Portugal’s legal system so degraded it is now threatening the rule of law
If you read the European Commission’s Rule of Law Report for Portugal it comes out fairly positive compared to some of its EU partners.
The European Commission recognises the ongoing measures to respond to the efficiency challenges within the Portuguese justice system, particularly administrative justice, specifically human resources, and the efforts made to digitalise processes.
The Commission also highlights the approval of the National Anticorruption Strategy, as well as the associated legislative measures to revise the criminal proceedings scheme in order to ensure swiftness of complex proceedings, noting the concerns stated by the Public Prosecution Office concerning lack of resources.
“Under the framework of a highly positive appraisal of the Portuguese constitutional system and its checks and balances, the parliamentary, judicial and administrative controls of the extraordinary measures adopted by the Government in the pandemic were specifically valued”,it states.
But for those living and working in Portugal, whether magistrates or the ordinary man in the street, whole swathes of the population simply don’t see that. The EU might as well be referring to a Portugal on another planet in a faraway galaxy of which we know nothing.
The small echelon of the super wealthy can afford the fat-cat lawyers to delay criminal cases time and time again through a succession of appeals until the time limit to investigate, hear and try these cases expires. And where the poorer in society do now get a fairer hearing, the middle classes are largely forgotten.
The morosity and complexity of the legal system here has meant that a string of cases with named legal suspects, or ‘arguidos’ as they call them, from the Portuguese world of politics and business, involved in a string of scandals over the past 20 years often involving senior politicians, corporate directors, high profile banking figures, maverick entrepreneurs and resort developers, rarely gets to court and if they do, it drags on and on until time runs out and cases get shelved.
Cases in Portugal all to often go on interminably, prosecuting judges fall sick, loop holes are found and exploited, and familiar TV images of lawyers and their assistants carting piled high boxes into Lisbon’s courts appear on the nightly news while citizens shrug and frown in disgust and blame the judges, the lawyers, what they think is a corrupt legal system, and the government.
Then there is the problem of an outdated and cumbersome judicial system, lack of investment in modernising it, a lack of staff and overall human resources which means judges and magistrates who should be hearing cases are often chained to desks doing admin work.
In short, Portugal’s legal system is broken. It simply isn’t working and successive governments, both on the left and the right, neither seem to have the money, the resources, the inclination, or the power to stand up to lobbies to change the situation.
Meanwhile, the only people to profit from the situation, particularly at a high level, is the small number of very powerful law firms which all too often seem to have more political influence than the politicians themselves.
The problem of just how ridiculous Portugal’s legal system has become was highlighted by its own top representative, the President of Portugal’s Lawyers Association, Luís Menezes Leitão.
Addressing members of the International Club of Portugal (ICPT) in Lisbon on 10 May, he went through a checklist of exactly what is wrong with Portugal’s legal system at a public level in his speech ‘Justice and the Rule of Law in Portugal’.
“What our justice system is going through right now is a serious problem for Portugal because justice is one of the core values for the State. If the legal system doesn’t work, the country will find itself in crisis”, he said.
“Unfortunately our justice system in Portugal is operating in a very weak manner, which is putting the State of Law at risk”, he added.
For starters, the lawyer said the Portuguese know just how slow the Administrative and Fiscal courts operate and that often it can take a decade for a court to reach a decision.
The situation is not only seriously prejudicial to its work, but is also extremely damaging to the rights of Portuguese citizens who are vulnerable to the arbitrary nature of decision making of State and public bodies.
As a consequence, the Portuguese Lawyers Association has formed a working group to come up with proposals to make legislative reforms, and changes in how cases are managed to resolve the time it takes for cases to go through the courts and be heard.
A survey carried out by the public consumer rights watchdog Deco published last year showed that there had been an improvement in the level of confidence that the Portuguese had in the vast majority of national and international institutions since its last survey in 2016.
However, a high number of those quizzed were convinced that public organisations and national institutions “lacked independence” and were “permeable” to the interests of governments and economic lobbies. They also criticised the “lack of structural information” which only fuelled a general mistrust.
And while the pandemic did increase the public’s confidence in the Portuguese National Health Service, the number of stories that littered the Portuguese press about certain people jumping the queue to access vaccines ahead of the sick and elderly because they worked within the system, or had access to ‘cunhas’ or contacts, revealed the still corrupt nature of Portugal’s administrative system, and the ability to traffic influences if you know the right person in the government or municipal council departments involved.
In fact, corruption and trafficking of influence is not merely confined to the rich and powerful in Portugal who pay sophisticated lawyers, or know a mayor, or have a contact within a large bank and have the money to grease palms to get fast-tracked planning permission for a development or improvements to their homes. It is glaring, however.
These have sufficient finds or friends to provide the with a ‘Get Out of Jail Free Card’ as has been the case with several high profile cases in recent years such as Operation Marques and Operation Red Card.
Operation Marques, for example, was a media sensation in Portugal in 2021 after a judge’s ruling to dismiss most of the corruption charges against a former prime minster seriously undermined the public’s faith in the judicial system, and arguably only helped the gains Portugal’s far-right populist Chega party made at the last general election when it became the third most powerful party in the county on its anti-corruption ticket.
Then there was Operation Red Card which pointed to how a former powerful football club boss who not only allegedly received bribes which could have been worth up to €10 million on football player transactions, but also borrowed millions from a bank to fund real estate projects in Brazil – a bank which the Portuguese tax payer has largely funded over the past eight years.
The allegation here was that a director inside the bank may have helped the ex-football club manger to get highly preferential conditions on these loans. Even worse, the director involved was tipped to head Portugal’s new development bank charged with handing out EU bazooka funds to companies and projects vital to modernise and digitalise Portugal’s economy.
These were just two of the big corruption cases from around 10 others that emerged in Portugal since the country’s financial and banking crisis of 2011-2014.
Corruption endemic in Portuguese society
But while the old expression “In Portugal only the poor and unknown go to jail” seems to ring true — actually one influential town council boss did in fact go to jail, but it didn’t do much harm to his popularity. Absurdly, he was able to stand for reelection and is now that town’s mayor because of his Robin Hood attitude applauded by much of the electorate — how far is Portugal’s own people guilty of the endemic corruption and trafficking of influence that has dogged the country since — well, forever? (Read a novel by famous 19th century writer Eça de Queiroz and you’ll see things haven’t changed much)
Sophia Vala Rocha a member of the centre-right PDS party who has served at Lisbon City Hall four terms as a councillor says the issue of trafficking of influences is not just at a high political level, but permeates down throughout the entire strata of Portuguese society to the bedrock.
“There is corruption in Portugal and it is a problem, but the accusations are always mounted against the politicians. I can’t tell you how many people phone me to ask me for a favour regarding a council matter. People want favours, jobs, houses for themselves, fast-tracked planning permission.
“The problem is that when they ask a friend who works in the public administration for a favour, to use their influence with the people they know on the inside, they don’t seem to understand that they too are part of the problem of corruption in Portugal”, she says.
Luís Menezes Leitão says that the public perception that Portugal’s justice system is rotten actually resides in a lack of public investment in the judicial system.
“We have a system whereby the Ministry of Justice has immense revenues of its own, at least funds from sources such as notary, registry and other legal services fees. This perception often results that the Ministry of Justice doesn’t need funds and so is often forgotten in the State Budgets”.
The result has also been that no political heavyweight has put themselves in front of the justice department to change the situation. There is also a chronic lack of human resources, 1,900 judges but only 1,801 are working.
For example, 2020 was a difficult year because of the pandemic whereby the majority of judges (84%) and Public Ministry magistrates (67.4%) worked under a teleworking regime during the first lockdown.
Since then, however, some areas of Portugal have such a chronic lack of human resources that there were “foci of localised burn out from overwork” with “women magistrates particularly exposed to higher levels of exhaustion”.
And in 2021 the Public Ministry had less working magistrates despite more places being available, meaning that in June 2021 there was a deficit of around 100 procurators, and in the courts the number of judges available was actually below the permitted legal level — a situation that has been an issue for years.
This is largely because magistrates are not exercising court functions, but are busy in the understaffed administration doing public legal admin rather than carrying out judicial functions.
According to a report, the total number of magistrates in Portugal in 2022 was 1,678 – 587 men and 1091 women. Of these, 1559 were working for the State Procurator, Public Ministry Departments and Courts. In 2021 some 119 magistrates were not working in areas they should have been.
In the Public Ministry there is a shortage of 195 magistrates and a shortage of 1000 judicial administrative staff overall.
“This has led to the problem whereby most of the people running our judicial system are at or near retirement age, and without new blood, funding, and a modernisation and overhaul of the system, it will be difficult to deal with the huge backlogs of cases that makes Portugal’s Judicial system so cumbersome and slow”, concludes Luís Menezes Leitão, the President of Portugal’s lawyer’s association.