Articles
05 June 2024in Expresso
OPINION | The PGR's mistake: the sins of the last paragraph that led to the Prime Minister's resignation
Several months after the political storm caused by the public prosecutor's statement, it's time to analyse the goodness of the last paragraph in the light of our judicial system.
With the publication of the so-called ‘last paragraph of the note to the media’ we believe that the intention of the Public Prosecutor's Office was for reasons of procedural transparency. The prosecutor's office wanted to demonstrate that it does not protect the strongest, even if it is the prime minister.
Let's remember the content of the last paragraph:
"In the course of the investigations it has also come to light that suspects have invoked the name and authority of the Prime Minister and that he has intervened to unblock procedures in the aforementioned context. These references will be analysed independently in the context of the investigation opened before the Supreme Court of Justice, as this is the competent forum".
In complex investigation procedures, secrecy of justice is generally in force. The aim is not only to guarantee the effectiveness of the criminal investigation, but also to respect the principle of the presumption of innocence of the suspect who is exposed to value judgements in the media that damage, often irreversibly, their fundamental rights to honour and self-image. In this sense, this paragraph should never have been written and made public, because the good principles of criminal procedure and, above all, the interests of the investigation and the suspect demanded it. The forensic practice of those who deal with this matter makes it difficult to understand that a suspect is being investigated.
Let's see what happens in forensic practice. When a group of individuals is being investigated for committing various offences, the police and the Public Prosecutor's Office may take the view - which is often the case - that the criminal responsibility of one of these suspects should be investigated in an autonomous case, essentially for reasons of investigative strategy. In this case, it was decided that the Supreme Court of Justice had jurisdiction to investigate the Prime Minister. In these cases, the Public Prosecutor's Office draws up a certificate for the investigation to continue in a different case.
It is at this point that the statement suffers from two mortal sins.
Firstly, once the suspect knows that he is being investigated for the alleged commission of a crime, he will understandably take all measures to hide and deceive the evidence in his possession. The investigative methods that are highly effective in fighting crime - searches, wiretaps and surveillance - are completely jeopardised. If the suspect is aware that a search is going to be carried out on his home, the endeavour loses all its effectiveness because the suspect is likely to dispose of the evidence that could incriminate him.
The second sin consists of informing the suspect, by means of a press release, of the evidence that exists against him. Passing on to the public the information that two of the suspects investigated and detained in a case have invoked the name and authority of the Prime Minister to obtain illicit favours from him allows the suspects to react in such a way as to concoct versions and throw off the evidence, for example by planting artificial evidence.
We can already see that the suspect's knowledge of the existence of criminal proceedings against him and, above all, of the means of proof used by the investigation, can destroy the entire investigation.
The application of these principles would also have prevented the political storm that the communiqué caused, insofar as its publication, in the eyes of ordinary citizens, exposed the honour and honesty of those who hold the highest office in the Portuguese government.
Article by: Carlos Melo Alves