Articles
26 July 2023in Observador Searches of PSD headquarters: The politicians' mistake

We have seen a chorus of criticism of the Public Prosecutor's Office because of the searches carried out at PSD headquarters and at the home of the party's former leader.

The Public Prosecutor's Office cannot be immune to criticism and any citizen has the right to indignation when they feel that their rights have been curtailed, all the more so because the power and instruments that the Public Prosecutor's Office has at its disposal are overwhelming when compared to the citizen's defensive barriers.

As a rule, in a criminal investigation there are several stages before the competent authorities authorise a search. Firstly, the report of a crime prompts the criminal police agency to carry out a series of enquiries that may or may not allow it to confirm the existence of indications that a crime has been committed. Secondly, on the basis of these well-founded indications, the criminal police agency asks the Public Prosecutor's Office to authorise or carry out a search, depending on whether it falls within its remit or that of a judge.

In the investigation phase, it is only the judge of freedoms who acts as a counter-power to the Public Prosecutor's Office, since the suspect does not yet have a procedural role in the case. In other words, the attacks on citizens' fundamental rights through the means of evidence requested by the Public Prosecutor's Office - phone taps, searches, video surveillance - only have the brake of the Judge of Liberties.

The search of the former PSD leader's home was - and could only have been - authorised by the judge. Under the law, it is the judge - and only the judge - who considers whether the requirements for authorising the search are met. The principles of necessity, proportionality and subsidiarity can only be properly weighed up in the light of a set of elements contained in the case file. This means that the judge is the ultimate arbiter of whether the evidence requested by the Public Prosecutor's Office - a search - complies with the principles of necessity and proportionality, and whether the investigation could be pursued through other, less intrusive means of evidence, thus respecting the principle of subsidiarity.

In forensic practice, we come across several decisions by judges rejecting evidence from the Public Prosecutor's Office. Unfortunately, there are also frequent rulings by the judge based on the Public Prosecutor's Office's own promotions, which, it has to be said, are the grounds for the defences to annul several cases.

It is therefore very clear that the decision to authorise the search of the former PSD leader's home belonged exclusively to the judge and, in this sense, the criticisms levelled at the Public Prosecutor's Office are completely incomprehensible.

As far as we know, the Public Prosecutor's Office authorised a search of the PSD's headquarters, and it was its sole responsibility. In this case, the question arises as to whether the judge has the power to authorise the search. The fact is that the headquarters of a political party holds a set of elements of such importance that only a judge can access them. A search of a political party's headquarters cannot be equated with a search of a warehouse or even a company office. The legal asset protected in a political party's headquarters - with the addition that it is the largest opposition party, a party that has alternated governance with the governing party - may relate to interests that are relevant to the Portuguese state.

Even if the search could have been authorised by the Public Prosecutor's Office, the weighting of the interests at stake required extra care in verifying the assumptions, and there appear to be grounds for arguing that the search was invalid due to a violation of any of the principles mentioned above.

We note the enormous boldness of the Public Prosecutor's Office in risking authorising a search of such a sensitive area, from an evidential point of view - certainly with the seizure of various computer devices, such as mobile phones and computers - whose intervention by the judge is required by law.

Once there, those targeted by these searches had only one path to follow.

With regard to the search authorised by the judge, they could use the appropriate procedural means and, if necessary, file an appeal to the higher court, claiming that the principles of necessity, proportionality and subsidiarity had been violated, arguing that the evidence was invalid.

As for the search authorised by the Public Prosecutor's Office, the solution would be to raise its nullity before the court, on the grounds of its lack of jurisdiction and also invoking the violation of the principles mentioned above. If the judge did not grant their request, they would appeal to the higher court.

In this way, they would be right in form - because they would have exercised their rights under the law - and in substance - if the courts were to rule in their favour

By following this path, our politicians would respect the separation of powers and be an example that their rights can be exercised within the justice system and not in the public square, discrediting the institutions and the Portuguese justice system itself.

Link to Observador

Article by: Carlos Melo Alves