Illegitimacy of the defendant to appeal(?)

Margarida Moutinho Medeiros under the guidance of Dr. Paulo Saragoça da Matta

This paper entitled “ILLEGITIMACY OF THE DEFENDANT TO APPEAL(?) - Notes on the Summary Decision issued by the 5th Chamber of the Lisbon Court of Appeal on 30.09.2024, under Case no. 2413/11.3TAFAR” aims to delve into the legitimacy of the Defendants in criminal proceedings.

Particularly, in proceedings in which the following order of events took place: (i) an order closing the investigation was issued, with a view to partially archive the case file in relation to (but not exclusively) two Defendants; (ii) it was then submitted a Request, by the Assistant, to Open the Investigation (under a pre-trial phase), petitioning for the conviction of these two Defendants for the crimes of corruption and economic participation in trading; (iii) such Request was preliminarily admitted by the Court; (iv) the said Defendants came forward, within the legal time limit, to claim that the Request submitted by the Assistant, which requested the opening of the pre-trial phase regarding these two Defendants, was null and void, and also that the Preliminary Decision admitting this Request lacked the legal necessary grounds; lastly, (v) the Court ruled that these two Defendants lacked legal standing to appeal against that Preliminary Decision, since they can only react against the final decision of the investigation should it be unfavourable to them and, therefore, they (allegedly) lack legitimacy to appeal against one Preliminary Decision that admits such Request (even if it may further result in a decision to indict the Defendants, their subsequent submission to trial and, ultimately, their conviction).

This paper aims to demonstrate that all decisions in criminal proceedings can be appealed, unless expressly stated otherwise, and that Defendants have legal standing to appeal on this type of decisions, as they may see their rights negatively affected (through their indictment, trial and possible conviction in the case), causing them significant harm and jeopardising their own innocence.

The Courts’ assertion that the Defendants lack legal standing violates, without any justification, their constitutional right to appeal, enshrined in Article 32(1) of the Constitution of the Portuguese Republic. Therefore, the Defendants maintain that they have legal standing and an interest in challenging a decision that admits a Request, submitted by the Assistant, that is in itself null and void, thereby asserting their right to defence.