and instructions that are binding on the magistrates of the Public Prosecution Service while carrying out their functions; 3. To give opinion in cases of consultation provided for in law and where requested by the President of the Assembly of the Republic or by the Government; One of the differences, compared to the Bulgarian prosecution office, is that in Portugal there is category of legal auditor. For the Portuguese Assembly of the Republic, for each ministry and for the Ministers of the Republic for the Autonomous Regions, there may be one assistant attorney general with the category of legal auditor. The legal auditors carry out the functions of legal consultation and support at the request of the President of the Assembly of the Republic, members of the Government or Ministers of State. The Advisory Council of the Prosecutor s office, and its representatives in the ministries, gives legal opinions on bills, on the compatibility of international conventions or agreements with Portuguese legislation, and on the existence of any flaws, contradictions or obscure passages in legal texts On the other hand, unlike in Bulgaria, the work of a public prosecutor in Portugal is divided in two different parts. There are Public Prosecutors who carry out investigation and prosecutors who do not take part in the investigations. The later receive the files of a case only after the indictment has already been written and plead the case in court. They are called " Procuradores de la República". The prosecutors who direct the inquiry are assisted by the bodies of criminal police and close the inquiry with an indictment or a decision to shelve the case, depending on whether or not the evidence gathered is enough to indicate that a crime has occurred and who is the perpetrator. There are specialised departments that deal exclusively with criminal investigations and prosecutions: Departamento Central de Investigação e Acção Penal DCIAP (Central Department of Criminal Investigation and Prosecution), located in Lisbon, and four regional departments, each one of them located at the head of each judicial district- Lisbon (DIAP Lisboa), Oporto (DIAP Porto), Coimbra (DIAP Coimbra) and Évora (DIAP Évora). The DCIAP (central department) has the capacity to coordinate the investigations of violent crime, highly organised crime and crimes of special complexity and direct the inquiry and prosecute those crimes when the criminal conduct is undertaken in more than one judicial district.the Central Department of Investigation and Penal Action, led by a Vice Prosecutor-General, has the powers to issue orders and instructions on the way prosecutors and police should investigate, as well as regarding crimes whose investigation they are competent to co-ordinate. According to the Portugal legislation, the prosecution service has the following characteristics: - the prosecution service is independent from political and judicial powers; - the service is autonomous in its actions; - the powers of the prosecution service are functionally circumscribed by the law; - there exists a hierarchical structure; this implies that members of the prosecution service must obey directives, orders and instructions issued by their hierarchical superiors; - in its actions, the service is bound by the principle of objectivity. Tthis implies a duty to apply instruments of law to establish material truth, and not to apply them as instruments of accusation only.

4 As a rule, in both countries, the prosecution service has the monopoly over prosecution except for semi-public crimes and private crimes. Concerning semi-public crimes, the public prosecutor needs a formal complaint by the victim in order to prosecute. This is the case with sexual offences, lack of due assistance to the family, property damage and others. The private crimes require a private accusation preceding the public prosecution. This is the case with nearly all forms of crimes against the honour of a person. The maximum lenght of the inquiry in Portugal is 8 months, but if the accused is held in pre-trial detention or in house arrest, the period id six minth Supervision of the acts of the police during the inquiry is not carried out by the prosecution service only, but also by the investigating judge. The latter supervises the legality of the investigative acts of the prosecution service and of the police in order to ensure that the law is obeyed and that fundamental rights are respected during the inquiry phase. In this aspect both Bulgarian and Portugal legal system don't share any substential differences. However, a substantial difference I found between the two legal systems is the fact that Portuguese penal legislation provides for the following the non-custodial sentences: Replacement by work at the request of the sentenced person, the court can order that the penalty imposed be completely or partially replaced by days spent working in state establishments or offices or on public works or private social welfare institutions, if it is deemed that this form of compliance is fitting and sufficient to satisfy the purposes of the punishment. This institute is not present in Bulgarian legal system Suspension of the custodial sentence provided that the custodial sentence does not exceed five years / 3 years in Bulgaria/, the court may take into account the character of the person concerned, his life conditions, his conduct before and after the crime and the circumstances of the crime, Community service - if the sentence does not exceed two years, if the court decides that this measure is a suitable and adequate way to fulfill the purposes of the punishment, and if the person concerned accepts- another institute that is not present in our legal system. Warning as an alternative to a penalty not exceeding 240 days. In our legal system warning is not an alternative penalty, and community service may be part of the probation measures upon the decision of the court. Weekend detention at the discretion of the court this may be applied when the custodial sentence is not more than one year, resulting in the deprivation of liberty for periods corresponding to weekends, which may not exceed 72 periods. Semi-detention a custodial sentence of not more than one year which may not be substituted by any other type, nor covered by weekend detention, may be carried out under a system of semi-detention if the sentenced person agrees to this. The system of semi-detention consists of the deprivation of liberty in a way which allows the sentenced person to continue working as normal or pursuing vocation training or studies, by strictly limiting the occasions on which he leaves his residence to such as are necessary for him to meet his obligations. The entire institute of weekend and semi-detention is not present in Bulgaria. In Lisbon I had the chance to attend to court sessions. At a first glance, the difference I found was that in Portuguese court session, the Public prosecutor is sitting right next to the judge, on his right side. In Bulgaria, both- the prosecutor and the attorney, are situated at the same level in front of the judgedue to the principle of equality of the subjects of the process. Another difference I found was that in Bulgaria, in penal cases, jurors take part in the Court body. Jurors have the same rights as judges. The Court hear the penal cases as first instance in a body of: 1. one judge, if for the crime a penalty to five years of imprisonment or other lighter punishment is provided; 2. one judge and two jurors, where for the crime a punishment more than five years of imprisonment is provided; 3. two judges and three Court jurors, where for the crime a punishment of not less than fifteen years of imprisonment or other heavier punishment is provided.

5 In Portugal, jurors participate in trials only as an exception, in few cases. At the request of the accused, a jury may be used in trials for major crimes, but I learned that in practice, requests for jury trials are extremely rare. In Portugal, the court concludes the trial after the oral arguments of the prosecutor and the attorney, and decides within ten days. In Bulgaria, the decision is given immediately after the last words of the defendant. The judge cannot proceed with any other case until he makes the decision on the previous one. However, in Bulgaria, the motives of the sentence are written within 30 days, but are not read publicly, while in Portugal, the court reads the sentence publicly along with the motives. Another thing that I found interesting was in terms of the status of the prosecutors in Portugal. While I was in Lisbon, my colleagues shared with me, that a week ago they were engaged in strike, due to the fact, that for a long period of time they were denied the right to be promoted to a higher level, and as well as due to the fact, hat their salaries were cut by 30 %. I colleague of mine, who was an assistant prosecutor for 16 years, mentioned, that the career movement in the prosecution office in Portugal is restricted, possible only after a number of years at a service at the same level, thus limiting the chance of young people to be promoted. By comparison, in Bulgaria, the prosecutors and judges are denied of the right to commit a strike, due to the provision in our Judicial system act, that strictly prohibits it. Basically, we have limited, if none, methods to protect our rights as magistrates. On the other hand, if we want to pursue a career at a higher level in the prosecution office or in court, we have to undergo a special procedure called "performance appraisal " by the Supreme judicial council of our country, which is supposed to be a revision of our work as prosecutors and then participate in a competition, organized by the Council. However, the rules, methods and criteria both of the performance appraisal and the competition are not as clear and objective. Actually, this is something our Government and Council have to work upon in order to have a really independent and impartial judicial system. The exchange programme has helped me to understand that Portuguese system of criminal law and criminal procedure is very similar to Bulgarian one in terms of major principles of Law and protection of human rights, as stated in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Judicial international cooperation instruments are frequently used in both countries-expecially European Arrest Warrant and extradition. I realized that we have common problems as magistrates regarding both our status and daily work. As a result of the short term exchange, I have a high confidence in the Portuguese system and in the possibility to cooperate with my colleagues. The similarities of our systems and the measures, taken by the two countries in the adoption of European law mechanisms and cooperation against international crimes gives me hope that the idea of European public prosecution office may become reality in shorter terms.

6 SUMMARY My short term exchange was in the Prosecution office of DIAP Lisbon. I had the chance to meet wonderful colleagues, such as the prosecutor who welcomed me- Patricia Barao. She handled mainly cases connected with economic crimes, which is my field of specialty too, so we were able to compare differences and share similarities in our work. Within the first days I was introduced to all the colleagues that belonged to the department of Ms Barao. I was able to see her daily work, dealing examine cases, attend to court hearings. The Portuguese judicial system includes judicial courts and administrative courts, both of them falling within the appellate jurisdictions of two supreme courts: respectively, the Supreme Court of Justice and the Administrative Supreme Court. The Public Prosecution Service is represented at the following courts: 1. In the Supreme Court, the Constitutional Court, the Supreme Administrative Court, and Audit Court, by the Attorney General; 2. In the High Courts and in the Central Administrative Court, by assistant attorneys general; 3. In courts of 1st instance, by state prosecutors and by assistant state prosecutors. The highest authority in the prosecution service is the Prosecutor-General s Office. It is a collective body comprising of the Prosecutor-General, the Higher Council of Public Prosecutors, the Consultative Council of Public Prosecutors, the Judicial Auditors and several administrative and technical services. One of the differences, compared to the Bulgarian prosecution office, is that in Portugal there is category of legal auditor. For the Portuguese Assembly of the Republic, for each ministry and for the Ministers of the Republic for the Autonomous Regions, there may be one assistant attorney general with the category of legal auditor. The legal auditors carry out the functions of legal consultation and support at the request of the President of the Assembly of the Republic, members of the Government or Ministers of State. On the other hand, unlike in Bulgaria, the work of a public prosecutor in Portugal is divided in two different parts. There are Public Prosecutors who carry out investigation. They work in the Central Department of Criminal Investigation and Prosecution), located in Lisbon, and four regional departments, each one of them located at the head of each judicial district- Lisbon (DIAP Lisboa), Oporto (DIAP Porto), Coimbra (DIAP Coimbra) and Évora (DIAP Évora). On the other hand, there are prosecutors who do not take part in the investigations. They receive the files of a case only after the indictment has already been written and plead the case in court. They are called " Procuradores de la República". As a rule, in both countries, the prosecution service has the monopoly over prosecution except for semi-public crimes and private crimes. A substantial difference I found between the two legal systems is the terms of the penalties applied. Portuguese penal legislation provides for the following the noncustodial sentences, that are not present or differ in Bulgaria: Replacement by work, Community service, Weekend detention and Semi-detention. In Lisbon I had the chance to attend to court sessions. At a first glance, the difference I found was that in Portuguese court session, the Public prosecutor is sitting right next to the judge, on his right side. In Bulgaria, both- the prosecutor and the attorney, are situated at the same level in front of the judgedue to the principle of equality of the subjects of the process. Another difference I found was that in Bulgaria, in penal cases, jurors take part in the Court body. Jurors have the same rights as judges. In Portugal, jurors participate in trials only as an exception, in few cases. At the request of the accused, a jury may be used in trials for major crimes, but I learned that in practice, requests for jury trials are extremely rare. In Portugal, the court concludes the trial after the oral arguments of the prosecutor and the attorney, and decides within ten days. In Bulgaria, the decision is given immediately after the last words of the defendant. The judge cannot proceed with any other case until he makes the decision on the previous one. However, in Bulgaria, the motives of the sentence are written within 30 days, but are not read publicly, while in Portugal, the court reads the sentence publicly along with the motives.

7 Another thing that I found interesting was in terms of the status of the prosecutors in Portugal. The promotion in the prosecution office in Portugal is possible only after a number of years at a service at the same level, thus limiting the chance of young people to be promoted. On the other hand, in Bulgaria, if we want to pursue a career at a higher level in the prosecution office or in court, we have to undergo a special procedure called "performance appraisal " by the Supreme judicial council of our country, which is supposed to be a revision of our work as prosecutors and then participate in a competition, organized by the Council. However, the rules, methods and criteria both of the performance appraisal and the competition are not as clear and objective. The exchange programme has helped me to understand that Portuguese system of criminal law and criminal procedure is very similar to Bulgarian one in terms of major principles of Law and protection of human rights, as stated in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Judicial international cooperation instruments are frequently used in both countries-expecially European Arrest Warrant and extradition. I realized that we have common problems as magistrates regarding both our status and daily work. As a result of the short term exchange, I have a high confidence in the Portuguese system and in the possibility to cooperate with my colleagues. The similarities of our systems and the measures, taken by the two countries in the adoption of European law mechanisms and cooperation against international crimes gives me hope that the idea of European public prosecution office may become reality in shorter terms.

8 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?