João Santos Marta comments on proposal to introduce a cooperating witness scheme in Portugal

Chega submitted a bill to Parliament in July aimed at creating the status of a cooperating defendant, moving ahead of the Government on this matter. The working group established by the Minister of Justice to prepare a draft reform of the criminal justice system, including the expansion of the application of the so-called “reward-based mechanisms”, had until the end of August to complete its work, according to Público.

Although he admitted the bill for debate, the President of the Portuguese Parliament did so with reservations: Aguiar-Branco fears that several of its provisions may be unconstitutional.

In an interview with Público, João Santos Marta, senior Associate in SÉRVULO’s Litigation and Arbitration department, analysed the proposed cooperating witness scheme in Portugal, highlighting the constitutional and procedural challenges that such a measure may raise.

The lawyer anticipates an intense debate regarding the proposal’s constitutionality, describing it as “a Pandora’s box that could disrupt the architecture of the Portuguese criminal justice system”. Among the key issues identified, he points to the lack of clarity surrounding the terms of agreements to be entered into between cooperating defendants and the judicial authorities, warning of the risk of potential abuses and the challenges that the mechanism could pose to the balance of procedural safeguards.

João Santos Marta further emphasises that, in proceedings involving multiple defendants, the cooperation of one of them with the authorities may affect the defence rights of the others, particularly regarding the right to remain silent. The concerns raised by the lawyer form part of the ongoing debate on whether such a mechanism is compatible with the fundamental principles of the Portuguese criminal justice system.

Read the full interview here.