On the admissibility of an application for a partial non-indictment order

This paper, entitled “On the Admissibility of the Defendant’s Application to Open the Instruction Phase Seeking a Partial Non-Indictment Decision”, aims to critically analyse the judicial refusal of a request to open the Instruction Phase submitted by a defendant who wanted to contest only part of the charge brought by the Public Prosecutor's Office, leaving the analysis of the remaining criminal charges against him to a later stage in the proceedings. The Criminal Investigating Judge's decision to reject the request on the grounds that a partial investigation would be legally inadmissible is fiercely contested. In this article, it is argued that this reasoning is not supported by any rule of the Code of Criminal Procedure and constitutes a violation of the defendant's defence guarantees enshrined in Article 32 of the Constitution of the Portuguese Republic.

The pre-trial investigation, as an optional but essential phase of criminal proceedings, aims to allow judicial control of the decisions of the Public Prosecutor's Office and ensure effective adversarial proceedings. Rejection on the basis of the fact that the defendant hasn’t pleaded not guilty to all the crimes of which he is accused, but only to some of them, is directly against the purpose of criminal proceedings to ensure the defence, being also counterproductive in the light of the principles of procedural economy and speed.