The Public Prosecutor's Office is an organ of the administration of justice, which is also responsible for carrying out criminal proceedings guided by the principle of legality (as opposed to the principle of expediency) - see Article 219(1) of the Constitution of the Portuguese Republic (Decree of April 10, 1976), Article 2 and Article 4(1)(d) of the Statute of the Public Prosecutor's Office (Law no. 68/2019, of August 27).
According to the Code of Criminal Procedure (C.P.P.) and in the aforementioned context, the Public Prosecutor's Office is particularly responsible for “Receiving denunciations, complaints and reports and assessing the follow-up to be given to them”, “Directing the investigation” and “Bringing charges and effectively sustaining them in the investigation and trial” - see Article 53(2)(a), (b) and (c) of the C.P.P..
As for the legitimacy of the Public Prosecutor's Office, article 48 of the C.P.P. states that the Public Prosecutor's Office has the legitimacy to promote criminal proceedings, with the restrictions set out in articles 49 to 52 of the C.P.P.
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Thus,
Specifically, and without elaborating too much on this first part, we can say that, for the purposes of criminal proceedings, crimes are distinguished between 1) public crimes 2) semi-public crimes and 3) private crimes.
With regard to the first - public crimes - it is enough for the Public Prosecutor's Office to have knowledge of the facts in order to prosecute them.
As for semi-public and private crimes, in order for the Public Prosecutor's Office to be able to prosecute them, it is necessary for the offended party or another person with legal standing to do so to bring the matter to the attention of the Public Prosecutor's Office (or any other entity legally obliged to do so) and to express their desire to do so - in other words, it is necessary for them to file a “complaint” - see Article 49(1) and (2) of the Criminal Procedure Code.
In turn, semi-public and private crimes are distinguished from each other by the fact that, in private crimes, it is still necessary for them to be an assistant and file a private prosecution, thus determining a more intervening position in the process. - cfr. no. 1 of art. 50 of the Criminal Procedure Code.
It should be noted that, according to the provisions of article 69 of the C.P.P., the assistants have the position of collaborators with the Public Prosecutor's Office, and are responsible for, among other things,
“a) Intervene in the investigation and pre-trial proceedings, offering evidence and requesting any steps that may seem necessary, and to be aware of any orders that may be issued in relation to such initiatives;
b) To bring charges independent of those brought by the Public Prosecutor's Office and, in the case of proceedings dependent on private charges, even if the Public Prosecutor's Office does not bring such charges;
c) To appeal against decisions that affect them, even if the Public Prosecutor's Office has not done so, having access to the essential procedural elements for this purpose, without prejudice to the regime applicable to the secrecy of justice.”
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When the accused dies, in principle - and with a few exceptions (e.g. Article 127(3) of the Penal Code) - the criminal proceedings will be extinguished, because according to Article 127(1) and Article 128(1) of the Penal Code, “Criminal liability is also extinguished by death” and “the death of the perpetrator extinguishes both the criminal proceedings and the penalty or security measure”,
But what happens when the holder of the right to complain dies? What happens?
According to Article 113(1) of the Criminal Code, “When the criminal procedure depends on a complaint, the offended party has the right to lodge the complaint, unless otherwise stipulated, considering as such the holder of the interests that the law especially wanted to protect with the incrimination”.
In the event that the victim dies without having filed a complaint - or having waived this right - the right to file a complaint belongs to the following people, as long as they did not participate in the crime, and regardless of whether they did so jointly or alone:
“(a) the surviving spouse who is not legally separated or the person, of the other or the same sex, who lived with the offender in conditions similar to those of the spouses, descendants and adopted persons and ascendants and adopters; and, failing that
b) Siblings and their descendants.”
- see Article 113(1) and (2) of the Civil Code.
On the other hand, in the case of a private crime (or, even if this is not the case, if the complainant so wishes), Article 68(1)(c) of the Criminal Procedure Code states that an assistant may be constituted if the victim dies without waiving the complaint,
“the surviving spouse who is not legally separated or the person, of the other or of the same sex, who lived with the offender under conditions similar to those of the spouses, descendants and adopted persons, ascendants and adopters, or, failing them, siblings and their descendants, unless any of these persons had a hand in the crime;”
If the holder of the right had already become an assistant, a new application must be made by the new holder of the right to become an assistant.
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Thus,
The law requires, on the one hand, that the deceased has not waived the right to complain and, on the other, that the complainant has not participated in the crime.
With regard to waiver, Article 116(1) of the Criminal Code must be taken into account. This may be express (formal or informal) or tacit (through facts from which the waiver is necessarily deduced).
On the other hand, with regard to the legitimacy to exercise the right held by the deceased, any of the elements can exercise these rights, independently of the others in the same “class”.
Siblings and descendants, on the other hand, can only exercise this right if
a) there is no element of the aforementioned Article 113(1)(a); or, if there is,
b) the elements provided for in Article 113(1)(a) have participated in the crime.
As for the time limit for exercising the right to complain, it should be noted that it expires within six months of the death of the offended party.
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Still on the subject of protecting the rights of the deceased, in civil terms,
a) the law protects individuals against any unlawful harm or threat of harm to their physical or moral personality, and, regardless of the civil liability involved, the person threatened or harmed may request the measures appropriate to the circumstances of the case, in order to prevent the threat from being carried out or to mitigate the effects of the harm already committed. - cfr. paragraphs 1 and 2 of article 70 of the Civil Code, and, in turn,
b) “Personality rights also enjoy protection after the death of the respective holder”, with the surviving spouse or any descendant, ascendant, sibling, nephew or heir of the deceased being entitled to request the respective measures mentioned in a). - See Article 71(1) and (2) of the Civil Code.
This protection also applies in the specific cases of the right to a name (see articles 72 and 73 of the C.C.), to a pseudonym (see article 74 of the C.C.), to confidential letters (see articles 75(2) and 75(2) of the C.C.). 75 and 76(2), both of the C.C.), family memoirs and other confidential writings (cfr. art. 77 of the C.C.) and the right to an image (cfr. art. 79 of the C.C.).
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