There are legislative proposals that, due to their gravity, require civil society to take a position. The one currently being discussed within the scope of the reform of the Criminal Procedure Code is one of them.
Under the argument of efficiency and procedural speed, a dangerous precedent is set: the State will now be able to financially sanction lawyers who, while exercising their mandate, carry out acts that a judge considers “manifestly unfounded”.
The mechanism is simple in form, but devastating in consequences. Fines between R$204 and R$10,200, increased by 50%, i.e., reaching R$15,300, if not paid within ten days. As if the values in question were bearable for the majority of citizens who find themselves involved in Criminal Justice issues.
Furthermore, for the second conviction in the same case, a certificate is sent to the Bar Association for the initiation of disciplinary proceedings. In other words: the lawyer who insists on defending the citizen he represents with determination risks not only his pocket, but his own career.
With the aggravating factor that what is “manifestly unfounded” must be determined by the judge in the case, based on his assessment and completely subjective criteria, as there is no objective legal criterion that delimits the concept.
In this way, a sanctioning power over the legal profession is, by nature, incompatible with the principles of legal certainty and proportionality left to complete judicial discretion.
The most pernicious impact of this proposal will not be felt in law firms or in the pockets of political defendants, famous defendants or the rich, but on citizens with fewer resources. The lawyer who sponsors a defendant within the scope of legal aid, already faced with fixed and meager fees paid by the State, now has to manage a personal financial risk.
The predictable result is self-censorship and limitation of defenses: fewer requests, fewer resources and fewer nullities argued. Not because such means of defense are unreasonable, but because the cost of seeing them labeled as “dilatory” can be unbearable.
On the other hand, for those defendants with means, for those, nothing will change. But, for the rest, that is, for the overwhelming majority of the population that goes through criminal courts, the defense will be amputated.
The “pilgrim idea” thus violates article 20 of the Constitution of the Portuguese Republic, which enshrines access to the law and a fair trial, and article 6 of the European Convention on Human Rights, which guarantees equality of arms between prosecution and defense.
The proposal objectively creates a two-speed Criminal Justice and does so, ironically, in the name of procedural speed, which makes the situation even more ridiculous: by generating new recursive incidents around the sanctioning decisions themselves, the practical effect will be the opposite of what was proclaimed.
The legal profession is not a corporation that defends its own interests when it warns of these risks. It is the last line of defense between the citizen and the punitive power of the State. A lawyer who hesitates before acting in defense of his client is not a more responsible professional, he is a defender paralyzed and conditioned in the exercise of his defense activity.
The State cannot simultaneously guarantee the right to a fair trial and punish those who work to ensure it. This contradiction is not a technical detail to be corrected in the field. It seriously compromises the credibility of the proposed law which, if approved, will seriously affect the compliance of the Justice system itself with the model enshrined in the Constitution of the Portuguese Republic.
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