The recent revelation that the then Criminal Investigation Judge (JIC) Ivo Rosa (currently, Judge Judge) was the target of a three-year investigation by the Public Ministry (MP), forces us to a deep reflection on the architecture and separation of powers in a democratic State of Law. The central issue does not lie in the premise that a judge is uninvestigatable – as no one is above the law –, but rather in the circumstances, the methodology and, crucially, the public perception of the false balances that this episode exposes.
In fact, it is impossible to dissociate the analysis of this case from its chronological coexistence with the decision not to prosecute José Sócrates in Operation Marquês. The failure to prosecute most of the crimes for which the former prime minister had been accused represented one of the most remarkable moments in Portuguese justice in the last decade. It should be said that, subsequently, the Lisbon Report reinstated almost all of these crimes that the JIC archived. The subsequent investigation into JIC Ivo Rosa, although legally founded, generates a fog of suspicion about the timing and real reason for the investigation that ended up being archived due to lack of foundation.
The profanity of a judge’s life is, in itself, corrosive to judicial independence and authority, a fundamental pillar of the separation of powers in any democracy. A Criminal Investigation Judge works as the “judge of guarantees”, whose main function is to monitor the legality of the Public Prosecutor’s Office’s procedural actions during the investigation phase. When the supervised body (MP) investigates its supervisor (JIC), the control structure is dangerously inverted. The classic question inevitably arises: Who watches the guardians? Who supervises the investigator?
In a State of Law, the answer should be clear and based on mechanisms of checks and balances transparent, credible and effective. The careers of the current President of the Superior Council of the Judiciary (CSM), Judge Counselor João Cura Mariano and the Attorney General of the Republic (PGR), Amadeu Ribeiro Guerra, legitimize, from the outset, the trust of citizens and legal professionals in the justice of the Superior Courts and the PGR. However, the situation in question, triggered by an anonymous complaint, requires, at the very least, a formal and detailed explanation from the PGR to the CSM, as a way of safeguarding the regular functioning and cooperation between institutions of the justice system. Only serious, solid and credible evidence could justify such a long and intrusive investigation. Never based on an anonymous and vague complaint. The opacity surrounding the complaint and the investigation, which culminated in its shelving, increases the concerns of those who are attentive and want justice that is respected, respectable, credible and independent.
Red lines were unequivocally crossed that set off alarm bells. The subordination of all institutions to the Constitution and the Law is the ultimate guarantee of the legality of their functioning and respect for the rights and freedoms of citizens. When doubts are raised about the legitimacy and opportunity to investigate a Freedoms Judge, the trust of court professionals and justice users is severely shaken. This case is not about the then Investigating Judge Ivo Rosa, but about the prevalence and subordination to the Law and the Constitution on the part of those who investigate and guaranteeing the independence of those who judge.
Lawyer and founding partner of ATMJ – Sociedade de Advogados