As a migrant activist in Portugal, I want to help empower others with the knowledge of their rights and the general legal procedure. I’ve translated existing materials on Portuguese Legal Advice from Fermento and Occupa: Fim do Fossil into this more comprehensive guide. It will detail the arrest process and has a special section on migrant rights around VISAs and residency. I recommend reading the document in full and then searching for any key terms to find what you need.
This document was prepared by volunteer activists who read similar documents from other countries, analysed the law in Portugal and interpreted it according to their own experiences in activism. It serves as support and advice to activists who are going to participate in civil disobedience actions in Portugal. It aims to be an empowering tool, which prepares you and provides all the necessary information to know your rights, use the law in your favour, and not allow abuses by police forces and other institutions.
This document will not encourage you to commit crimes, because that would be a crime in itself. On the other hand, it will also not be a text to dissuade you from taking action for the climate. We recognize that obeying the laws of our conscience can sometimes contradict the laws written by some societies.
Challenging The Legal System
In the context of the climate crisis the legal system is a pillar of support of the current system. In this system, destroying the habitable planet is called business and stopping this destruction is called a crime. That means that laws are written and judges are trained to keep the system as it is. (The same principle applies to the police.) Our bet is that the judges (and the police) will not agree with activists and will not collaborate.
However, during the actions, the arrests, the process in court, in prison and after prison, activists can create social pressure with their attitudes and their words. This will eventually lead to a judge that cannot continue to cooperate with the system they are in. If this happens, it can create a domino effect in the institution itself. The status quo - that is, what is considered normal and expected - will have to change. To that end, ordinary people who have essential functions in the system will have to stop cooperating with the system.
But don't forget: we are talking about a pillar of support for the system that brought us here. This change will take time. Legal Aid in this context is more cognitive and emotional support than technical support.
First, we need to normalize a mentality that gets rid of fear in order to stand upright, with pride of being on the right side of history and to have a strategy to stop the collapse of civilization. The corrupt system will try, from before the action until after the sentence, to make us feel alone and powerless. The main fight in Legal Support will be a struggle between fear and courage.
Secondly, in spite of the formalisms of the courts, the interpretations matter. The countries we call democratic and the countries we call undemocratic have in effect, essentially the same Penal Code (Punishment system). Institutional and governmental attitudes and what society as a whole considers acceptable can change how laws play out in court. If we win, it will not be because something is written in a certain way on a certain piece of paper. If we win, it will be because the new configuration of social power will imply a certain interpretation of the case.
Therefore, telling the truth with courage, calm and openness, will be our main weapon throughout the process. This manual will give you some personal, organizational and technical skills to accompany you on this path.
Before we move on to the technicalities, here is some generic advice on how to proceed and deal with events. It includes a general set of rights that you are entitled to and that under no circumstances can be denied or violated by the repressive forces or any other persons or entities.
- Choosing to be silent: you are under no obligation to talk to the police, and you have the right to remain silent throughout the entire process (except about your identification) - if it is suggested otherwise, remind the interlocutor of this right.
- Avoid obstructing building entrances: in the case of actions involving the occupation of buildings, you should try not to obstruct doors and gates, since such conduct would prevent people not involved in the action from entering and exiting the building or space, restricting their freedom;
- Do not bring any kind of object that could be considered a weapon or any prohibited substance: make sure that in your backpack or pockets you do not have knives (even if they are cutlery), pocket knives, scissors, rocks, etc. or any kind of legally prohibited substance (even if the prohibition does not concern consumption, as is the case with cannabis).
- Bring identification, cell phone (or other means of communication) and any other object that is essential for your well-being: make sure you bring with you your identification (citizen card or passport or driver's license), a means of communication that allows you to call for help and/or inform about your situation (such as a cell phone with battery) and any other objects that you need for health or other reasons (e.g. asthma pumps, medication, etc.).
Rights that cannot be denied to you under any circumstances:
- Right to silence in criminal proceedings;
- Right to access to safe drinking water, adequate food and sanitary facilities;
- Right to legal accompaniment in case of detention;
- Right not to be deprived of liberty without a legally permissible reason
Is Civil Disobedience a Crime?
Next we will introduce you to the various scenarios that can occur in the course of the action. We stress, however, that these are the most extreme situations and the maximum penalties that can be imposed on you. The social and political context, as well as a whole set of aggravating or mitigating factors, always influence the course and outcome of judicial processes. Regardless of the directions your case takes, know that you will always have legal and emotional support - we leave no one helpless or alone.
By definition, direct actions constitute a form of programmed civil disobedience. As such, they fall within the scope of the legal type of crime provided in art. 348.of the Portuguese Penal Code (CP):
1 - Whoever fails to obey a lawful order or warrant, regularly communicated and issued by a competent authority or official, shall be punished with a prison sentence of up to one year or with a fine of up to 120 days if:
(a) a provision of the law provides for the punishment of simple disobedience in the case; or (b) in the absence of a provision of the law, the authority or official makes the corresponding provision.
2 - The penalty is imprisonment for up to two years or a fine of up to 240 days in cases where a legal provision punishes qualified disobedience.
The crime of disobedience is a public crime, which means that no report or complaint to the authorities by a person considered a "victim" is necessary. Therefore, it is enough for the judicial or police authorities to report the incident, or for anyone to do so voluntarily, and the process continues even against the will of the owner of the offended interests.
The orders or mandates whose disrespect can lead to the commission of the crime of disobedience can be varied and depend on the context in which the action takes place. Specifically, Decree-Law 406/74 prohibits "(...) the holding of meetings, rallies or demonstrations with abusive occupation of public or private buildings", adding that holding them constitutes a crime of qualified disobedience. Therefore, in the case of abusive occupation of buildings, the increased penalties apply (because instead of simple disobedience there is now qualified disobedience) provided for in art. 348.cP, presented above.
Even if there are no circumstances that make up any other criminal type, a direct action always involves behaviour that qualifies as the crime of disobedience. That being the case, there will be grounds for identification and possibly arrest - which does not mean that this will actually happen in practice, depending largely on the decisions of the officers on the spot.
Attend an action training.
You should know the layout and objectives of the action and the necessary roles. You must decide what your role will be, how this role fits into the action design, and how this role can help you deal with the climate emergency that you feel inside.
Attend a legal briefing
Each action, by design, runs different legal risks. Since this manual does not tell you to break the law (that would be a crime on our side), on the next pages let's limit ourselves to general behavioral advice which are applicable to any protest action. Therefore, you should participate in a legal briefing before the action. This can be part of a meeting or separately. It can be done in big groups or in small groups. The legal consequences are part of the action. When you are prepared for them, you will be able to better deal with the emotional turmoil of the situation.
This supplementary document can help you expand your knowledge of the Penal Code in Portugal. It is a compilation of the laws that we have seen used in prosecutions around the world against activists. We recognize that many of them have never been used against social and climate justice activists in Portugal.
Cases of special attention
Some procedures and some applicable laws (and also some consequences - legal or practical) will be different for minors, migrants, non-cis and cis people and non-binary people.There is another document prepared by Ende Gelände, on participation of non-cis and non-binary people.
Participation of minors
The law provides for different regimes (intended to have less impact on the person's life) applicable to "juveniles" who have committed acts that may constitute legal types of crime. The age of criminal majority in Portugal is 16 years, but until the age of 21 the "young adult" regime applies. Within the category of "juveniles," the law distinguishes the following subcategories:
- Minors under the age of 12: no sanction of any kind is applied;
- Minors between the ages of 12 and 16: the Educational Guardianship Law is applied, not the Penal Code;
- Young people between the ages of 16 and 21: the Penal Code is applied, but with some relaxations and mitigations.
The regime applicable to young people between the ages of 12 and 16 includes some modifications to the above, so it is important to consider them. First, as far as identification is concerned, if you are unable to produce an identifying document, the police officer should try to communicate with your parents or legal representatives, and can only keep you in a police station for up to 3 hours. Second, as to detention:
- Minors up to 16 years of age can only be arrested in flagrante delicto for acts that qualify as crimes punishable by imprisonment (if it is a crime punishable only by a fine, there can be no arrest);
- Detention can only be maintained if the crime in question is a crime against persons with a maximum sentence of more than 3 years, a crime of another type with a maximum sentence of more than 5 years, or several crimes with a maximum sentence of more than 3 years; otherwise, only identification should take place. Following guardianship proceedings, the following measures may be applied to you:
- Admonition: "solemn warning given by the judge to the minor." ⋅ Economic benefits or tasks in favor of the community; ⋅ Imposition of rules of conduct;
- Impositions of obligations (including obligations to attend training centers, certain courses or orientation sessions, etc.);
- Attendance of free-time occupation programs, psycho-pedagogical guidance, acquisition of personal and social skills...; ⋅ Educational monitoring;
- Internment in an open, semi-open or closed educational center - this measure may only be applied in the case of committing facts that carry high prison sentences and to minors aged 14 or over.
As for young people between the ages of 16 and 18, the law provides for special mitigation, which translates into a reduction of the penalty in case of conviction. Furthermore, the law distinguishes:
- Minors between the ages of 16 and 18: in the case of conduct that carries a prison sentence of less than 2 years, the juvenile protection regime (which we have just presented) may apply alternatively or in conjunction with the general criminal law.
- Adults between 18 and 21: in the case of conduct that carries a prison sentence of less than 2 years, the judge may impose corrective measures, including admonition, imposition of obligations, fines or internment in detention centers.
People who are in Portugal with visas or residence permits must take the following information into account:
- In the event of a conviction (for a crime for which a prison sentence of more than 1 year is foreseen), a residence or temporary stay in the country will be refused, even if the sentence has not been served or its execution has been suspended;
- The temporary residence permit or its renewal will also be refused in case of conviction for a crime for which the sentence is imprisonment for more than 1 year;
- A permanent residence permit can only be granted if during the last five years of residence in Portuguese territory there has been no conviction in a prison sentence of more than 1 year;
- A penalty of deportation from national territory may be applied to non-permanent residents who have been convicted of a crime in excess of 6 months' imprisonment or an alternative fine, or to permanent residents who have been convicted of a crime in excess of 1 year;
- Foreigners residing in Portugal can only apply for Portuguese nationality if they have not been sentenced to a prison sentence of 3 years or more.
Disciplinary power of schools and universities
Schools and universities enjoy disciplinary power, which means that they can apply sanctions to their students when they fail to fulfill the duties assigned to them by law or internal regulations.
In the case of public schools, sanctions of reprimand, suspension, school transfer, and expulsion can be applied. The expulsion measure can only be applied to students of legal age and when there is no other suitable measure.
In the case of universities and other higher education institutions, the sanctions that can be applied are a warning, a fine, temporary suspension of school activities, suspension of school evaluation for one year, and a ban from attending the institution for up to five years.
Create an affinity group
The greatest strength of a movement is always in its collective power.
The greatest weakness would then be isolation and a feeling of abandonment during the action.
To mitigate this risk, you should be part of an affinity group (or create your own).
If this is not possible, you should at the very least make sure you have a buddy, someone who you know who you are always with during the action. Your Affinity Group will be your practical base, emotional and tactical before, during and after the action.
Recognize and analyze your emotions regarding the legal consequences in your affinity group. We are afraid of the climate crisis. This fear does not invalidate our emotions regarding the legal consequences we can face. We advise that in your affinity group you book some time to listen to each other's emotions and understand how you can all support each other.
Give your contact information to the legal team coordinator
The end of the protest is not the end of the legal process. All after-action processes, including the police station and in court, are part of the movement that puts an end to the climate crisis. The main weapon of the system will be the same as always: to isolate you and make you feel alone.
This tactic can already start at the police station, or before if the police decide to put the activists in separate rooms or cells. It will also continue if you receive a letter, addressed to you, with an invitation to appear in court or in an office. These are the moments where it will make a difference to know that more people are thinking about your well-being and are actively working for it. So that everyone is accompanied and that the political fight will continue after the action, you must give your personal information (full name, medical conditions, contact person) to the coordinator of the legal team.
At the end of the action, if all goes well, after you debrief with your Affinity Group you should also inform the legal team of the action so that they too are able to rest easier.
Inform a trusted person
If you see any probability of the action ending with arrest, this will mean spending hours at the police station and in court. (It may also lead to other changes in your life, depending on the conclusion of the process.) This can mean a drastic change in your schedule. You might have to miss an appointment, reschedule events, and you may need help from your friends for practical or other things. You can count on that support if the people around you know about this possibility. Talking to them about this possibility in advance and working out who you can tell will make this transition easier for you. You should not share sensitive information (date, time, place, other activists) about any action with any person that is not part of the action. Even with participants of the action you must follow a safety protocol about what is shared and not shared. However, we advise that a trusted person knows that in that week or in those days you can be detained. That person can be your contact person for a call at the police station.
Watch this tips video before the action.
Climate Action Support Pathway has prepared a video of 3 minutes that summarizes everything you must do before an action with the possibility of arrest. This video explains all the little things you should do in the days before the action. You can see it here - CASP Video 1 - Preparation for Arrest.
During the Action
In a world that doesn't make sense, where companies profit from the destruction of civilization, action is probably one of the few moments in which we construct some meaning. Actions are full of energy, which unfortunately can lead to mistakes which result in unforeseen and unnecessary legal consequences. We advise you to find physical exercises that help to keep you calm. In that moment remember why you are doing the action. This will be the guarantee that it achieves its goals.
Ensure the safety of all people
Climate activism is for a secure future for all people. The action must be designed to eliminate the possibilities of causing harm to other people. You should also pay attention during action to reduce any risk of safety of your own and others' actions. A proactive attitude to protect all the people around you will reduce the negative reactions of people affected by the action. It can also be useful for our appearance in the media and in your defense in court.
Be careful with communication
Before, during and after the action, you must be careful with
- what you communicate (content)
- with whom you communicate (people)
- and how you communicate (devices).
In your Affinity Group you should analyze the risks (not only for you but for all activists) and make agreements about communication. If there are coordinators of the action, you must ask what the security protocol is. You can also ask for technical advice or research online. Right now, Signal with disappearing messages seems to be the safest form of internal communication (even safer than talking face-to-face and without cell phones). Keep in mind that nowadays there are no forms of secure communication. There are only safer ways than others.
You should also be careful about what you say about an action in public or in media communication. If you say you did civil disobedience on TV then it may be difficult to argue in court that there was no disobedience and that it was a peaceful demonstration. If the logic of the action does not require disobedience as an integral part, you may not want to highlight that.
Interactions with police officers
We always advise to opt for silence. The role of police officers is essentially to stop the disruption, ideally before it starts. The Police are also a supporting pillar of the system. Therefore, everything that we said in the first section (Legal Support in the context of climate crisis) applies here as well. As it is known publicly, the extreme right is well-integrated in the Portuguese police. It will be the police officers who will write an account of the action and they will be the ones to testify against the activists. (If the activists had done nothing wrong, the police intervention would not be justified. To justify it, they naturally denounce the activists). Everything you say or do could be part of a possible future prosecution. You have nothing to gain by talking to the police. If you find that it would calm you down, you might consider limiting yourself to repeating a predefined phrase during the action (depending on the action). In case of identification, police officers identifying you must describe why they are identifying you (what did you do?) and why that justifies an identification (what is the law they think you violated exactly?).
You can read more about interactions with police here.
In accordance with art. 250.pursuant to Article 8 of the Code of Criminal Procedure (CPP), anyone who is in a public place may be asked to identify themselves whenever there are reasonable grounds to believe that the person to be identified may have committed a crime. Police officers should identify themselves, explain the circumstances that led to the request for identification, and indicate which means of identification are permitted. You can identify yourself in the following ways (in order of preference):
- Presentation of citizen card or passport;
- Presentation of an original document or a certified copy of another document that contains your full name, signature and photograph (e.g. driver's license);
- Identification by a person over the age of 18 in possession of proper identification that confirms your identity;
- Go, with the agent(s), to the place where your documents are; 5. Referral to the nearest police station, where you will stay for as long as necessary for identification (for a maximum of 6 hours) - this option should only be applied as a last resort.
During the identification process, police officers may ask you for information regarding the alleged crime and evidence. You are not obligated to give any information, but if it is intended to open an investigation against you, the request for information must be stopped immediately so that you can be arraigned first. You should inform them of this if they insist on asking you questions that could harm you in a future lawsuit. You will also have the right at all times to contact a trusted person - preferably someone in the organization.
In addition to being asked for identification, you may also be subjected to a search. Searches are allowed whenever police officers believe there is good reason to believe that you have objects on you that may be used as evidence. In case of detention, you will be searched in order to check whether you are carrying objects with which acts of violence can be committed.
If you want to open an inquiry into the facts that occurred (since you witnessed at least the crime of disobedience), the police officers may detain you for the first inquiry and application of precautionary measures. In this case, it is extremely important to know your rights and duties, to cooperate, and to try to stay calm.
The first point to keep in mind is that you can only be in detention if you have been charged. This formality aims to assure you of all your rights legally enshrined procedural rights - such as the right to be presumed innocent, the right to an attorney, and the right to silence - in order to avoid abuses and manipulations of the criminal process. Therefore, it is important to fix that:
- You cannot be held in detention at a police station if you have not been charged;
- The constitution as a defendant is a guarantee of your rights, working in your favor. It in no way means that you will be accused of any crime, nor convicted. Being considered a 'defendant' is a procedural advantage and should not be a cause for anxiety or fear.
Detention is an exceptional situation, since, according to the Constitution of the Portuguese Republic and the various Human Rights Charters that Portugal is bound to, no one can be deprived of their liberty without having been previously tried and convicted by a court of law. Thus, it is a provisional measure and has a specific purpose; after the legal time limits have passed, or when the objectives allowed by law have been met, you will always have to be released. The purpose of arrest in flagrante delicto (as will eventually be the case), is the application of the precautionary measures deemed appropriate and the presentation for questioning, for the provision of statements.
All of the defendants are subject to a restraining order of identity and residence. Again, this procedural act should not cause you any anguish, nor should it be associated with any kind of outcome of the criminal process - all perfectly innocent people who have already been charged in Portugal were also subjected to a term of identity and residence. Since you will have already presented identification, it will remain to give notice of your residence (or place of work or other domicile of your choice), to which any correspondence and judicial notifications will be forwarded.
The first interrogation will take place, at the most, within 24 hours or 48 hours, depending on whether it is judicial or non-judicial interrogation, respectively - the former is conducted by an investigating judge, the latter by a public prosecutor. In this first interrogation, you will be asked your name, surname, place and county of birth, date of birth, marital status, occupation, residence, place of work, and these questions must always be answered truthfully (under penalty of criminal liability). You can choose not to answer any questions other than these. In addition, you should not make any statements without a lawyer being present - you must have a lawyer present during questioning, so no one can ask you questions without your lawyer being present.
During the entire time you are in custody - and during the possible remainder of the judicial process - you have the right to remain silent and not to incriminate yourself. So you can always refuse to make a statement, even if the authorities present tell you otherwise. In addition, you will also have the right to inform a trusted person - family member or other - of your situation. In principle, you can do it yourself, via a phone call. However, if the police feel that such direct contact is detrimental to the process, they may refuse the call request and choose to inform your trusted person for you. This call should ideally be made to the lawyer or someone else in the organization who can expedite whatever is needed.
You will be presented with several documents while in detention, which you should read carefully and then sign. They are:
- Defendant's constitution (rights) document;
- Term of identity and residence;
- Information about legal aid;
- Declaration of non-intention to make statements (in case you declare that you do not want to make any statements).
It is also important that you keep in mind all the rights you have as a defendant (art. 61.º CPP):
- The right to be present at all procedural acts concerning you;
- Right to be heard by the court or investigating judge when they are to make decisions that affect you personally; - The right to be informed of the facts alleged against you before making any statements;
- Right to silence (not to answer questions you are asked about the facts you are accused of);
- The right to appoint an attorney or to request the appointment of an advocate (in case you don't have an attorney);
- The right to offer evidence and to request inspections;
- The Right to appeal against decisions that are unfavorable to you.
After the first interrogation and the completion of the identity and residence statement, you should be immediately released.
Arrest process / At the police station
If you manage to keep your cool in spite of all emotions until detention, detention can be a quiet or a hectic place. A detention and identification can take hours and most likely you will not have access to your things during this time. Therefore, detention can be an opportunity to close your eyes, rest and connect with what is alive inside you. However, some difficult emotions can also start to arise and you may feel anxious, nervous or stressed. These emotions are valid and also show that you are alive. So you may want to think about exercises that can help calm you down in that situation.
You can watch these two videos about the process of detention and about a police station made by the Climate Action Support Pathway. (Keep in mind that there are parts very contextual to England in the videos)
CASP Video 2 - The Arrest Process
CASP Video 3 The Police Station
You will have the right to make a phone call.
Contact someone who knows what to do, ideally a lawyer or someone from the legal team. You will be asked to make statements by the police. Never make statements unless you are accompanied by a lawyer who specifically recommends it. In doubt, you should state that you do not intend to make statements. You will be presented with a document that you must sign to identify that you do not intend to provide statements.
It is likely that you are then made a defendant. This is a normal procedure. After stopping you, they have to charge you with whatever is on their paperwork and so they will. That does not mean in any way that you will be charged of any crime, nor convicted. If that does happen, you will be presented with three documents (information about your rights as a defendant, terms of identity and residence, and information about legal support). You should read carefully through these documents, paying special attention to the elements of identification which you must sign. There were cases where the cops gave more documents for the detainees to sign.
You should read everything calmly. If everything sounds too formal and scary, remember that they are designed to produce this effect on you. You can ask them why they ask you to sign that. Ideally, you should not sign other papers without first talking to your Lawyer. If you are given notice to appear in court, you should always attend (accompanied by a lawyer, preferably). There have been cases in which the activists were taken directly to the court. There have been cases where they were invited to appear in court the next business day. There have also been cases where they received a letter at home to invite them to court. Those under 21 years of age, foreigners, illiterate or people who are hard of hearing or mute always have to be accompanied by a lawyer, even at the police station. They will be called by the police themselves if you do not have your own lawyer.
At the police station:
- You can be separated by gender and the separation will be binary, you may want to prepare yourself mentally and look out for your buddies;
- It is possible that you will be searched, in principle by a person of the same gender as you;
- you have the right to vegan food and other dietary restrictions;
- Try to make a mental record of all the events and write them down afterwards for future legal procedures.
- Note practices by police officers which could be a reason for complaints.
The constitution of a defendant leads to the opening of an Inquiry - a period of investigation that is carried out by the Public Prosecutor's Office. The Inquiry normally ends with an order of indictment or dismissal, on which depends the continuance or termination of the case.
Alternatively, there may be a provisional suspension of the proceedings, at the request of the defendant or by decision of the Public Prosecutor's Office of its own motion. Such means that there is neither an indictment nor a dismissal, and the case is suspended for a period of up to two years, after which the case is dismissed without the possibility of reopening. Suspension is allowed in return for compliance with certain rules of conduct, such as: attending certain programs or activities; performing services in the public interest; etc. This is usually where measures such as community service are applied.
Under the applicable legislation, court decisions imposing penalties are subject to entry in the criminal register. Therefore, there is only a criminal record if, at the end of the entire procedural process (investigation, instruction, trial), there is a conviction and application of a prison sentence or fine (even if there is a sentence waiver or substitution of sentence, or even a sentence suspension). There will no longer be any criminal record in case of dismissal of the case, of decision not to prosecute, of acquittal or even in case of provisional suspension of the process. Similarly, educational guardianship measures are also not subject to criminal record.
In Portugal, the criminal record is not for life, but is cancelled after a certain period of time, depending on the severity of the sentence imposed. For prison sentences of less than 5 years (as are all those provided for in this Manual), final cancellation can occur after 5, 7 or 10 years. And for fine penalties, the definitive cancellation occurs after 5 years. Also the decisions that have determined the substitution of the penalty or its dispensation give rise to the definitive cancellation of the registration after 5 years.
Even before the definitive cancellation, the criminal record may be provisionally cancelled for the purposes of employment, public or private, or for exercising a profession or activity in Portugal. This cancellation can occur at any time, by decision of the court, provided the following conditions are met:
- The sentence imposed has already been fully served or extinguished;
- The person concerned "has behaved in a way that can reasonably be assumed to have been readapted"; and
- The party concerned has fulfilled its obligation to compensate the offended party.
Create a legal team
In other countries there are bar associations and lawyers who assemble and maintain legal teams for the actions. In Portugal this does not exist yet. As a rule, there should be a legal team that accompanies the preparations for the action. This legal team may have elements that are visible to you (like those who made the clarifications in the legal briefing) and invisible to you (people who thought about the legal aspect of the action and the communication, who put together the legal briefing).
The Team can be very small. After the action, you will need to renew the legal team. Firstly, the legal team should include the defendants and their lawyers. Secondly, your impact will continue after the protest: your attitude and your strategy will influence what will happen to other people in the following actions. In this sense, it will be needed to create a legal strategy, a political strategy and finally a communication strategy that combines the two.
There may be movement-friendly lawyers who can offer legal support pro bono. You must be prepared, mentally and emotionally, so that if this is not the case, you will have to pay for your defense. We must recognize that, even in a closed case, the working time for a lawyer is several dozen hours. In addition, the process itself can have associated costs, particularly if you are convicted. With the team legal, you may also want to build a financial strategy.
After Action Communication
The internal communication after the action should follow the same security protocol as during the action. Communication to the public and the media should be driven by the common strategy that you all establish with the legal team.
Climate actions are not the usual "crimes" which judges are used to. Continuing to tell the truth during court and out of court can help you to deal with administrative stresses that are designed to feed the sense of alienation. It may be possible to suspend the process in exchange for community service. Your sentence may also be suspended for you and/or turned into community service. Discuss in the legal team the probabilities of the possible scenarios and how people feel in relation to each scenario. Sometimes, it may be possible to win the technical argument (e.g. the Ministry Public Prosecutor's Office charged that there was an order to disperse disobedience but actually there weren’t conditions for this order to be given in context of the action). In general, it is unlikely that this happens. When in doubt, read the first section of this manual.
The Constitution of the Portuguese Republic enshrines Right of Resistance (Article 21), the Right of assembly and of demonstration (Article 45) and the right to the Environment and quality of life (Article 66). The Portuguese Basic Law of Climate states that "Everyone has the duty to protect, preserve, respect and ensure the safeguarding of the climate balance, contributing to the mitigation of climate change" (Article 7). You may want to think about what these articles can mean in the context of the climate emergency and concretely in your action.
You may also want to read about the principle of necessity and consult your lawyer. (Climate Necessity Defense)
Common Types of Related Crime
According to what has already been said, a direct action implies, by definition, acts of disobedience. However, depending on the type of action in concrete, other types of crime can be called for by the Public Prosecutor's Office. In particular, the following may be alleged:
- Introduction in a place closed to the public (art. 191.cP): "Whoever, without the consent or authorization of the lawful person, enters or remains in patios, gardens or fenced-off spaces attached to housing, in boats or other means of transport, in a fenced-off place intended for public service or business, transport service or the exercise of professions or activities, or in any other fenced-off place not freely accessible to the public, shall be punished by imprisonment of up to 3 months or a fine of up to 60 days."
- Damage (art. 212.cP): "Whoever destroys, in whole or in part, damages, disfigures or renders unusable another's thing or animal, is punished with a prison sentence of up to three years or with a fine."
- Qualified damage (art. 213.cP): "Whoever destroys, in whole or in part, damages, disfigures or rendered unusable:
- Thing or animal intended for public use and utility or for public bodies or services; (...)
- Thing belonging to the cultural heritage and legally classified or in the process of classification; or shall be punishable by a term of imprisonment of up to five years or a fine of up to 600 days."
- Usurpation of immovable property (art. 215.cP): "Whoever, by means of violence or serious threat, invades or occupies the immovable property of others, with the intention of exercising property rights, possession, use or servitude not protected by law, sentence or administrative act, is punished with a prison sentence of up to 2 years or with a fine of up to 240 days, if a more serious penalty is not applicable in view of the means used."
- Aggravated Injury (art. 181.cP + art. 184.cP): "Whoever reviles another person by imputing facts to him, even under suspicion, or by addressing him words, offensive to his honor or consideration, is punishable by imprisonment for up to 3 months or a fine of up to 120 days.
- Illicit recordings and photographs (art. 199.cP): "Who without consent:
- record words spoken by another person and not intended for the public, even if addressed to him; or
- Use or allow the use of the recordings referred to in the previous paragraph, even if lawfully produced;
- shall be punishable by a term of imprisonment of up to 1 year or a fine of up to 240 days."
- Participation in a riot: "1 - Whoever takes part in a riot during which violence is collectively committed against persons or against property is punished with a prison sentence of up to one year or with a fine of up to 120 days, if a more serious penalty is not applicable under any other legal provision.
- If the agent has provoked or directed the riot, he will be punished with a prison sentence of up to 3 years or with a fine.
- The agent is not punished if he has withdrawn from the riot by order or admonition of the authority without having committed or provoked violence." -Disobedience to an order to disperse a public meeting (art. 304.cP): "Whoever does not obey a lawful order to withdraw from a public meeting or gathering, given by a competent authority, with a warning that disobedience constitutes a crime, is punished with imprisonment of up to 1 year or with a fine of up to 120 days."
This supplementary document can help you expand your knowledge of the Penal Code in Portugal. It is a compilation of the laws that we have seen used in prosecutions around the world against activists. We recognize that many of them have never been used against social and climate justice activists in Portugal.
The main problem with prison is that climate activists, statistically from the most privileged sectors of society, do not think about prison. However, you can be imprisoned by any protest action, even if the probability is very low. Historically, we identify at least three scenarios in social movements in which this can happen:
- The activists make a mistake during the action that causes serious damage, leading to unforeseen legal consequences.
- An undercover cop can cause unforeseen damage to the action, harming all the activists.
- A militant right-wing judge gives a drawn-out interpretation of the law to condemn the activists in an exaggerated manner.
These are unlikely but not impossible. The more disruptive the action, the higher the probability. We don't have a guide yet to get you ready for Portuguese prison, but we suggest you read Preparing for Prison Briefing, prepared by Rebels in Prison Support. (Remember that most of the technical information is specific to the United Kingdom and does not apply in Portugal). For example, you may want to record a video of testimony before the action, to be published in the case of the imprisonment.
Taking a more focused summary, a building occupation action may lead mainly to the verification of the following types of crime:
- Qualified disobedience " simple disobedience is transformed into qualified disobedience by considering there to be "abusive occupation of public or private buildings";
- Introduction into a place closed to the public " this crime can be invoked if school and university buildings are not freely accessible; - Usurpation of immovable property " if the occupation is carried out through the use of force or the threat of force, the introduction into a forbidden place becomes usurpation;
- Participation in a riot " depending on the way relations with the police forces unfold, the police may consider it to be a matter of "disorderly and disobedient agitation by a group of people who show themselves capable of committing acts of violence that endanger security, public peace, and the integrity of persons and property.
Private Security Involvement
When an action involves the introduction of activists into non-public or autonomously managed spaces, such as the premises of companies, schools, or university campuses, there may be intervention by private security. As for private security personnel, you should keep in mind the following rules:
- Private security guards cannot demand your identification or make arrests;
- Private security guards must respect your rights and freedoms and cannot use force;
- Private security guards are required to identify themselves if requested to do so;
- Police authorities are likely to be called by private security teams, as they are required by law to make such contact if they see any crime being committed.
As for graffiti and stencils, in addition to the fact that this can be a crime of damage or qualified damage (if the target is a public building or a building where public services operate), the authorities may consider it a simple misdemeanor, according to Law No. 61/2013.
Misdemeanors are illegal acts that are not serious enough to be considered crimes. Therefore, instead of being punished (imprisonment or a fine) by a court, they are punished with a fine by an administrative body. The difference between a fine and a fine, both of which involve the payment of a monetary value, is that a fine, unlike a fine, can be converted into a prison sentence and leads to a criminal record, among other things. The fine, on the other hand, cannot be replaced by imprisonment and does not generate a criminal record.
A graffiti or stencil can be considered a crime or a misdemeanor depending on its effects on the building: there is only a damage crime if a
permanent damage to the building or object, and a mere misdemeanor exists when the building or object only gets dirty (not permanently).
Considering that there is only a misdemeanor, various types of fines can be imposed:
- Light: graffiti/stencil is "reversible by simple removal, cleaning or painting" - fine between €100 and €2,500;
- Serious: graffiti/stencil stains "in a prolongedmanner", but is "reversible by simple cleaning or painting" - fine between €150 and €7,500; c) Very serious: graffiti/stencil stains "in a permanent or prolongedmanner", "putting at serious risk the restoration [of the building], due to the definitive or irreversible nature of the means used for its alteration" - fine between €1,000 and €25,000.
The inspection of this type of action is the responsibility of the Municipal Police, and the decision of the process is the responsibility of the City Council. It should also be noted that:
- The objects and materials used (e.g. sprays, paints, brushes, etc.) can be seized;
- There may be suspension of the fine, which may be conditioned to the fulfillment of certain duties, such as providing work for the community or cleaning the buildings.
- In case the activities are practiced by minors, the following special aspects should be taken into consideration:
- All minors: legal representatives (parents, grandparents, or other caregivers) are notified;
- Minors considered to be at risk: the competent protection commission is notified.
- The costs of removal are always borne by the person responsible.
With regard to the above types of crime and prosecution, we stress that they are presented here for preparation only. There is nothing to say, in advance, that the police and/or the Public Prosecutor's Office will consider any of this conduct to be at issue. Moreover, the penalties presented are the maximum penalties provided, applied only in cases of extreme severity. As mentioned, there is a whole system of mitigating factors, as well as informal mechanisms (such as the provisional suspension of proceedings, which is a very important escape valve from the system), that operate throughout a criminal trial to mitigate the consequences for the accused. Thus, we cannot but reinforce the following points:
- Civil disobedience is a political weapon - it is intended as a strategy to test the limits of laws and introduce resistance into the system.
- Actions are designed to maximize the probability that nothing serious will happen.
- The actions are carried out in the context of an activist cooperative network of total solidarity, so that interpersonal care is as important as the action itself;
- All of what we have presented to you is part of the worst case scenario, and is not at all a necessary scenario, nor a highly probable one (especially for those who have no prior record and cooperate with the criminal police agencies, the prosecution and the court).
Finally, we reinforce the following advice:
- Identify yourself whenever asked, remain calm, and cooperate politely and patiently;
- Avoid permanently damaging or soiling any objects or buildings - in the case of graffiti and stencils, the ideal is to use paints that can be washed off, even if only after some time;
- Do not have any objects on you that could be considered weapons (e.g. pocketknives, tools, etc.)
- Try to address police officers in a calm and respectful tone; ➢ Do not film or photograph people who expressly ask you not to do so (including police officers - unless their conduct is itself unlawful and abusive and the images are intended to document that);
- Don't directly restrict the freedom of other people who are on site - in the case of building occupation, it is essential not to prevent anyone from leaving against their will;
- Read the documents that are presented to you during a possible arrest carefully (take your time!) and sign only 1) the statement of defense, 2) the statement of identity and residence, 3) the information about legal aid, and 4) the statement that you do not want to make statements (if presented to you);
- You always have the right to remain silent - don't allow yourself to be made to believe otherwise;
- You always have the right to have attorney assistance - claim that right if you feel it is not being respected;
- If the Public Prosecutor's Office proposes the provisional suspension of the proceedings, calmly analyze the case and clarify all doubts with your lawyer. Suspension can only happen if you want it and give your consent - it's your choice!
Following this advice whenever possible, you must never allow violations or abuses of your rights, nor tolerate degrading or discriminatory treatment. There is no time and no circumstance when your dignity as a human person can be legitimately challenged, and no circumstance when your fundamental rights and your human rights can be disregarded. To these rights are added all the procedural rights provided in the Code
Portuguese Criminal Law, of which you are the holder from the moment you are made a defendant. If any of these rights are called into question, contact the lawyer or a person from the organization as soon as possible. There are reactionary means available to stop any kind of abuse and to hold the perpetrators accountable, regardless of their status or official position.
Finally, we can assure you that in the event of a lawsuit, a procedural strategy will be developed that is appropriate for your specific case. This strategy will frame the actions taken in the current climate and ecological crisis and expose the goal of redirecting the community's focus and pressuring those responsible to act. Although being institutions that tend to be conservative in their actions, courts can break with the status quo. Judicial activism by the courts is increasingly a reality, so we will not fail to employ all the most innovative and ambitious legal strategies we can devise.
Thinking about law and courts is scary, because these were designed to scare ordinary people. Laws that say you can be "punished with a prison sentence of up to N years" are themselves the protection of private interests by discouragement, although they actually present the worst conclusion possible for your case.
When we decided to write this manual, 35 million people in Pakistan were left without homes because of the floods.
When we were writing this manual, a 55-year-old woman died in the Lisbon floods.
We are frightened by what is in front of our eyes. We are scared of what is to come if we leave the system to continue. True global and intergenerational mutual support happens by being side by side before the actions, during the actions and after actions. We want to believe that this manual serves that purpose.
Documents referred to in this Guide
- Legal Manual for Disobedience Civil
- Movement Legal Support Manual "End Fossil - Occupy!"
- CASP Video 1 - Preparation for Arrest
- CASP Video 2 - The Arrest Process
- CASP Video 3 The Police Station
- Police Lawlessness: the hate of 591 law enforcement officers -
- Preparing for Prison Briefing, Rebels in Prison Support
- Climate Necessity Defense