Portuguese Criminal Sentencing and the Principle of Free Evaluation of Evidence - Personal Truth and Consequences

• In Event: Sentencing 2. Legal and Extra-Legal Considerations in Judicial Decisonmaking

Abstract

The separation of powers is one of the unavoidable liberal legacies of today. Due to its constitutional provision and social consolidation, one of the guarantees of the Democratic Rule of Law that gives us greater sense of security is that the judicial power remains impartial, and separate, both from the legislative and the executive, only owing obedience to the Law and Constitution.
However, we cannot forget that judges are people, therefore not devoid of political, religious and moral views, naturally having social convictions, sometimes not compatible with the intended independence of the judiciary. But despite this, they must remain impartial in the face of the specific case and must decide, not in accordance with those convictions, but with the law and the evidence brought to the case.
The criminal decision must be seen as the ex-libris of the criminal procedure, devoid of subjective interpretations and with a transposition of the evidentiary assessment, which must not offend the legal order and society as a whole, despite one of the pillars of Portuguese criminal proceedings being precisely the free assessment of evidence, as provided for in article 127 of the Code of Criminal Procedure.
However, free evaluation of evidence does not mean subjective interpretation, but interpretation in accordance with criteria of reasonableness that does not offend others, under the penalty of society being faced with a decision that is, in some way, unconstitutional because it violates the trust placed in judges/courts as administrators of justice.
With this work, we intend to analyze the unavoidable legal and statutory criteria of a criminal decision, corroborating our position with the dominant doctrine at a national and European level, comparing them with rulings from the Portuguese Courts of Appeal where precisely questions were raised around the Court's reasoning and conviction, generating nullity of the first instance decision.

Author

• Sara Leitão Moreira, Coimbra Business School