The Constitutional Court’s verdict in the IT case: what was and what was not decided? opinion

1. In its most recent judgment No. 121/2021, the Constitutional Court decided unanimously by the members of its 2nd section the question of constitutionality raised by two defendants in the so-called EDP case, one of whom was the former minister Manuel Pinho. As soon as the decision was known to be unconstitutional, proclamations of victory and defeat were soon published. With my intervention, I do not intend to join this choir, but rather to make known the essential lines of what was at stake and what was decided and not decided so that everyone can form their own value judgment.

The normative problem that the TC faced was whether it was in accordance with the Constitution not to appoint a competent investigative magistrate during the investigative phase to assess the legality of certain acts carried out by the public ministry, namely the constitution of the acts of a suspect as a defendant and use of the concept of identity and residence.

In simpler terms, the problem is essentially this: in the course of the investigation, the judicial authority that directs it, the public ministry, has the power to appoint a suspect as a defendant. The validity of this law of course depends on a review of several conditions set out in the law. If the target believes that his Constitution was illegal as a defendant, who can he “complain” to? Before the public prosecutor, the author of the act that he considers illegal, or before the investigating judge? If a court – hence the investigative court itself, to which the request for the revocation of the act was directed due to illegality, or a higher court later in the appeal proceedings – is of the opinion that the investigating magistrate cannot assess until the investigation is in violation of this position against the constitution , namely against the constitutional principle of the reserve of a judge in questions of the restriction of fundamental rights?

2. This happened in the IT case. The prosecution has appointed two suspects as defendants; These rose before the examining magistrate of the Central Criminal Police Court and described their constitution as the defendants as illegal. This examining magistrate believed that he was empowered to assess his “complaint” and invalidated the actions taken by the public ministry, giving reasons. Such an invalidation, if consolidated, would have an impact on the statute of limitations count for criminal proceedings: since the defendant’s constitution causes the “accountant” of the prescription to go back to zero, this invalidation would block this effect and reduce the prescribing history, which was carried out by came behind. In this regard, the prosecutor appealed to the Lisbon Court of Appeal, claiming that the investigating magistrate could not rule on the matter before him due to a lack of jurisdiction and that judicial review was only allowed after the investigation in the EU stages instruction or assessment. The Relação de Lisboa gave the prosecutor a reason and overturned the annulment decision of the TCIC investigating magistrate because he was unable to comment on the matter. It was precisely this subtraction of jurisdiction that the interviewees “complained” to the Constitutional Court, claiming that the judge had a fundamental right to judge the legality of their constitution as a defendant and that they were subject to a length of identity and residence. This is because they are acts of the prosecution that negatively affect the fundamental rights to which they are entitled. A position in which I actually see myself.

We have therefore established that neither the Lisbon relationship nor the Constitutional Court decided whether or not these actions by the public prosecutor were illegal. You have previously decided only and only one point: the power of the investigating judge to check the legality of the defendant’s constitution and the application of the identity and length of stay during the investigation.

As is well known, the Constitutional Court came to the conclusion that the jurisdiction was not recognized as unconstitutional. The scope of his decision is far from exhausted with regard to the specific question of judicial review of the act of constitution of the accused. To resolve this specific problem, the Constitutional Court had to discuss and decide an earlier problem of much greater scope and importance: whether the Constitution allows the examining magistrate to deny any role in overseeing the actions of the public ministry and the ministry of the police carried out during criminal investigation has been carried out if the law does not expressly grant it the power to assess its legality, namely if it affects the fundamental rights of the persons concerned. The relevance of the issue was highlighted by the Constitutional Court itself and recognized that “it is not a minor issue”.

This is an issue that affects citizens’ right to a judge during the investigation and divides authors and courts. Exactly this problem was the basis for the successive differences between the examining magistrate Ivo Rosa and the Relação de Lisboa, who made numerous decisions to revoke his decisions: not because of the success or failure of the decision, but because of the consideration that the former did not have the competence had who accepted it to make them decide. For some, as in my case, the investigating judge needs to be able to intervene immediately and check the legality of actions by the prosecutor or the police when fundamental rights are achieved. for others, no, and judicial review should only take place after the investigation is complete. Each side presents constitutional reasons to support their thesis for or against.

3. The meaning of the decision that the Constitutional Court was asked to take is now better understood. Systemic relevance, one could even say. Because in order to decide whether the failure to judge the responsible investigating judge to assess the legality of the defendant’s constitutional files in the EDP case is constitutionally legitimized or not, the constitutional court first had to check whether the constitution allows the subtraction of jurisdiction to the investigating judge to control offensive legal acts during the investigation. And the Constitutional Court’s answer was clear: no, the Constitution does not allow such subtraction.

This ruling, reported by Advisor Mariana Canotilho, was also signed by Advisor-President Manuel da Costa Andrade, who at the time of departure from Ratton Palace said goodbye with one of his watermarks as an academic and as a judge: that of an uncompromising defender of the fundamental rights of citizens . A nice way to say goodbye

On the basis of this recognition of principles, everything will then have to be known in favor of legal competence in questions of fundamental rights, whether or not the act in question reaches the area of ​​fundamental rights of the target person: If so, the investigating judge must be able to intervene; if not, no. In this sense, it was important to assess whether the constitution of a defendant and his submission to a length of identity and residence constitutes a violation of fundamental rights. The Constitutional Court did not rule out the possibility that this could be the case in certain cases, but noted that it is generally and abstractly not. For this reason, he concluded that there is no unconstitutionality if the competent examining magistrate is not recognized in assessing deficiencies related to the defendant’s constitution and length of identity and residence.

4. Finally, it is understood what the Constitutional Court decided and what not.

It was not decided whether or not the defendant’s constitutional acts mentioned in the appeal were valid. This question of legality therefore remains open and its assessment is left to later stages of the process, such as instruction or judgment.

And he decided something with systemic implications: during the investigation, the examining magistrate has the power to judge the legality of actions that conflict with fundamental rights, even if the law does not give jurisdiction for this purpose. A position which in future will not only characterize the relationship between the Central Criminal Police Court and the Court of Appeal in Lisbon, but also of course the procedural measures of judges, prosecutors and lawyers who intervene in the Portuguese criminal proceedings.

This Constitutional Court ruling, reported by Adviser Mariana Canotilho, was also signed by Advisory President Manuel da Costa Andrade, who at the time of his departure from Ratton Palace said goodbye with one of his watermarks as an academic and as a judge: that of an uncompromising defender of the fundamental rights of citizens. A nice way to say goodbye.