In the current public debate, “justice reform” has become a political banner, often agitated due to electoral convenience and media pressure. However, the reform that some seem to desire risks being not an evolution, but a dangerous regression, based on the maintenance of practices that erode the foundations of the democratic Rule of Law. For defenders of maintaining “preventive investigations” (I mean, preventive and secret), which even judges target, instruments of informal, not to say clandestine, investigations, in complete contravention of the Code of Criminal Procedure and the Constitution of the Portuguese Republic… Anyone who does not understand the grotesqueness of what a clandestine investigation is, conducted outside any procedural control by a judge of law, by those who have the duty to guarantee legality, is failing to understand the most basic pillar of our democracy: the submission of power to clear and scrutinizable rules. Justice cannot operate in the shadows and without being based on procedural law, under penalty of becoming its own negation.
We are witnessing, simultaneously, a “shuffle and give again” of old solutions that resurface in connection with the never-ending “Marquis process”. The proposal to impose fines on lawyers and defendants who use “delaying procedures” is presented as a panacea for the slowness of justice. This simplistic and dangerous narrative omits an essential part of the equation. The question arises, quite legitimately: were fines imposed on prosecutors who, in the case in question, systematically exceeded the maximum investigation deadlines, with successive requests for extensions to the then Attorney General of the Republic, Joana Marques Vidal? The coherence and exemption of the State are measured by these details. In a democratic State of Law worthy of the name, shouldn’t mandatory, and not merely indicative, maximum deadlines be set for the filing of charges? Would the “Marquis process” exist in its current form if such deadlines were a binding reality or even if they had not been met? Or would we have, in its place, several processes, perhaps already judged, guaranteeing faster and more effective justice, without sacrificing fundamental rights of citizens?
Do you want to reform justice? So listen to those who walk there every day. True reform does not involve exceptional laws or the suppression of constitutional guarantees, but rather by solving the structural and glaring problems of the system. There is a disappointing lack of offices for judges and prosecutors and, when they do exist, few are decent, forcing them to work in undignified conditions. There are infiltrations in court buildings, putting processes, equipment and the health of those who work there at risk. Computers are, in many cases, from the time of “Maria Cachucha”, obsolete and unable to support the demands of modern work. There is a lack of modern means of distance communication that allow for more agile justice and less dependence on physical travel. There is no transcription during depositions, an incomprehensible delay that perpetuates procedural slowness. And, above all, there is a glaring and chronic lack of judicial employees – there are fewer and fewer of them, there is increasing absenteeism and the few who remain there and are not lacking, out of professionalism and honesty (to whom I pay homage), are extremely overworked –, the true pillars that support a judicial machine on the verge of collapse.
Justice reforms… because of a process? Because of the presidential elections, what is good to say to those who don’t know? Have some sense!…
Lawyer and founding partner of ATMJ – Sociedade de Advogados