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05 October 2021 The justice system made it possible for a convicted citizen to escape

About the João Rendeiro case

The rumoured escape of a citizen from the justice system calls for a Cartesian conclusion: if the judge had ordered pre-trial detention, this citizen would certainly not continue to enjoy the precious good of freedom.

However, in the light of the law and principles, this citizen's escape from the prison sentence he was sentenced to was not the result of a legislative deficiency or an incorrect decision by the judge.

Court decisions carry a risk, albeit one that is mitigated by various safety valves. This risk is no different to that which the simplest everyday tasks entail for the rest of society.

The surgeon, in the course of an operation, may not be able to save the patient despite applying all the rules of legis artis. After the patient's death, he concludes that a different treatment would have saved his life.

Criminal law is also full of decisions that inevitably have an underlying risk.

When a judge grants a prisoner a two- or three-day reprieve, there is a risk that the individual will not return to prison. By not taking that risk, the judge would prevent the citizen from being re-socialised.

In the same way, a judge who sentences a defendant to a suspended sentence, even though the prognosis is favourable, runs the risk of the defendant reoffending. If he didn't take that risk, he wouldn't give citizens who could be useful to society the chance to be re-socialised.

In the end, when it acquits a citizen, the court runs the risk of letting a guilty person escape. However, this precaution is an important safety valve against condemning an innocent person.

But could the penal system work any other way?
The criminal justice system, like other structures in society, is not capable of avoiding all the risks inherent in human behaviour. The judge, no matter how skilled, cannot accurately predict human behaviour, let alone the external circumstances that cause it to change.

Returning to the problem of the citizen who has evaded serving a prison sentence, let's take the following example. In the context of the same case, two defendants at liberty scrupulously complied with the coercive measures applied by the court. However, two years later, one of the defendants, who had been sentenced to life imprisonment, went on the run and did not report to prison to serve the sentence he had been sentenced to. The most obvious conclusion would be that the court took a risk by not ordering the pre-trial detention of the fugitive. In order not to run this risk, the court would have had to impose pre-trial detention on both citizens, which would have led to an obvious injustice: the citizen who had been acquitted would have served two years in pre-trial detention and would later have been acquitted.

It's important to remember that every day our courts hand down judgements in which citizens in pre-trial detention are acquitted at trial, which is always a tragedy for the defendants, their families and society. If the court didn't take a risk, the consequences would inevitably be far greater, if not turn into a tragicomedy.

It would be interesting to analyse the data on defendants who are acquitted on remand, compared to defendants who are awaiting trial and, faced with a prison sentence, flee.

What's more, fugitives have a set of procedural tools at their disposal that tighten the siege so much that it limits their actions, so that the overwhelming majority of them end up turning themselves in sooner or later.

It turns out that citizens who have been remanded in custody and are eventually acquitted have no choice but to look at those who have stolen their freedom.

The escape of one citizen or another must be viewed with the careful consideration that the judge puts into the decision not to arrest citizens who may later be acquitted. It is better to acquit a guilty person than to convict an innocent one, or to put it another way, it is better to let a convicted citizen escape than to keep an innocent citizen in prison for several months.

Now that the judge has observed the law and the principles, the flight of a citizen is part of the risk inherent in a criminal decision.

Article by: Carlos Melo Alves