one This is a classic when talking about the obvious ineffectiveness of the Portuguese penitentiary system in combating economic and financial crime, and the slow maneuvers of the defense are cited as one of the obvious reasons for this. The lawyers then stand up with their hands up, waving their traditional rhetorical exclamations against those who want to question status quo. And even worse: against anyone who dares (the highest blasphemy!) To challenge the best and most advanced criminal procedure in Europe (and in the world). Of course, the Portuguese!

The new target is the doctor. Enrique Araujo, Chief Justice of the Supreme Court, and the thoughts he presented in an exclusive interview he gave to the Observer. But is it? Do lawyers have any reason to publicly rip off their robes in the name of allegedly protecting the rule of law, as if the head of the judicial system did not know what it is?

Let’s be straight and synthetic:

• Criminal justice suffers from an injustice that urgently needs to be remedied: a huge difference in the speed of a final and non-appealable decision in a regular criminal case (quickly and within European standards) and in an economic and financial crime case (very slowly and appropriately). from a third world country);
• The reasons for this enormous slowness are varied, but among them, there are undoubtedly numerous tricks that the law allows the defense to delay the progress of this process:
• The very access to such instruments of protection depends solely on the economic capabilities of the accused, which means that the richest in the world have every opportunity to postpone the final court decision in search of recipes, and the poorest do not have sufficient funds to enjoy the benefits that they have. the law applies to all citizens. For a system close to utopian perfection, there can be no greater inequality.

Based on each of these points.

2penultimate report European Commission for the Efficiency of Justice (2018 data), the average time to resolve criminal cases in Portugal is within the European average: 1st instance (204 days), 2nd copy (121 days) and 3rd instance (58 days). This means that a little over a year is left before the final decision.

If we are going to buy this clearly positive data with the final assessment of some financial and economic processes (and others equally by the media) over the past 20 years, we can very easily conclude that the difference is terrible. We will see:

• Isaltino Morais case: Investigation began in 2002 with indictment in 2006, trial began in March 2009 and ended in August 2009, but the trial did not become final until May 24, 2014. Time to solve: 11 years.
• BPN case: the investigation began in 2008, the trial began in December 2010 and ended in May 2017 (6 years and 5 months). Oliveira Costa, the main defendant, passed away in March 2020. And only in March 2021, the records began to become final for some of the defendants. Resolution time: 13 years old
• BCP case: Investigation began in September 2007, indictment was filed in January 2009, convictions against Jardim Gonçalves and other BCP administrators were handed down in May 2014, and the Lisbon court upheld in February 2015 without further appeal. Resolution time: 8 years
• Hidden face: The investigation began in 2009, the trial took place from November 2011 to September 2014, and the case of the main defendant, Manuel Godinho, has not yet been finalized. Resolution time (so far): 12 years oldexcept that Armando Vara began serving his prison sentence in January 2019 (10 years pending final decision) and Paulo Penedos and Paiva Nunez in December 2020 (11 years until the final judgment).
• BPP case: Since 2008, there have been four trials, none of which have yet been final. The one closest to completion was indicted in June 2014, sentenced to effective prison terms in July 2020 by the Lisbon Court, confirmed by the Supreme Court in January 2021. Time of the decision (so far): 13 years old

• Pia Casa Wing: Investigation began in November 2002, trial began in November 2004 and ended in September 2010. The final decision was made only in April 2013. Decision time: 11 years.

3 The difference between the time it takes to solve the general criminal process and these processes that we just mentioned is from 1 to 10. What are the reasons for this terrible difference? Here are some explanations:

• The trial and appeal phases account for over 80% of the total process time. Why? Because many of these lawsuits had many witnesses, which greatly delays the trial. Examples: BPN case (more than 300 witnesses for a trial that lasted 6 years and 5 months), Hidden Face (a trial that lasted 2 years and 10 months with over 350 witnesses) or Casa Pia (a trial that lasted 5 years and 10 months to hear over 600 witnesses);
• Following a first-instance conviction, appeals and related adjournments in higher courts can go as far as the lawyer’s imagination allows. In addition to the appeal itself, the defense could seek clarifications from the speakers, file complaints with the conference, and even demand invalidation. All these maneuvers delay the process between the higher courts.
• The appeals themselves can begin at the stage of investigation, which helps to jam the recordings. Case study: The defense of António Mexia and João Manso Neto have already filed numerous appeals in the EDP case and the trial has not yet been charged.

This does not mean that the prosecutor’s office is free from the slow review of other cases. In addition to cases such as Espírito Santo Universe, public-private partnerships and the EDP are cases that have been or are under investigation for more than 5 years. The investigation also has problems – mainly due to lack of funds – and this too needs to be fought.

4 No ordinary citizen can understand how it is possible that “no one” accused of murder is investigated, charged, announced and convicted or acquitted by a final and non-appealable decision within 1 year. And a strong accused with good lawyers will be lucky only after 10 years.

Mostly when some of these defendants are suspected of harming the public purse (in the case of ex-politicians) or of harming thousands of consumers (in the case of ex-bankers).

This is why it is one of the major challenges facing Portuguese democracy today. Why? Because it explains an important part of the rise of things like Chega, but also the fact that citizens’ confidence in democratic institutions is being called into question.

And therefore the reaction of many lawyers, namely President Luis Menezes LeitauThe interview of the Chief Justice of the Supreme Court is very similar to the interview of the ostrich, who prefers to bury his head deep in the sand instead of facing reality.

five In fact, what is this law under which the defendants remain suspects for 10 or even 15 years? Don’t you lawyers understand that speed is also important for the accused in order to close a case that is naturally traumatic and to make their life as innocent or guilty as possible?

In other words: what is this law whereby access to justice and all legal instruments provided for the implementation of safeguards depends on the size of the defendant’s wallet? Those with higher incomes will be able to push the ruthless decision towards a possible statute of limitations, while those with less will begin serving their prison sentences almost after the first instance. What is the rule of law?

In order to be part of a solution aimed at making the Portuguese penitentiary system more balanced between guarantees of protection and the effectiveness of justice, it is important that lawyers move away from corporatism. Because this is the only way to find a minimum common denominator among the legal community in an effort to improve our penal system. Instead of insisting on the defense of empty judicial nationalism without any reference to reality.

Will continue next week

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