Constitutional Court splits over domestic violence witness ruling, raising concerns

Portugal’s Constitutional Court has struck down a legal provision that allowed victims of domestic violence to give testimony to authorities before their alleged abusers were formally made suspects.

In a closely divided 3-2 ruling, the panel of judges ruled that the provision ‘violated’ the suspects’ constitutional defence guarantees by preventing them from participating in evidence that could later prove decisive at trial

The decision, first reported by CNN Portugal, centres on the use of what are called statements for future memory (“declarações para memória futura”) — testimony recorded early in an investigation so it can later be used in court, reducing the need for vulnerable victims to relive traumatic events, or even face their alleged abuser.

Defence rights take precedence

The case arose from an aggravated domestic violence investigation in the northern town of Penafiel, where prosecutors sought to record the victim’s testimony before the alleged offender had been formally named as a suspect.

An investigating judge refused their request, arguing that the legal provision permitting the procedure was unconstitutional – prompting the case to be referred to the Constitutional Court.

In its 3-2 ruling, the court found that where there is no obstacle to formally designating an individual as a suspect before taking testimony, excluding that person’s participation places an excessive restriction on defence rights.

The majority held that, without arguido status, the individual cannot appoint a lawyer, prepare a legal defence or provide information that would allow effective questioning of testimony that may later be used at trial.

The ruling was backed by constitutional judges Mariana Canotilho, António José da Ascensão Ramos and Dora Lucas Neto.

Court divided over victim protection

The judgment exposed divisions within Portugal’s highest constitutional court.

Court President João Carlos Loureiro and judge José Eduardo Figueiredo Dias dissented.

In his dissenting opinion, Figueiredo Dias argued that the majority had adopted an overly narrow interpretation of the principle of adversarial proceedings. He maintained that safeguarding defence rights should not come at the expense of undermining vulnerable victims and argued that appointing a defence lawyer for the hearing would have been sufficient to protect constitutional guarantees.

According to CNN Portugal, Loureiro also disagreed with the ruling on the basis that a previous ruling, in 2025, had seen the court accept the collection of testimony before a suspect had formally been designated – concluding that it was constitutional.

Prosecutors fear impact on investigations

This latest ruling has caused concern among public prosecutors responsible who work on cases of domestic violence – a scourge in the country that shows no sign of abating.

They argue that recording victims’ accounts as early as possible is often critical, particularly because victims may continue living with or remain in contact with their alleged abusers – increasing the risk of intimidation or pressure.

Paulo Lona, president of the Portuguese Public Prosecutors’ Union, warned that many victims later become unwilling or unable to repeat their testimony, while domestic violence cases frequently lack independent witnesses because the alleged offences typically occur inside the home.

He argued that the Constitutional Court has given disproportionate weight to suspects’ procedural rights at the expense of victim protection.

In practice, said Lona, investigators may now have to designate suspects at an earlier stage – potentially complicating efforts to prioritise victim protection and the application of bail/ restraining measures.

Pressure on specialist domestic violence units

The ruling comes as specialist domestic violence prosecution units are already facing operational difficulties.

CNN Portugal cited an internal report on the Lisbon Regional Public Prosecution Department (DIAP) describing the specialised domestic violence sections as being in a state of “permanent crisis”.

The units were established in 2019 by the High Council of the Public Prosecution Service to provide faster, specialist handling of domestic violence cases following a rise in domestic homicide cases, including incidents witnessed by children.

However, inspectors reportedly concluded that the system has never been adequately resourced _ citing staff shortages, limited support from the Justice Ministry and difficulties recruiting suitably qualified prosecutors.

According to the report, nearly half the prosecutors assigned to the specialist sections do not meet the expected professional grading for those positions, leaving the service under sustained strain even before this latest ruling.

Source material: Executive Digest