In my last column, I discussed how the much-vaunted fight against “dilatory procedures”, transformed into a narrative that accuses the defense of delaying proceedings, has been used to constrain the exercise of the defendants’ rights of defense and the freedom to exercise the forensic mandate. This time, I will address a “mechanism” that is very much in vogue in criminal instances and that the Lawyers who plead there feel in their “skin”, as do the citizens they defend, but which the media does not talk about. In other words, how the Criminal Courts, through the “expedient” of “irregularities and nullities that can be remedied”, limit and in some cases restrict the right of defense of citizens in criminal law.
The criminal process is based on guarantees. Its violation generates (or should generate) the invalidity of the acts. The law distinguishes between invalidities that cannot be remedied (the most serious), invalidities that require an argument (those that can be remedied) and mere irregularities. It is in the interpretation of these last two categories that the danger lies. By classifying the violation of an adjective right of defense as a “mere irregularity” or “nullity that can be remedied” by a subsequent act, the judicial system validates what is, in essence, invalid, harming the defendant’s defense rights. A recent case illustrates this practice well. A foreign citizen, resident in Portugal for almost two decades, was sentenced to seven months in prison for driving under the influence of alcohol. The defendant does not speak or understand Portuguese, a fact recognized by the court, which appointed him an interpreter. The problem arose after the conviction. The sentence, a technical document justifying the deprivation of liberty, was never translated into the defendant’s mother tongue, despite the defendant’s defense requesting it. In fact, the defense requested the translation so that its constituent could understand the reasons for the conviction and make an informed decision on the appeal. The request was rejected, after the Court of First Instance “surgically and conveniently” allowed the appeal period to end. Then it was the Court’s turn to consider that the presence of the interpreter during the reading of the sentence was sufficient and that the lack of a written translation constituted a mere irregularity, which had already been remedied, as the defense during the reading of the sentence by summary and respective translation, which took place in around 12 minutes, did not require a written translation.
The written sentence, in Portuguese, was made available a few days later. But the Court of Appeal considered the “irregularity” to be corrected because the defense did not allege the lack of translation at the time of reading, when not even the sentence in Portuguese was available. This decision reveals the “pretend” that we experience in the Criminal Courts of our country every day and that we live with the much-vaunted, but false, excess of guarantees. The “irregularity” was remedied, and the defendant’s right to have access to a translated sentence under the auspices of the Court was precluded, as the defense did not invoke this irregularity when reading it, at which point not even the sentence in Portuguese was made available. It was therefore assumed that an oral and summary translation of a complex legal text, read in minutes, would be equivalent to a written document that can be analyzed calmly with the family and before or after with the lawyer. The right to be informed “in a language you understand”, provided for in the European Convention on Human Rights and in EU directives, was of no use. By classifying this serious and gross omission of the right to defense as a “remediable irregularity”, the Courts minimize a failure that reaches the heart of the defendants’ right to defense.
Deadlines are allowed to pass, convictions become final and the right of citizens to understand why the State restricts their freedom is, in practice, denied, using interpretative “expedients” to limit and curtail rights. When it is said that lawyers use “dilatory procedures” to defend their constituents, we have to talk about Courts that, through formalistic interpretations or even resorting to “mechanisms” of distortion of procedural defense guarantees, use (il)legal procedures to convict citizens. In fact, currently, the “worksheet” of “irregularities and remediable nullities”, “remediable” in the understanding of those who decide when they are not even known or perceived by the defendants and defenses, is used to tear apart the guarantees of defense of citizens in criminal proceedings. As Fernando Peça would say if he were alive: “And this one, huh?!”
Lawyer and founding partner of ATMJ – Sociedade de Advogados