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Efficiency Against the Defence: What Portugal's Law 34/2026 Means for the Right to a Fair Trial
On 27 July 2026, Portugal published a substantial reform of its Code of Criminal Procedure (Law No. 34/2026), which enters into force on 1 September 2026. Presented as a package to combat delay and “procedural obstruction,” it amends around thirty articles of the Code, together with the Penal Code and the Court Costs Regulation. Its stated aim, a faster criminal justice system, is one few would contest.
The difficulty lies in the method. The reform pursues speed largely by narrowing the space in which the defence operates: it removes appellate control over decisions that shape the trial, attaches financial penalties to procedural acts of the defence, and, most strikingly, channels the conduct of defence lawyers into professional discipline. Efficiency is a legitimate objective. But when it is built on the compression of safeguards, it risks eroding the fair trial it claims to serve.
Decisions placed beyond review
The reform withdraws appellate scrutiny from a widening class of first-instance decisions. Under the amended Article 340 (5), the order to decide which evidence is produced at trial becomes non-appealable. The only exceptions are where the ruling breaches the prohibitions of evidence, or where the evidence was unlawfully obtained. In practice, this means a ruling that rejects a line of defence evidence as “irrelevant” or “dilatory” can no longer be reviewed by a higher court.
A new Article 85-A goes further. It gives the presiding judge a broad power of “case management”: to adapt to the form of procedural acts, and to reject anything deemed impertinent or merely dilatory. These decisions are, again, non-appealable, except where the appeal is directed specifically at the clause protecting fundamental rights. That exception is narrow, and somewhat self-referential: it is the very ruling that determine how a defence may be conducted that are removed from review by a higher court.
This engages in the core of Article 6 of the European Convention on Human Rights: the right to a fair hearing, equality of arms, and the defence’s right to obtain the examination of witnesses under Article 6(3)(d). Once the decisions governing how the defence is conducted can no longer be tested on appeal, the guarantee of an effective remedy becomes formal rather than real.
Pricing, and disciplining, the defence
The reform then puts a price on procedural activity. A new Article 521-A allows the court to fine the accused, the assistente (the injured party admitted to take part alongside the public prosecutor), or the civil party, between 2 and 100 units of account (€102/unit), for acts considered manifestly unfounded and dilatory. A new Article 426-B adds a further step at the appellate stage: the contested decision is only issued once such fines have been paid.
Crucially, it is the same first-instance judge, often the very judge whose case management is being contested, who decides whether an act counts as “dilatory.” This is frequently done through the non-appealable decisions described above. The predictable effect is a chilling one: to insist on a line of evidence, or on a procedural nullity, is to risk a penalty.
The most far-reaching provision is Article 521-A (6). Under this new article, where a party is penalised a second time in the same proceedings for a “dilatory act,” and those acts were carried out through their lawyer, a certificate is sent immediately to the Bar Association to assess the lawyer’s disciplinary liability. The fining is made against the party, but the professional risk falls on the lawyer who conducted the defence. In other words: a purely procedural judgment, made unilaterally by the trial court, and largely beyond appeal, is routed straight into the disciplinary system that governs lawyers. Vigorous representation, when labelled as such by the very court it is directed against, becomes a professional risk.
This sits in evident tension with a standard Portugal has itself recently endorsed. On 21 January 2026, Portugal signed the Council of Europe Convention for the Protection of the Profession of Lawyer (CETS No. 226), which guarantees the independence and self-regulation of Bars, the prior and effective consultation of the profession on legislation that affects it, and the objectivity and fairness of disciplinary procedures. The Convention admits no reservations, and a signatory State is bound, pending ratification, not to defeat its object and purpose. The paradigm the Convention was drafted against — the instrumentalisation of Bars to discipline lawyers through legislative change — is precisely what this disciplinary trigger, tied directly to how a lawyer exercises the defence, brings uncomfortably close to home.
Looking ahead
None of this denies that criminal proceedings should be swift, or that genuinely abusive tactics exist. But a system that answers delay by removing appeals, taxing procedural steps, and disciplining defence lawyers does not resource justice, it redistributes the cost of efficiency onto the accused and those who represent them. The real test will be in its application. From 1 September, much will turn on how readily “dilatory” becomes a label for a defence that is simply effective and inconvenient.
The reform deserves close monitoring, and not only in Portugal. It is a national instance of a wider European pattern, efficiency measures that operate by narrowing safeguards rather than strengthening courts, and its disciplinary dimension places it squarely at the intersection of fair-trial rights and the emerging European framework on the protection of the legal profession. Those are commitments Portugal has signed. The coming months will show whether its criminal procedure honours them.
Written by Vítor Neves, criminal defence lawyer (Portugal) and Fair Trials LEAP member.
