CPP - file:///C:/Users/Robert/Downloads/rights-suspected-persons-country_pt.pdf
Article 91
Oath and commitment
1 - Witnesses take the following oath: “I swear, by my honour, to tell all truth and nothing but the truth”.
2 - Experts and interpreters render the following commitment, at any stage of the proceedings: “I undertake, by my honour, to faithfully perform the duties that are entrusted to me”.
3 - The oath mentioned in paragraph 1 above is taken before the competent judicial authority and the commitment provided for in the preceding paragraph is rendered before the competent judicial authority or criminal police authority, who previously advise the concerned person on the penalties incurred upon refusal or failure to comply therewith.
4 - Refusal to take an oath or to render a commitment is equivalent to refusal to testify or to perform duties.
5 - The oath and the commitment, once taken and rendered, do not need to be renewed in the same stage of the same proceedings.
6 – The following individuals are not bound to take the oath or to render the commitment mentioned in the preceding paragraphs:
a) Minors under 16 years of age;
b) Any experts or interpreters who are public officials and intervene whilst performing their duties.
[Wording of Law 48/2007]
Here is a better result
" a) According to article 92 (2) of the Portuguese Code of Criminal Procedure2
(Código do
Processo Penal, CPP), whenever a person who does not fully understand the language of the
proceedings intervenes, it is mandatory that this person is assisted by a suitable interpreter that
is appointed free of charge, regardless of the knowledge the authority presiding the
hearing/questioning or any other participants in it have of the language the person heard
understands. Interpretation must be provided into the mother tongue of the person who does not
speak Portuguese, and only when not possible into another language that the person fully
understands. This right is not only of the defendant but also granted to any witness and victim.
As defined under article 92 (7) of the CPP, both the judicial authority (defined in article 1 b) of the
CPP – during the investigation stage of the proceedings, the public prosecutor or the examining
magistrate) and the criminal police authority (as defined combining article 1 c) and article 1 d) of
the CPP, and consisting of directors, officers, inspectors and subinspectors and all other police
staff of the police forces to whom a judicial authority or the CPP recognises such competence3
) in
charge shall nominate an interpreter whenever a person who does not speak the language of the
proceedings needs to be heard.
In the case of police questioning, the criminal police authority shall assess the need of
interpretation of the defendant and is responsible for nominating a suitable interpreter. However,
some criminal police authorities, in response to CESIS queries, said that they often request that
the judicial authority (namely the public prosecutor) indicates an interpreter, as the existent local informal lists are not in the possession of these criminal police authorities4 but within courts5
. The
information is therefore shared between these entities in an attempt to find a suitable interpreter.
b) There is no formal mechanism to ascertain if a person is in need of interpretation that the police
can resort to. Criteria is legally determined (article 92 (1) of the CPP), stating that an interpreter
will always be nominated to assist anyone who does not fully understand the language of the
proceedings (regardless of nationality), in every procedural act including the act of being held as
a defendant6
. The evaluation of interpretation needs is therefore empirically made by the police
officer. Nationality is considered an indicator and criminal police authorities’ practice7
is of asking
if the defendant wants the presence of an interpreter. The guidelines provided in the training of
police officers in all interviewed criminal police authorities is that, in case of doubt, an interpreter
shall be appointed, unless the defendant states that he or she is not in need of one, and that
statement needs to be written in the record of questioning, which is signed by the defendant..
In addiction, the presence of a legal counsel8
is mandatory for these defendants for any
participation in the proceedings (as determined by article 64 (1) d) of the CPP), except for the act
of being hold as a defendant (and other prior pre-procedural acts). However, any person who is held defendant will necessarily be put under statement of identity and residence9
. This is a
coercive measure that, contrary to all others, does not need to be ordered by a judge but is instead
by the public prosecutor or criminal authority police and is mandatory for every person that is hold
as a defendant. And it is in fact a constinuous act to that of holding someone as a defendant, for
which the presence of a legal counsel will again be mandatory if the defendant does not fully
understand the language of the proceedings10
.
In sum, unless it is obvious that the person does not understand the language at all, the police
practice seems to be that of asking if the defendant wishes to be assisted by an interpreter.
Training provides indication to name an interpreter everytime there is any doubt of the person’s
understanding of Portuguese. There is no checklist or other objective mechanism available other
than the criteria set in the law.
c) The State bears the cost of interpretation within the proceedings and at any stage. Article 162
(1) of the CPP ex vi article 92 (8) of the CPP, establishes that the authority that appointed the
interpreter shall be in charge of determining the amount of payment due. The exact amount is
determined considering the tables approved by the Ministry of Justice or, whenever lacking,
considering the fees normally paid for the same type of service (article 162 (1) of the CPP). This
decision (payment to the interpreter) can be appealed or, in the case of decision by the criminal
police authority or the public prosecutor, subject to hierarchical complaint (article 162 (3) of the
CPP).
Somewhere else in same document "b) Do translators and
interpreters have to be
listed in
databases/registers for
their services to be used?
In other words, is
membership/registration
mandatory?
No These lists are not official and there are no requirements for an interpreter or
translator to be included in such lists other than being sworn interpreters or tranlators
(as established in article 91, paragraph 2 of the CPP). Also the law does not
distinguish between interpreters and translators, as it was thought for needs of
interpretation while intervening in procedural acts (when heard by an authority).
These are informal lists and not every court has one, therefore it is also not mandatory
to be a part of it to operate as a judicial interpreter or judicial translator. These lists
include both professional translators and interpreters as well as amateurs83
.
Both the PJ and the SEF mentioned that experience with these interpreters and
translators has allowed for the selection of which interpreters and translators stay on the list, based on their behaviour when providing these services (qualifications,
experience and ethical conduct).
file:///C:/Users/Robert/Downloads/rights-suspected-persons-country_pt.pdf
