Preventive Measures – Statement of Identity and Residence, Obligation to Stay at Home, and Pre-trial Detention
Despite the general lack of understanding about the intricacies of criminal proceedings, there is much discussion about preventive measures without a clear grasp of their scope.
Given the obvious need to explain clearly and concisely what these measures are in criminal proceedings, this study focuses particularly on the measures of Statement of Identity and Residence, Obligation to Stay at Home, and Preventive Detention.
Before delving into this explanation, it’s important to note that every individual is considered innocent until proven guilty according to Article 32(2) of the Constitution of the Portuguese Republic (CRP) and Article 11(1) of the Universal Declaration of Human Rights (UDHR).
Coercion – a constraint imposed on someone to do, refrain from doing, or allow something to be done; imposition; (from Latin coactiōne -, “idem,” from coactu -, past participle of cogĕre, “to force; to press”) – [Source: https://www.infopedia.pt/dicionarios/lingua-portuguesa/coa%C3%A7%C3%A3o].Since the investigative phase always begins with a report/suspicion of a crime, the Public Prosecutor’s Office (MP), as the prosecuting authority, has the burden to investigate.
If there are well-founded suspicions of a crime, the individual is designated as a defendant – a status in the process where a person is investigated for a crime, accused, or requested for an inquiry. With the designation of “defendant,” the person formally becomes aware of the criminal proceedings in which they are suspected and may be or will be tried.
The suspect acquires rights (e.g., the right to be assisted by a defender – lawyer – in all procedural acts they participate in, and if detained, the right to communicate with them, even in private) and duties (e.g., to comply with specified evidence-gathering measures as stipulated by law).
In addition, there is a specific duty to provide a Statement of Identity and Residence. Before explaining this measure, which is the least severe of the preventive measures, let’s better understand the definition of coercive measures:
“Procedural measures that, conditioning the liberty of the suspect, aim to ensure their accessibility, prevent the repetition of criminal activity, and achieve certain procedural effects.” – [Source: https://www.ministeriopublico.pt/perguntas-frequentes/medidas-de-coacao].
This definition appears flawed to us because it assumes the suspect’s criminal acts have already been proven – “prevent the repetition of criminal activity.” It’s crucial to understand that these measures are initially intended to ensure the continuation of the legal process, leading it to its conclusion. Only after adhering strictly to this understanding can, we explain the prognosis judgment to be made in the selection of the measure applied, from the least to the most severe.
Statement of Identity and Residence
As previously explained, as a rule, the imposition of any preventive measure depends on the prior constitution of the suspect.
This measure, the least severe because it interferes less with the constitutionally guaranteed rights of the suspect, aims to ensure that the suspect provides an address where they can be contacted for all proceedings, they need to be aware of in the process. This measure is the only one that can be provided before Criminal Police Bodies (OPC).
All other preventive measures are imposed by the judge responsible for jurisdictional acts – the Investigating Judge (during the inquiry and instruction phases) and the Trial Judge during the trial phase.
And it couldn’t be otherwise, given the clash between their applicability and the constitutionally guaranteed rights, e.g., the right to liberty – Article 27, paragraph 1 of the Constitution of the Portuguese Republic (CRP), and Article 3 of the Universal Declaration of Human Rights (UDHR).
Its application must also be guided by the principles of necessity, adequacy, and proportionality, as provided in Article 193, paragraph 1 of the Code of Criminal Procedure (CPP).
Therefore it must be weighed against the need – no less severe alternative is considered sufficient – appropriate to the precautionary requirements that the case demands and proportionate to the seriousness of the crime and the sanctions that may possibly be imposed. That is why, to give a broad and free example, a person who commits the crime of theft of a bottle of water for the first time is not placed in pretrial detention. Even though a conviction is likely, it is not expected to result in a custodial sentence due to factors such as being a first-time suspect, the minimal value of the removed item, and the sentencing framework for the crime in question.
The Obligation to Stay at Home
The primary requirement for the application of this measure, broadly speaking, is to foresee that the application of less severe measures would not be adequate or sufficient.
Conversely, mere indications of the commission of a crime are not enough; the indications must be considered strong.
This measure, due to its impact on personal freedom, is treated similarly to pre-trial detention. However, it differs from pre-trial detention in that its application is based solely on strong indications of intentional crime that carries a potential sentence of more than 3 years of imprisonment.
In addition to the principles already mentioned – necessity, adequacy, and proportionality – it is necessary to assume that failure to apply this measure could contribute to at least one of the following:
- Flight or risk of flight.
- Risk of disrupting the progress of the inquiry or the instruction phase in the process, particularly endangering the acquisition, preservation, or veracity of evidence.
- Risk, due to the nature and circumstances of the crime or the personality of the suspect, that the suspect may continue criminal activities or seriously disturb public order and tranquility.
Therefore, the application of such a measure requires a specific case-by-case evaluation to assess the grounds that warrant it.
Pre-trial Detention
Similar to Obligation of House Permanence, pre-trial detention requires that all other measures are expected to be ineffective, hence it is considered ultima ratio [Lat. ‘last resort/last instrument’].
As a starting point, it is established that individuals’ freedom can only be restricted, wholly or partially, based on precautionary procedural requirements, with the understanding that its application should not be considered if another more favorable measure is sufficient to meet procedural requirements, as stipulated in Article 28(2) of the Portuguese Constitution (CRP) and Article 193(1) of the Code of Criminal Procedure (CPP).
As explained previously, there is a similar treatment between pre-trial detention and Obligation of House Permanence, with pre-trial detention typically requiring an apparent maximum penalty of over 5 years resulting from an intentional crime.
It also adheres to the prerequisites:
- Flight or risk of flight.
- Risk of disrupting the course of the inquiry or instruction phase in the process, particularly endangering the acquisition, preservation, or veracity of evidence.
- Risk, due to the nature and circumstances of the crime or the personality of the suspect, that the suspect may continue criminal activities or seriously disturb public order and tranquility.
Even if the maximum sentence exceeds 5 years of imprisonment, this alone is not sufficient grounds for promoting pretrial detention; a reasoned judgment must unequivocally determine that at least one of the aforementioned risks is present.
Thus, it does not preclude a defendant, even when accused of a crime with a penalty ranging from eight to 16 years (e.g., homicide), from awaiting trial in liberty with the obligation to report their identity and residence, if none of the risks are evident.
Due to its exceptional nature, pre-trial detention always serves as a last resort and should not be applied or maintained whenever less severe measures are adequate to safeguard procedural requirements.
It is within this framework that preventive measures are anchored, not from a punitive perspective, as doing so would undermine constitutional principles such as the presumption of innocence.
Consequently, preventive measures are necessary steps taken to ensure the conclusion of the criminal process, aiming to safeguard the interests of all parties involved with the minimal possible infringement upon constitutionally guaranteed rights, freedoms, and guarantees.
It is precisely at the boundary between the right to sacrifice and the sacrificed right that preventive measures are balanced, initially aiming to ensure that the criminal process reaches its conclusion, either accusing or acquitting the defendant during trial.
