The Judges of the 5th Section of the Lisbon Court of Appeal (TRL), Ricardo Cardoso and Artur Conceição, constituted the journalist Felícia Cabrita, again, as an assistant in the Operation Marquis process. Contrary to the position of Ivo Rosa, who, quoting excerpts from the January-March edition of Revista de Concorrência e Regulação, argued that “by allowing the journalist to enter the process as an assistant, the exercise of his work functions cannot be removed, assuming then, it will use the information collected there to disseminate it, as is immanent to its activity ”, the magistrates appreciated that Felícia Cabrita had been admitted as an assistant, under the e) of paragraph 1 of article 68 of the CPP, according to which “assistants in criminal proceedings (…) can be constituted anyone in crimes against peace and humanity, as well as in the crimes of influence peddling, personal favoritism practiced by an official, denial of justice, malfeasance, corruption , embezzlement, economic participation in business, abuse of power and fraud in obtaining or embezzling a subsidy or grant. “
According to the Investigation Process No. 122 / 13.8TELSB, of the aforementioned court, and by order dated November 21, 2019, it was decided that “in view of all of the above, due to lack of interest in acting and a true abuse of rights in the procedural position and duties of assistant, Felícia Cabrita, Luis Miguel Albano dos Santos Rosa and António Azenha are removed from the capacity of assistant in the present case ”. In Tuesday’s dispatch, it appears that Ricardo Cardoso does not meet the opinion of Ivo Rosa who had imputed to the journalists mentioned above, “globally and not individually and concretely, the lack of interest in acting and the abuse of right “something that, for Ricardo Cardoso,” seems to have as a substrate, moreover, the understanding that the applicant, being a journalist, could not be an assistant in the process “, adding that” freedom of the press also constitutes a guarantee of scrutinium of democratic institutions and their servants ”.
In October last year, the journalist, who has more than 30 years of career, filed an appeal presenting justifications for this. In the first place, the professional explained that, if the appeal did not go up “separately, immediately and with a purely return effect, because its retention would render it absolutely useless”, there would be a violation of articles 20 – in which access to the right is enshrined and effective jurisdictional protection, legal information and consultation for all citizens as well as the adequate protection of the secrecy of justice – and 32º – integrates the guarantees of criminal process as the defense (as the appeal) and the notion that “the accused has right to choose a defender and to be assisted by him in all acts of the process, specifying the law the cases and stages in which assistance by a lawyer is mandatory ”- of the Constitution of the Portuguese Republic [CRP].
On the other hand, the journalist clarified that “the order under appeal (…) removed the status of assistant to the Applicant, without attributing to him the practice of a concrete fact that violated the rules of conduct provided for in the CPP [Código de Processo Penal], that could be considered as abuse of rights ”. The journalist also states that “the order under appeal did not comply with the adversarial principle, to which I was obliged”, since this principle “requires that every procedural participant be given the opportunity to be heard and to express his reasons before any decision is taken. decision that affects you ”. Finally, as a applicant, he evoked that “he never and under no circumstances, in the instruction phase, revealed information, wrote any news or performed any act, of which it could be concluded that he had abused the assistant’s right” and concluded with the idea that the order ended up preventing him from “exercising his rights”.
The following month, the weekly SOL reported which Ivo Rosa considered “that the intervention of journalists was limited to the collection of information. Decision comes after Relação de Lisboa gave the judge a red card and considered that assistants were entitled to be present ”and, effectively, Ivo Rosa reiterated that“ there is even a deliberation by the Professional Journalist Committee [CCPJ], delivered on November 3, 2015, in which this commission found the exercise of the profession of journalist “incompatible” with the ‘constitution as an assistant in criminal proceedings over which [se] develop work ‘”. In fact, according to the information available on the CCPJ official website, it is possible to read that the journalistic themes explored that are linked to processes in which journalists have the function of assistants end up compromising their “independence, professional integrity and impartiality duty”. In agreement with the CCPJ, in the appellate order of the TRL, it can be seen that “(…) there is no doubt that the intervention / performance of assistants / journalists in the present case was limited to the collection of information contained in the process” being Felícia Cabrita, in the judge’s opinion, one of the journalists accused of having subverted her procedural figure and position that had been attributed to her.
In February of this year, in an interview with the weekly SOL, Felícia Cabrita affirmed: “They talk a lot about me in the wiretapping, which are not at all creditable, but there is one thing that I really want to be: the ‘program’ that they will not be able to cut from their lives”, even to the then Attorney General Fernando José de Matos Pinto Monteiro. But it is also important to note that magistrate Ricardo Cardoso once again opposes judge Ivo Rosa: in February 2019, Cardoso accused the judge of breaking “democratic legality” after violating “the flagrant limit of competence of the investigating judge” such as the “autonomy of the Public Prosecutor” during the investigation phase of the process. After this strong censure of the magistrate of the Central Court of Criminal Instruction, Ricardo Cardoso did not forget the reference to the quote “When the press does not speak, the people do not speak. The press is not silent. Shut up the people ”, by the English poet William Blake, in the order in question, to defend the relevance of preserving press freedom and free access to information.
It is recalled that at the center of the investigation of Operation Marquis are the more than 23 million euros collected by Carlos Santos Silva, childhood friend of José Sócrates, in Switzerland, and he transferred to Portugal – in 2004 and in the period between 2010 and 2011 – a portion of the money that was declared, at the tax level, by Santos Silva, under the Exceptional Tax Regularization Regimes I and II.
It is important to note that, in the name of Socrates, the direct receipt of amounts of illicit origin was not detected. Nevertheless, the Public Ministry believes that the accounts created by Santos Silva in offshore names are the result of his childhood friend’s corruption for various reasons, such as the fact that the former Prime Minister paid for holidays, current expenses, a house in Paris and even making loans to friends extremely easily. Denying that he owns the more than 23 million euros, the former deputy secretary of state of the Ministry of Environment and Minister for the Environment and Spatial Planning, under the government of António Guterres, explained that he had received loans from Santos Silva although he never managed to reveal their exact value.
It all started on November 21, 2014, when José Sócrates was detained by agents of the Tax and Customs Authority on arrival at Portela Airport, on his return from Paris. After three years, in March 2017, the lawsuit had 28 defendants, 19 individuals and 9 legal entities. The list of defendants includes names like José Sócrates – he was in preventive custody for nine months and is accused of the crimes of passive corruption of a politician, qualified tax fraud, money laundering and forgery of documents – João Perna – driver of the former prime minister, who performed the function of “bridge” between Carlos Santos Silva and the then ruler, transporting envelopes with money and also receiving amounts in his bank accounts. He was accused of the crimes of money laundering and possession of a prohibited weapon – and Gonçalo Trindade Ferreira – a lawyer who worked with Carlos Santos Silva and was accused of crimes of money laundering and forgery of documents.
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