Some cases in Lisbon have dragged on for almost 20 years
The presiding judge of the Lisbon District Court, Artur Cordeiro, has said trials must take less time in the name of achieving justice for the community and those accused.
“From the defendant’s perspective, it’s unfair to be investigated for so long, with a sword over their head for so long. From the community’s point of view, it’s unfair to hear that certain facts have been indicted and not know whether or not they have actually been committed. We have to shorten these deadlines in any way we can, in a way that is acceptable to the community and to the justice that the community wants to see done,” Cordeiro told Lusa as part of the conference “Megaprocesses – When criminal justice is especially complex”, which is taking place on Thursday and Friday at the Lisbon District Court.
Artur Cordeiro said that the study carried out on 140 highly complex criminal cases distributed in the Lisbon district since 2013 points to cases dragging on for almost 20 years until their conclusion.
“It’s very complicated for a case to last 10 or 15 or more years, and then we get to trial and have to declare a whole host of offences time-barred. What was the point?” the magistrate asked, stressing that the “old-fashioned, paper-based” approach, often without the necessary means, inhibits the full realisation of justice.
According to the survey carried out by the support office for judicial magistrates over the last few months, among the various statistics, 49% of cases with an inquiry phase that lasted more than three years (average duration of three years and eight months) stand out. There were also 31% of cases that lasted more than a decade from the opening of the inquiry to final judgement.
“We have to find mechanisms that are much more satisfactory for the community than that old maxim we have: investigation, trial, appeal and then the process is over. But the problem is that in these cases, the investigation, the trial and the appeal take decades, and that’s tremendous,” he laments.
Assuming that mega-proceedings are a “transversal reality” in the different jurisdictions but with a special impact in the criminal sphere and especially in the economic-financial sphere, often with prominent public figures as defendants, Artur Cordeiro said that a legislative change aimed at imposing a time limit on the duration of inquiries by the Public Prosecutor’s Office would not necessarily be the most appropriate response.
“The consequence of such a time limit would be what? The impossibility of the inquiry continuing? It’s very complicated to say this… imagine when one of these operations is carried out, and the Public Prosecutor’s Office has X amount of time. It’s worse, not just because of the means that exist, but because of the working methods, which are from the 20th century,” he emphasises, summing up: “I don’t see how we can peremptorily demand that the Public Prosecutor’s Office finish an indictment. Not only because of constitutional imperatives, but also because of the lack of means, which we don’t have, and ways of working.”
The Megaprocesses conference will feature the presentation of a quantitative and qualitative study based on 140 cases of the most complex criminality distributed since 2013 in the Lisbon district, in which various statistics and timeframes of the different procedural stages were compared in order to draw a picture of this reality of Portuguese justice.
Specialised court for economic-financial crimes needed
The same judge also said that he believes that the fight against the most complex economic and financial crime should involve the creation of a specialised court in this area in Portugal, as is already the case in other countries.
“Why shouldn’t we also have a court at the trial stage – especially in cases that span the country’s various districts (as is the remit of the Central Department of Investigation and Criminal Action and the Central Court of Criminal Instruction) – specialised at this level? With resources, with bodies of experts and advisors to deal with these crimes? They would probably be able to do it in a shorter time during the trial,” he asked.
Pointing to a possible increase in the number of magistrates assigned to the Lisbon Central Criminal Court, where almost all of the trials in these more complex or even mega-cases take place – and which is due to host the start of the BES and Operação Marquês trials this year, for example – Artur Cordeiro evokes the example of specialised judges for the military sphere.
“Why can’t we have (…) nine or 12 judges only dealing with this [economic and financial] crime? With objective criteria that deal with this type of case? We probably wouldn’t have the constraints we have when these cases reach the trial stage; we would probably also have the need to train magistrates specifically for these areas and with continuous training,” he said.
However, the justice system’s approach to highly organised and complex economic and financial crime must, according to the magistrate, also be rethought in the way cases are designed, not only by avoiding mega-proceedings when possible but also with a different structure to the one that exists today, with the mere digitisation of volumes and appendices that sometimes don’t even make it to trial.
“If we don’t structure the information, what we’re always going to have is an old-fashioned process: volumes and volumes, only digitised,” he points out, continuing: “There’s no way out unless we take a different approach. I’d like to see the initial steps taken so that the information arrives already structured and standardised for consideration by the Public Prosecutor’s Office and then transmitted in the same way to the judicial phase.”
Court appeals need to be “carefully examined”
Artur Cordeiro also touched upon the topic of court appeals, which in many cases prolong the duration of cases for years on end.
“The appeals system would need serious consideration. And I’m not saying to curtail them… we already have a rule that allows you, when you reach the limit of appeals, and the incidents continue, for the judges or counsellors to extract a transfer and the incident continues to be dealt with, but the case goes down to the execution of the decision. I think the system should be very well balanced,” he says.
Among the measures that he believes could make a difference in this time without jeopardising defendants’ rights to appeal is, for example, the possibility of moving forward with the enforcement of sentences after the last confirmation before the Constitutional Court (TC).
“There needs to be a final degree of certainty. If the process can go all the way to the Supreme Court, it should at least go all the way to the Supreme Court to be finalised. From the Supreme Court or from the Court of Appeal… I don’t know if it makes sense for the appeal to the Constitutional Court to continue to prevent the decision from being enforced,” he explains.
Another open measure would be, in the opinion of the president of the Lisbon district, a reformulation of the pre-trial phase. With some mega-cases having pre-trial phases that last for years – such as Operação Marquês or the BES/GES case – to which is added the time from the accusation to the start of the pre-trial phase or from the pre-trial decision to the eventual judgement, Artur Cordeiro points to a shorter vision.
“What I see as a possibility is not that there will be a judge who will assess the sufficiency of the evidence because that will also be done at trial, but that there will be a judge who will assess whether everything that was done in the inquiry was carried out legally or illegally. The assessment of the evidence, which is what takes up all those months and years, could cease to exist at the pre-trial stage. I think that’s what the investigation will have to be about,” he emphasises.