The Attorney General of the Republic, Amadeu Guerra, said that the decision on the preventive investigation into the Spinumviva case should be completed before Christmas. He even talked about a possible “Christmas gift”. The reference, made in an informal register, temporally situated a procedure that, from the beginning, became a test of the way in which Portuguese justice deals with processes of high political exposure.
It is worth remembering the essentials. At this stage, there is no question of any finding of guilt regarding Luís Montenegro. What is on the table is whether the elements collected by the Public Prosecutor’s Office (MP) justify the opening of a formal criminal investigation or whether, on the contrary, the case should be archived. Preventive investigation is precisely that: a preliminary mechanism designed to assess whether there is sufficient evidence to move forward.
This is also where a relevant legal question arises. In recent days, a group of jurists – Wladimiro Brito, Francisco Teixeira da Mota, Ricardo Sá Fernandes and Pedro Miguel Freitas – asked the Ombudsman to ask the Constitutional Court to rule on the possible unconstitutionality of this type of procedures. They do not do so against the prime minister, they emphasize, but in his defense and, above all, in defense of the rule of law.
The argument is simple: the Code of Criminal Procedure determines that any person on whom a concrete suspicion falls must be made a defendant, precisely so that their rights of defense are guaranteed – access to the process, assistance by a lawyer, possibility of intervention. Now, in a preventive investigation, none of this happens. The person targeted is not a defendant, has no procedural status and may not even know the outcome of the procedure.
For these jurists, this is a practice without a legal basis. One thing is preventive actions provided for in specific legislation, such as Law 36/94 (Measures to combat corruption and economic and financial crime), invoked to initiate this process; another is an administrative practice of the MP that allows concrete suspicions to be investigated outside the framework of the criminal investigation provided for by law. This practice, they argue, violates constitutionally enshrined rights, freedoms and guarantees and contributes to public alarm about the performance of justice.
It is not just a matter of discussing whether or not there should be an investigation. There is a debate as to whether the instrument used to get there is compatible with the Constitution and the fundamental guarantees of citizens – including, ironically, the Prime Minister himself.
This legal framework is relevant to understanding the scope of the upcoming decision. There is still a question that deserves reflection. Faced with suspicions of a similar nature directed at an ordinary citizen, it is legitimate to ask whether the system’s response would not have been, from the outset, the opening of a criminal investigation, with the means of investigation that the law provides, including the possibility of searches and seizure of relevant documentation, always under judicial control.
Preventive investigation, on the contrary, is necessarily based on the phased request of elements from the target person, depending to a large extent on their collaboration, which raises questions regarding the effectiveness of the procedure and material equality in the application of legal instruments.
We believe that the greatest probability in this case is that it will be archived. From the point of view of criminal law, this solution is entirely legitimate if the MP concludes that the elements collected do not reach the minimum threshold of evidence required to open an investigation. Criminal law is governed by the principle of minimum intervention and does not allow exploratory investigations or open processes to dispel public suspicions.
An archiving can, therefore, translate institutional restraint and respect for the presumption of innocence, particularly relevant when the target holds front-line political functions. But that same decision requires, in this context, particularly clear reasoning.
In a case that has already produced political effects and fueled suspicions, the lack of explanation or an excessively laconic order would risk weakening the public perception of justice, even if the decision was legally irreproachable.
The opening of a criminal investigation, on the other hand, would not constitute any anticipation of guilt. It would simply represent recognition that there is evidence that justifies moving to a procedural phase with reinforced guarantees for the person concerned and with investigative instruments subject to judicial control. In certain contexts, this option would be the most effective way to ensure full clarification of the facts and protect the credibility of institutions.
Here too, however, there are clear limits. Opening an investigation to respond to media pressure or to produce a symbolic effect would be as problematic as archiving it without sufficient justification. Justice cannot function as a perception management mechanism or as a substitute for political debate. And, as jurists who raise the question of constitutionality emphasize, the solidity of the process depends not only on its outcome, but on the legality of the path that leads to it.
It is in this balance that the now imminent decision lies. With around ten days to go before Christmas and with the judicial holidays approaching, the conclusion of the preventive investigation should, by now, be defined in its essential terms. Regardless of the metaphors used, the essential thing is that the action of justice is governed by compliance with the law and respect for constitutional guarantees, and not by symbolic calendar references.
If the Spinumviva case contributes to a clarification of the limits of the MP’s actions and to a more demanding debate on the instruments admissible in the phase prior to criminal investigation, then it could result in a strengthening of institutional trust. This is, ultimately, the criterion by which this decision should be evaluated. That, indeed, would be the best “Christmas gift” for Justice.