On 11 November last, through Law 39/20 of 11 November, the New Angolan Code of Criminal Procedure was published in the Official Gazette (hereinafter referred to as "New CCP").
This diploma embodies the deep reform in progress in the justice system in Angola and aims to achieve a harmonization with the constitutional reform that took place in the country in 2010, materializing the principles and constitutional and procedural guarantees of defense and individual freedom.
It should be noted that, similarly to the New Criminal Code, several separate diplomas are centralized in the New CCP, which are now revoked, including the Regulatory Law on Body Searches, Searches of premises and Arrests – the existence of a warrant for conducting searches of premises is now expressly provided for – and the Law on Cautionary Measures in Criminal Procedure, with the New CCP devoting a chapter to the possibility of paying out a compensation due to illegal or unjustified detention.
It is also worth mentioning, as the main novelty, the establishment of a supplementary period of eight days for the practice of a procedural act.
A. PROCEDURAL RIGHTS AND GUARANTEES OF THE DEFENDANT
The defendant's procedural rights are, from the outset, provided for, which include, among others:
(i) the obligation to be present at acts that affect him;
(ii) be heard by the competent magistrate;
(iii) not answer questions asked about the facts attributed to him or about the content of statements made about him (which must be expressly clarified upon interrogation);
(iv) choose a lawyer, or ask the competent magistrate to appoint him/her, and be assisted by him/her in all procedural acts in which he/she participates;
(v) intervene in the preparatory and contradictory examining stages, offering evidence and requiring the necessary diligences.
The diploma also foresees the obligation of legal assistance in all interrogations of a detained or arrested defendant, in the inquiry debate and trial hearing, in the first instance or on appeal and in any procedural act in which a deaf, mute, deaf-mute or blind defendant, under 18 years of age, or whenever, in relation to the defendant, the question is raised as to whether he is not liable or has diminished liability.
B. CLARIFICATION OF THE DIFFERENT FORMS OF THE PROCESS
The New CCP clarifies the forms and stages of the process, and the process can have the common or special form. In the latter, there are the summary, contravention/misdemeanor, abbreviated and crimes judged in the 1st instance by the Supreme Court.
As for the stages, in the common process in the first instance, there are still:
1. Preparatory examining stage
It is a new aspect of this law to provide for the temporary suspension of the process, between 2 and 5 years, applicable to crimes with a prison sentence of less than 5 years or with a sentence different from that of prison;
2. Contradictory examining stage
3. Trial stage
In general, with regard to the demarcation of the different forms of the process, there is an optimization of procedural speed and efficiency, in the clear definition of the subjects and participants in the process in the stages of investigation, examining and trial, as well as a strengthening of their guarantees and rights.
C. DISTINCTION OF THE FUNCTIONS OF THE PUBLIC PROSECUTION’S OFFICE AND THE JUDGE; CREATION OF THE FIGURE OF THE "JUDGE OF GUARANTEES[1]”
As a result of this clarification of the different stages, there is now a clear separation of the functions of the Public Prosecution's Office ("MP") and the judge, and the application of coercive measures becomes the judge's responsibility.
The judge of guarantees was also institutionalized during the pre-trial stage, a figure that essentially aims to ensure legality and respect for the fundamental rights of the defendant.
A reformulation of the means of evidence and mechanisms for obtaining evidence was also carried out, the purpose of the penalty being the general positive prevention and reintegration of the accused into society, having as a basic principle the dignity of the human person.
Thus, as a means of verifying the truth of the facts, which substantiate the criminal liability of the defendant, witness evidence, evidence by statements, evidence by confrontation, evidence by reconstitution, evidence by documents and expert evidence is admitted. As for the means of obtaining evidence, the following are highlighted: searches of premises and telephone tapping.
The New CCP comes into force in February next year (90 days after the date of its publication) and is of immediate application, however, the acts performed in the field of the previous law remain valid.
However, the new diploma shall not be applied to proceedings that began under the previous law if its immediate application determines (i) a worsening of the procedural situation of the defendant, in particular, a decrease in his rights of defense or (ii) a contradiction or breach of harmony and unity between the acts of the proceedings regulated by the previous law and those regulated by the current law.
[1] i.e. Examining judge in Portugal.