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The controversy was suspended in February, lost amid the pandemic crisis, but is now back in force. The leadership of the Union of Magistrates of the Public Ministry meets in emergency from 2:30 p.m. to analyze ways to fight against a directive of the Attorney General Lucília Gago that reinforces the powers of the Public Ministry (MP) to intervene in the investigations. According to what the Observer found, to this is added the possibility that an assembly of union delegates be convened to quickly approve ways for prosecutors to express their discontent.
This is a directive from Lucília Gago of November 12 in which the powers of the hierarchy of the Public Ministry to intervene in investigations and to initiate investigations when the prosecutors of the same refuse to follow orders are reinforced. The order issued on November 12 expressly specifies “The processes that have, or are expected to have, public repercussion” As the main objectives of these measures, it is read in Directive No. 4/20 published on the website of the Attorney General’s Office.
With Lucília Gago’s order, it is also clear that the magistrates who lead the investigations are now obliged to inform their boss of all “Relevant procedural acts that have, or are expected to have, special public repercussion.” This means that the opening of an investigation, the carrying out of searches or telephone tapping in cases of “special sensitivity” due to the “interests involved” must be previously informed.
Prosecutor’s Office at war with Lucília Gago’s directive that limits the autonomy of the magistrates
From a practical point of view, this directive legitimizes the intervention that Albano Morais Pinto, director of the Central Directorate for Criminal Investigation and Action (DCIAP) had in the Tancos case by preventing the head of the investigation from summoning President Marcelo Rebelo of Sousa and Prime Minister António Costa testify on file. And it will also allow, for example, that the holders of the investigation of the Hydrogen case have to inform their hierarchy in advance if they want to propose telephone interceptions to members of the António Costa Government to the criminal investigating judge.
This is a controversy that started in February. At that time, Lucília Gago ordered the application of an opinion of the Advisory Council of the Attorney General’s Office (PGR) that had been requested by the Prosecutor’s Office itself and that had been unanimously approved on November 28, 2019. In response to questions from Lucíliga Gago, the PGR’s advisory body, guaranteed that hierarchical superiors have the right to issue specific “directives, orders and instructions” on certain procedural procedures, with subordinates (the prosecutors who carry out investigations) only having the right to disobey in the case . an “illegal order” or “serious violation of legal conscience”, which must be duly substantiated by the corresponding magistrate, under penalty of disciplinary sanction.
Immediately, the Union of Magistrates of the Public Ministry opposed the opinion and António Ventinhas affirmed that the return to “the time of dr. Pinto Monteiro. It is a return to the opacity of that time ”. All opposition parties also criticized the attorney general’s initiative. The PSD spoke of an attack on the law, the Left Bloc of a “violation of the rule of law” and the PCP and the Liberal Initiative denounced the dangers of the “politicization” of justice.
Attorney General Suspends Controversial Directive Empowering Chief Prosecutors
The controversy only ceased when the attorney general suspended the application of the directive and requested a complementary opinion from the PGR Advisory Council. President Marcelo Rebelo de Sousa praised Lucília Gago for having decided “to clarify the doubts, which were many, and contribute to a relaxation in the judiciary, which is very important.”
What has changed since then? The Advisory Council issued the referred supplementary opinion on July 9, which, unlike the first document, was only approved by a majority, with the director Eduardo Costa Ferreira voting against and issuing an explanation of vote.
However, the questions that Lucília Gago posed to the PGR’s advisory body had nothing to do with the controversy that arose in February. This is because the attorney general limited himself to raising questions related to the legitimacy of third-party access to the aforementioned written hierarchical orders and the way in which such access could materialize. All because the referred hierarchical orders, as it was clear in the first opinion, should not be part of the criminal process to which they refer. And what third parties are these? The accused of the process in question, the media and those who invoke a legitimate interest.
In other words, in practice, the Advisory Council confirmed the conclusions of the first opinion and made it clear that the hierarchical orders with respect to the provisional orders, the final instruction orders can and should be accessed by the accused and the media in name of the Constitution that establishes the “The right to be informed and to be informed, without hindrance or discrimination.”
“The hierarchy of the Public Ministry is not hidden in a heavy, bureaucratic, secret and opaque structure. On the contrary, it must be accountable to the community for the way it exercises its powers ”, the opinion reads. Invoking the criminal lawyer Jorge Figueiredo Dias, the PGR counselors affirm that “limiting access to information to what is in process is a reducing concept, which forgets everything that is (and should be) outside.”
Although such a degree of detail is not part of the two opinions that were requested from the Advisory Council (which is not mandatory), Lucília Gago’s board of directors even ordered “Mandatory communication to the immediate superior” the “initiation of an investigation”, “Relevant procedural acts that have, or are expected to have, special public repercussion” and the final decisions of all processes.
And what kind of processes are these? They are those that due to their “exceptional complexity and seriousness of the crimes” and their “particular sensitivity that show the relevance of the interests involved, the quality of the subjects and procedural actors (eg. particularly exposed people) ”, May have, or is expected to have,“ public impact ”.
This description fits in practically all the media processes of recent years, such as Operation Marqués, the Espírito Santo Universe, the cases of Hydrogen, Tancos, Hidden Face, BPN, BCP, BPP or investigations about the world of football, among much others.
Lucília Gago’s directive also includes precise instructions for the invocation of investigations by the fiscal hierarchy. In other words, the chiefs are empowered to withdraw a case from a certain magistrate and distribute it to another prosecutor. A power that takes on another importance as soon as it becomes clear that the Office of the Prosecutor itself, as well as the prosecutors, directors or regional coordinators, can issue specific orders on the steps that investigators can take.
Thus, Lucília Gago orders that the regional attorneys consider the “issuance of guidelines” on the rules of convocation in the respective judicial region. Gago makes a point by expressly mentioning that “guidelines intended to withdraw inquiries” should be viewed as “have, or are expected to have, public repercussions ” or they have “special sensitivity that they show due to the relevance of the interests involved, the quality of the subjects and procedural actors (eg, particularly exposed persons) ” – Concept that becomes a premise both for the communication of procedural acts and for the presentation of proceedings.
Although the word “political” is not written, this part of the directive is a clear reference to the legal concept of “politically exposed persons” described in anti-corruption and money laundering legislation.
The Attorney General Lucília Gago determined in her November 12 directive that, “in the exercise of hierarchical powers of management, the immediate superior issues orders and instructions”, which will be recorded in a “preparation and follow-up file”. In other words, said orders must be made in writing and the aforementioned file must be signed on the physical and electronic cover of the criminal process ”to which it refers.
On the other hand, the prosecutor who detects the investigation referred to in the hierarchical order may only deny it if he invokes an express illegality committed by his superior, being sure that the grounds for the denial must also form part of the aforementioned file. Such rejection is called by the Advisory Council as a “first mechanism to control the goodness of hierarchical intervention. If the hierarchy must control autonomy, it must also control autonomy, generating a system of practical agreements or mutual balances “, it reads in the opinion.
Anyone who has a “legitimate interest”, such as the accused and the media, may consult the file to monitor hierarchical interventions. But provided that said consultation “does not violate the interests of the investigation, particularly in situations in which the investigation is subject to the secrecy of justice” and that said consultation “is not likely to violate the fundamental rights of other procedural subjects or actors.”
