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History
The early days
Liberalism
Decree No.24 dated 16 May 1832
The beginning of the 20th century
Republican regime
25 April 1974
The early days

The origins of the Public Prosecution Service are to be traced far back at a time where the efforts to conquest the territory relented, and the Government was finally able to focus on matters such as justice administration and centralisation. In spite of the lack of a clear definition, the tasks were successively assigned to King’s Prosecutors, to Prosecutors for Justice Affairs and for the Casa da Suplicação, as well as to Crown Prosecutors or Prosecutors for the Deeds of the Crown and the Treasury.

By an Act of King D. Afonso III dated 14 January 1289 the king’s Prosecutor became a permanent post. Any person having claims against the King was summoned to appear at the King’s House (Tribunal da Relação), where the King’s Prosecutor would decide on the matter.

The Casa da Suplicação Rule and the Livros e Posturas Rule, both dating from the reign of D. João I, described not only the tasks performed by the King’s Prosecutors and their intervention in law cases, but also those of the Prosecutors for Justice Affairs and for Casa da Suplicação.

The Ordenações Afonsinas e Ordenações Manuelinas (a compilation of rules set forth by King D. Afonso V and King D. Manuel I) published in the Kings’ charter dated 28 March 1514 allowed the profile of the institution to emerge gradually.

An Order dated 21 August 1637 interdicted jurisdiction matters to be dealt with «without permission of the Crown’s Prosecutor», which shows clearly the importance that the Crown’s Prosecutor was gradually being granted.

These were the key milestones of the Public Prosecution Service evolution.

A new path had been unfolded.

Liberalism

The organisation of the Public Prosecution Service was taken up by the liberal regime, having been reshaped in line with the regime representative principles.

An Order of the Constitutional Assembly issued on 12 November 1822 (which never became effective) included new five Tribunais da Relação (Courts of Appeal), each one having been assigned a Prosecutor for the National Sovereignty and the Crown, a Treasury’s Prosecutor and a Prosecutor for Justice.

The Prosecutors for the National Sovereignty and the Crown were appointed by the king himself, and they were entrusted with the defense of the interests of the national sovereignty or of the Crown in all judicial matters. They had to report to the Government and might be dismissed if deemed to «deserve it».

The Prosecutors for the Public Treasury were equally responsible for matters involving finances. The post accumulated with that of Prosecutor for the National Sovereignty and for the Crown in the whole of the territory, except for Lisbon ¾ where they could be separated at the Government’s discretion.

It was further incumbent on the Prosecutors for Justice Affairs to prosecute and request the enforcement of the judgments «in case of lack of accusing or requesting parties».

This was the first attempt to outline the future Public Prosecution Service organisation as a body of the Executive branch capable of representing and promoting the public interest at court – as its designation suggests.

Nonetheless, the rather incipient and scattered organization traces of the Public Prosecution Service persisted: its duties, still poorly defined, were performed at the same court by several entities without a common decision-making center and a clear organisational framework to abide by.

Decree No. 24 dated 16 May 1832

The final terms that dictated the Public Prosecution Service organisation and the powers were set forth by Decree No. 24 dated 16 May 1832 ‑ the so-called «decree on the reform of the justices» signed in Ponta Delgada by the regent D. Pedro, duke of Bragança, on behalf of Queen D. Maria II.

Mouzinho da Silveira, Minister and Secretary of State for Justice Affairs at the time, was the booster behind this Decree, which represented a fundamental step towards the organization of the Public Prosecution Service.

Mouzinho da Silveira set up the Supreme Court of Justice and established the post of Prosecutor General for the Crown at that Court. He further established the posts of Royal Prosecutor at each second instance court and those of Deputy Royal Prosecutor at each first instance chamber. While performing his duties, the Deputy Royal Prosecutor also applied for the Judiciary. An Assistant to the Deputy Royal Prosecutor was appointed for each section, according to the latter’s choice and trust.

These posts were under the immediate subordination of the Government, and their holders were to be dismissed at the Government’s sole discretion.

For the first time, the Public Prosecution Service appeared as a hierarchic structure in which the Prosecutor General for the Crown played the core role. This structure was developed by Decree No. 27 dated 19 May 1832, which stated that «the Prosecutor General for the Crown is above the Royal Prosecutors, and he shall be in touch with them and the Government».

The future consultative powers of the Prosecutor General’s Office were already being outlined: the Prosecutor General for the Crown’s opinion could be requested in writing both by the Government on any affairs it deemed appropriate and by the Chambers on legislative matters. The Prosecutor General for the Crown would also answer before the Chambers when invited to do so.

In order to grasp the increasing relevance of the consultative duties of the Prosecutor General’s Office it suffices to say that in a letter addressed to the king on 13 September 1908, when noting the convenience of postponing the town elections, José Luciano de Castro stated that such goal could only be attained upon a positive opinion of the Prosecutor General’s Office for the Crown: «Then I tried to convince Amaral to listen to the Prosecutor General’s Office for the Crown on this matter; hopefully he will give up his intention when faced with an opinion in favour of the postponing».

In another letter dated 6 October, while advising Mr. Ferreira do Amaral, president of the Government, José Luciano de Castro further stated that «he had discussed (the matter) with the Prosecutor General for the Crown», i.e. the Justice António Cândido Ribeiro da Costa. «I ended up by asking him (Ferreira do Amaral) to consider the opinion of both the competent directorate general and the Prosecutor General’s Office for the Crown, as it concerned a matter of law and its interpretation». And further on: «[...] and, after the hearings were closed, doubts had arisen as to the legality of the government’s intervention on this matter. Reason why the competent department and the Prosecutor General’s Office for the Crown had been heard thereupon and the government had been obliged to follow the opinion of the competent authorities, which helped avert the burden of performing a completely illegal act».

The Prosecutor General for the Crown, assisted by a Deputy — the embryo of the Consultative Council of the Prosecutor General’s Office —, was also the Government’s Commissioner at the chambers with seat next to the ministers. He also followed up the indictments submitted to the Upper House.

Not only did the Rules of 15 December 1835 specifically provide that the Public Prosecution Service played the main role in the prosecution of public criminal offences, but they also stated that the Public Prosecution Service ought to display an unequivocal unity in the fulfillment of the respective duties. Besides, those Rules confirmed the 1832 provisions on hierarchy.

These Rules also set forth that, when acting on behalf of the Royal Prosecutor’s Office, each service should keep four books (livros “riscados”), the first of which should contain entries of public crimes against freedom of the press.

Both the brand-new judicial reform contained in the Decree dated 21 May 1841 and the 1835 Rules reaffirmed the hierarchical structure of the Public Prosecution Service, the Prosecutor General for the Crown being vested in the highest post. According to the Decree, «he shall act within the strictest impartiality in the performance of his duties and pursue the interests of justice while acting as a law enforcement supervisor».

At that stage, all public Registrars and Notaries were dependent from the Prosecutor General’s Office for the Crown. Interestingly, remnants of this situation persisted in the territory of Macao for quite a long time ‑ according to the 1976 statute, the registry and notaries services operated under the supervision of the Prosecutor’s Office of Macao.

The correspondence to and from the Prosecutor General’s Office for the Crown was dealt with by the Supreme Court Registrar’s services. However, this situation came to an end with the Decree dated 5 November 1851 which, due to the caseload involved, set up a private registry.

Finally, the Decree dated 12 November 1869 closed this first and relevant process of evolution and growth by entrusting the Prosecutor General for the Crown with the duties previously incumbent on the Prosecutor General for the Treasury. This post had been established by Decree dated 30 December 1836, and its purpose was «the fight for the fair and obvious rights of the Treasury».

The new post became known as the Prosecutor General for the Crown and Treasury ‑ the highest post of the Public Prosecution Service covering the judicial and administrative fields ‑ and the person holding it became entitled to the assistance of six Deputies. The first Prosecutor General for the Crown and Treasury was Justice Martens Ferrão, one of the most remarkable jurists and public men of his time.

This new Decree set forth the Prosecutor General’s obligation to hold ordinary meetings with his Deputies twice a month, «in order to submit, discuss and vote issues raised by any of them». The opinion agreed upon should then be followed and sustained in all future replies, opinions or consultations.

Shortly thereafter, the duties that had been carried out by the administrative services of the State’s Council were passed on to the Prosecutor General for the Crown and Treasury and his Deputies in compliance with the provisions of a Decree effective from 9 June 1870.

Due to this increase in charges, sixty six meetings took place in the year of 1870 (instead of the previous bimonthly meetings) and eighteen meetings had to be held during the first quarter of 1871. In the course of the year of 1870, the total of lawsuits and official letters that were registered reached the number of 7,158, being 2,637 the number of lawsuits filed for consultation and decision thereupon.

In 1871, Justice Martens Ferrão submitted a report to the Minister for Justice on all the activities of the Prosecutor General’s Office, in which he proposed, among others, the systematic publication of opinions on important matters of law in relation to which the Government had to take a decision, with a view to improving case-law. This practice is still followed today.

The Registrar’s services of the Prosecutor General’s Office for the Crown and Treasury were greatly improved with the Rules of 29 December 1876. In fact, a significant impetus was given to their development when they were considered a Government’s high office entrusted with extended functions: from the administration of the Public Prosecution Service to law conflict and consultation issues submitted to the Court of Audits, and also to matters relating to the land registry offices and the Prosecutor General’s Office releases.

The beginning of the 20th century

Time was rendering obsolete what could have been taken as nearly perfect in 1876. In 1901, when presenting the reform of the Public Prosecution Service to the king, Justice Campos Henriques, Minister of Justice at the time, stated that the reorganization of that Magistracy was an ancient demand, as its members were given no guarantees capable of matching the high services they offered, while heir varied and complex powers still lacked a clear definition or codification.

Besides the increase of the Prosecutor General’s charges and the introduction of a systematic organization within the magistracy of the Public Prosecution Service, the most important innovation introduced by Campos Henriques was the setting up of the High Council of the Public Prosecution Service ¾ the supreme disciplinary body composed of magistrates chosen among their peers.

In order to justify the setting up of this important body, the introduction of the Decree read as follows: «[...] the disciplinary responsibility of the members of the Public Prosecution Service must be determined and appreciated by their superiors, though no obstacles are to be posed to the government intervention. Who is better fit to maintain the decorum and dignity of a certain class than its own members? ».

This Council was composed of the Prosecutor General for the Crown and Treasury, who supervised thereto, of his three senior Deputies, of the Royal Prosecutor at the Court of Appeal of Lisbon, and of the Prosecutor General’s Secretary, who had no voting right.

Besides the disciplinary powers, the High Council of the Public Prosecution Service established the seniority of the magistrates, and decided over the respective claims; it also acted as the Prosecutor General’s consultative body, and decided which case-law should be followed by the Public Prosecution Service in case of doubt, so as to give the greatest possible unity to this magistracy.

The concept of the Public Prosecution Service as a disciplined and active body, independent from the Judiciary — yet parallel thereto — with all the inherent rights and duties, comes out very clearly from this 1901 Decree, the main concern of which was the granting of the duly recognition of dignity due to the Public Prosecution Service members.

Republican regime

One of the first Decrees issued by the Republican Government on 8 October 1910 established that the Prosecutor General’s Office for the Crown and Treasury, should be renamed Prosecutor General’s Office, even though the former powers were kept intact. The Royal Prosecutors’ offices at the Courts of Appeal should be renamed District Prosecutors’ offices, and the Deputies (“delegados”) and the Assistants to the Deputies (“subdelegados”) of the Royal Prosecutor should become Deputies to (“delegados”) and Assistants to the Deputies (“subdelegados”) of the District Prosecutor. This Decree was signed by Afonso Costa, Minister for Justice and future Prime-Minister.

Since then and until the approval of the first Judicial Statute by Decree No. 13809 of 22 June 1927, the Public Prosecution Service underwent changes introduced by a series of isolated statutory provisions, which implemented the sexenniu rule (interdiction of holding office in the same place for more than six years) among others. Furthermore it became mandatory for Prosecutors to apply to the Judiciary.

According to the first Judicial Statute, the Public Prosecution Service was «the representative body of both the State and the society, as well as the supervisor of law enforcement».

In turn, the Statute provisions led to the conclusion that «the architecture of the Public Prosecution Service is now completed, the vestibular nature of the post of Deputy District Prosecutor having been reinforced. The career begins with the fulfilment of that post, and it becomes mandatory for the Deputy District Prosecutors to apply further to the Judiciary by way of tender, where the higher ranks are generally occupied by Judges».

The 1944 Judicial Statute carried some innovations: the Prosecutor General’s Office was granted the task of issuing legal opinions on the wording of statutory instruments upon the Government’s request; the Prosecutor General would be empowered by the Minister of Justice, and he would be assisted by seven District Prosecutors.

The 1962 Judicial Statute was unable to tackle the issue of the «clear separation that should exist between the Judiciary and the Public Prosecution Service».

The hierarchic relation between the Public Prosecution Service and the Minister of Justice was strongly affirmed in this Statute through powers retained by the Minister such as: the definition of the general directives by which the activities of the different bodies of the Public Prosecution Service had to abide when performing their duties; the appointment, promotion, assignment, transfer and dismissal of the Public Prosecutors; the undertaking of disciplinary action against Public Prosecutors; the definition of rules of procedure to be complied with by the Public Prosecutors as regards the criminal prevention and prosecution.

This Statute further set up a High Council of the Public Prosecution Service operating at the Prosecutor General’s Office.

25 April 1974

The Constitution of the Republic in its original version

To begin with, the 1976 Constitution of the Portuguese Republic reversed the deep-seated notion that the Public Prosecution Service was a branch of the executive power bound to the government.

In fact, the new basic law of the democratic Portugal vested the Public Prosecution Service with a statute of autonomy.

Since its very first version the basic law comprised both the Public Prosecution Service and the Prosecutor General’s Office as a clear sign of their relevance within the political power organisation.

Articles 224, 225 and 226 dealt with the powers and the statute of the Public Prosecution Service, of the Public Prosecutors and of the Prosecutor General’s Office.

According to article 224, the Public Prosecution Service is responsible for representing the State, instituting criminal proceedings, defending the democratic Rule of Law and such interests as laid down by the law (paragraph 1).

The Public Prosecution Service has its own statute (paragraph 2).

As regards the staff and the operation of the Public Prosecution Service, paragraph 1 of article 225 states that the Public Prosecutors are accountable magistrates subject to a hierarchy, who may not be transferred, suspended, retired or removed from office unless otherwise provided for by the law.

The appointment, assignment, transfer and promotion of the Public Prosecutors and the undertaking of disciplinary action are incumbent on the Prosecutor General’s Office (paragraph 2).

In turn, paragraph 1 of article 226 defined the Prosecutor General’s Office as the highest body of the Public Prosecution Service presided over by the Prosecutor General.

Pursuant to its paragraph 2, the rules of organisation and the composition of the Prosecutor General’s Office should be laid down by the law.

The constitutional layout for the Public Prosecution Service and the Prosecutor General’s Office would not be completed without reference to the provisions enshrined in the Constitution on the Prosecutor General’s appointment and to other constitutional provisions.

Pursuant to paragraph 1 of article 136 the President of the Republic is responsible for the Prosecutor General’s appointment and removal from office.

Other references may be quoted in the scope of the legislative powers of the Assembly of the Republic and of the constitutional monitoring system.

The first part of article 167(j) provided that it was exclusively incumbent on the Assembly of the Republic to make laws about the organisation and powers of the courts and of the Public Prosecution Service and to draft on the magistrates’ statute.

Article 281(1) stated that, upon request of the Prosecutor General or other relevant entities, the Council of the Revolution was competent to examine a given rule and to declare its unconstitutionality with binding force, if applicable.

Furthermore, it was stated that once the courts have refused to apply a rule laid down in any law, decree-law, governing decree, regional decree or any similar statutory instrument based upon a matter of unconstitutionality, and recourse to the ordinary appeals have been exhausted, a cost-free appeal shall be lodged so that a final decision on the matter can be reached by the Constitutional Commission. Such an appeal shall be mandatory for the Public Prosecution Service and restricted to the matter of unconstitutionality (paragraph 1 of article 282).

The appeal lodged against a court decision applying a rule previously deemed unconstitutional by the Constitutional Commission (paragraph 2) was further deemed mandatory on the Public Prosecution Service.

 

The 1982 Constitutional Revision

The status of both the Public Prosecution Service and the Prosecutor General’s Office underwent the changes inserted by the legislators through the different revisions to which the wording of the 1976 Constitution was submitted.

Broadly speaking, the core of the original text remained unaltered and unaffected.

Regardless of the variation to which the numbering of the articles was subjected, the 1st Constitutional Revision brought no significant changes to the text.

Even though, one relevant change in article 226(2) should be emphasized.

In fact, its provisions allowed a relevant body within the Prosecutor General’s Office, though yet unnamed, to be enshrined in the Constitution.

The new paragraph 2 stated as follows:

The law sets out the rules for the organisation and the powers of the Prosecutor General’s Office, which comprises a college composed of Public Prosecutors elected by and among their peers.

 

The 1989 Constitutional Revision

The Constitutional Law No. 1/89 dated 8 July 1989 contained the 2nd Constitutional Revision and introduced amendments in what concerned the Public Prosecution Service and the Prosecutor General’s Office.204

Apart from the remarks made hereinafter, no other significant amendments were introduced thereto.

Although the systematic insertion was kept, this issue became dealt with by articles 221 and 222.

Article 221 (Functions and statute) stated as follows:

1. It is incumbent on the Public Prosecution Service to represent the State, to institute criminal proceedings, to defend the democratic Rule of Law and the interests laid down by the law.

2. The Public Prosecution Service has its own statute and autonomy under the law.

3. The Public Prosecutors are accountable magistrates subject to a hierarchy, and they may not be transferred, suspended, retired or removed from office unless otherwise provided for by the law.

4. The appointment, assignment, transfer and promotion of the Public Prosecutors and the undertaking of disciplinary action are incumbent on the Prosecutor General’s Office.

Article 222 referred to the Prosecutor General’s Office:

1. The Prosecutor General’s Office is the highest body of the Public Prosecution Service, the composition and powers of which are laid down by the law.

2. The Prosecutor General’s Office is presided over by the Prosecutor General and it comprises the High Council of the Public Prosecution Service, which is composed of members elected by the Assembly of the Republic and members elected by and among the Public Prosecutors.

 

The 1997 Constitutional Revision

The fourth Constitutional Revision had an obvious impact on the structure of both the Public Prosecution Service and the Prosecutor General’s Office.

Due to a renumbering of the basic text, articles 219 and 220 became applicable thereto.

As for the functions and statute, article 219(1) reads as follows:

The Public Prosecution Service is responsible for representing the State and defending the interests laid down by the law, as well as for participating in the enforcement of the criminal policy as defined by the sovereignty bodies in compliance with paragraph 2 hereabove and pursuant to the law, instituting criminal proceedings guided by the principle of legality and defending the democratic Rule of Law.

As regards the Prosecutor General’s Office, the new paragraph 3 focused on the Prosecutor General’s tenure of office:

The Prosecutor General’s tenure of office corresponds to a six-year term without prejudice of the provisions set forth in paragraph 133(m).

 

The Public Prosecution Service’s Constitutional soundness

If we consider closely the evolution undergone by the basic law, it becomes easy to extract therefrom some of the mainstream ideas regarding the Public Prosecution Service and the Prosecutor General’s Office.

The first idea dealt with the stability achieved in defining their functions. In fact, four primary functions — so to speak — of the Public Prosecuting Service had remained untouched since 1976: the representation of the State, the defence of the interests laid down by the law, the institution of criminal proceedings and the defence of the democratic Rule of Law.

The successive constitutional revision laws did not affect these core functions.

Nevertheless, the 1997 Constitutional Revision made it clear that the institution of criminal proceedings was guided by the principle of legality; in a different level, it granted official character to another function of the Public Prosecution Service: to participate in the enforcement of the criminal policy defined by the sovereignty bodies.

This new mission of the Public Prosecution Service, as clearly stated in the Constitution of the Republic, does not jeopardize its statute or autonomy.

In what concerns the Public Prosecution Service’s statute, the constitutional demand requirement expressed in 1976 reinforced the existence of a universe of magistrates other than that of the Judges. The new text contained all the foundations necessary for an autonomous career, with no particular link with other magistrates’ careers.

From 1989 onwards, another feature of the highest relevance was constitutionally enshrined: the autonomy.

The constitutional legislator used this means in order to reinforce the particular nature of the Public Prosecution Service. By doing so, the legislator protected it from any measures imposed by the common legislator likely to endanger such a value, considering its relevance to the good fulfillment of the functions conferred on it by the Constitution of the Republic.

Since the primitive wording of the constitutional text, the main features of the Public Prosecutors’ career and professional experience have been reaffirmed with a view to establishing their own statute.

Another consolidated fact is the reference to the Prosecutor General’s Office as the highest body of the Public Prosecution Service. The same guarantee is given to the statute of the Prosecutor General of the Republic, whose tenure of office was first limited in 1997.

Finally, a special reference must be made to the fact that the Constitution has been dedicating an increasing attention to the High Council of the Public Prosecution Service.

A first glimpse of a college within the Prosecutor General’s Office —  offered by the text derived from the 1982 Constitutional Revision —  was followed by the specific reference to the High Council of the Public Prosecution Service in the 1989 Constitutional Revision. Mainly due to its composition, this Council acquired a status of self-government.