The Reform No One Asked For and a Chessboard Unbalanced from the Start

I am part of a generation (perhaps the last) whose teachers taught us that “it is better for a guilty person to go free than for an innocent person to be imprisoned” and who read, in the words of António Arnaut, that the legal profession was the true public office, the last line of protection for all those who could not defend themselves.

On the chessboard, lawyers were the Queen and their clients the King.

Today, these teachings have been called into question and the Queen’s moves have been curtailed.

An unbalanced chessboard and a criminal justice system that has ceased to be reactive and become reactionary, putting constitutional safeguards and the freedom to practise the legal profession into check all at once.

If the defendants’ means of defence were once pawns, neatly aligned, today, with this law, they have been removed from the board. Defence mechanisms have been restricted and made subject to the discretion of whatever the judge may henceforth consider “irrelevant or merely dilatory”.

If financial means were often the guarantee of a more structured and closely engaged defence, today they have become the right to sit at the table and play. The examination of applications and appeals that the judge considers dilatory is conditional upon the prior payment of a fine that may exceed €10,000 (ten thousand euros). And if the defendant does not pay? There may be a right of retention or enforcement against their assets, and the application or appeal will not be examined. The rights of defence: check.

Now, we pay to see and, if we pay to see twice, a certified copy is issued and sent to the Portuguese Bar Association for the purposes of determining disciplinary liability. Lawyers: check.

Let us then turn to special proceedings — in other words, short games with little time to think. Previously limited to proceedings carrying lower maximum sentences, they are now applicable to all proceedings in which the Public Prosecutor considers the evidence to be “simple and clear”. Short games, for complex moves.

No one denies that investigations sometimes take far too long. What we deny is that this is the rule — and the Números da Justiça platform is the first piece of evidence of that — and that lawyers and defendants should be the ones to foot the bill for unjustified delays at the stage of proceedings in which they have the least involvement.

Proceedings are not slow and protracted during the preliminary judicial proceedings or at trial, where lawyers play a strong role. Proceedings are slow during the investigation phase. A phase in which the Rooks can only move in straight lines, the Bishops diagonally, and the Knights in an “L” shape, and where the lack of coordination in their movements delays the ultimate objective. And what has been done about this? We have neither taught the player how to play nor equipped them with more resources.

With this law, rights, freedoms and safeguards have been put in check. Only those who have never been the King on the chessboard have yet to understand this.

If some colleagues, in the face of this law, are calling for the death certificate of the equality of all citizens to be issued, I believe the chessboard itself has been broken.

Checkmate.