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Abstract



Reflecting on the Portuguese Code of Criminal Procedure: A brief overview on the adversarial structure


We look to our Criminal Justice System and see that it is based on a few essential pillars, such as Law, solid doctrine, trust in our magistrates and, especially, warranties that there will be a due process, no matter what side the major opinion is clinging to. However, sometimes we forget that this beautifully built structure that is our criminal procedure, has its setbacks, namely, evolution in the world of crime, making war on crime more difficult day by day, awareness of certain questions that were never asked before, like the existence of certain rights that were once overlooked. Our participation will focus mainly on this last, so called, problem. Meaning, we will concentrate on the role that the structure of our criminal procedure has on the evolution of the criminal law doctrine and the way it can make us aware of what is being done correctly or is being unjustifiably overlooked. In specific terms, we will try to demonstrate how the adversarial structure of the criminal procedure, as opposed to the inquisitorial structure, has led us to a liable due process, much because of the principle that has been carved in our judicial system, the research principle, which that gives the judge the opportunity to research on his own, not having to rely only on the evidence that is provided by the defense and the prosecutor. However, we will not only point out the advantages of our system, because it is not perfect. Therefore, we will also focus on the rights of the accused and victims, and how they are portrayed in our criminal system, highlighting some topics that need to be looked over, because they may be putting our due process at stake.

Keywords: code of criminal procedure; structure; adversarial system; victim; accused; due process.