When a quarter of a century had passed since the first “statute of the Public Prosecutor’s Office”, which had emerged, without that name, a few years after the Constitution, Eduardo Maia Costa – a renowned jurist who was Deputy Attorney General and later Judge Counselor of the STJ – portrayed the panorama sternly: “reduced operationality, combined with a weakening of the culture of fundamental rights, this is what characterizes the activity of the Public Prosecutor’s Office in criminal investigations, in its general terms”. And he underlined: “the result that we can see today, without much difficulty for anyone who wants to see, is the triumph of a bureaucratic culture”.
This “weakening” of the culture of rights was already making the reservation of private and family life, the right to a good name and the presumption of innocence increasingly vulnerable, not to mention the right to freedom itself. And not just the MP, let’s face it, we should talk about this. Let’s just take one example here: of the thousands of requests for authorization to wiretap each year submitted by the MP, only 1 or 2% were rejected by the judge, clearly demonstrating the level of agreement achieved between the judiciary, to the detriment of the role of guarantor of fundamental rights conferred on the investigating judge by article 32, no. 4, of the Constitution.
With reality reinforcing the diagnosis, a set of legislative changes were introduced in 2007, with a more demanding design and aligned with the defense of fundamental rights (telephone tapping, judicial secrecy, detention, consequences of violating legal deadlines, etc.) as part of an extensive review of the Criminal Procedure Code that had been promised to voters and which – poorly received at the time by multiple voices from the MP and academia – is essentially still in force.
The electoral promise then did not include changes in the composition of the most relevant body for monitoring performance: the Superior Council of the MP, the collegiate body that forms part of the Attorney General’s Office, which constitutionally “presides over” the PGR. Therefore, coming from afar, and in dissonance with what is happening in the Superior Council of Judiciary, the marked predominance of members from the MP, which Figueiredo Dias had already warned about in 1995 (“serious risk – if not the inevitability – of corporatism of the supreme body of self-government”) continued.
It is emphasized today that the divergence between design and performance has worsened over the years. Despite the more demanding legal regime, abuses, failures and various non-compliances have been increasing in different areas, without measures or reforms having emerged to facilitate their scrutiny and correction. Within their constitutional spheres of intervention, governments and the Assembly of the Republic, in successive configurations, were oblivious to this divergence, even approving solutions that expanded the phenomenon. With the irony that the events themselves contain, paroxysm would be reached with a PM resigning and an Assembly with an absolute majority being dissolved in a sequence opened by a PGR statement of the most uncertain legality.
In the choices made in the meantime by the current Government and President of the Republic (in which the appointment of the PGR stands out as decisive) there is no sign that the “culture of fundamental rights” has constituted a relevant criterion. How, without it, can the trajectory be corrected and the rule of law promoted?
Jurist, former minister. Write without applying the new Spelling Agreement