Reforma da Justiça

I have the privilege of following the case of the McCann’s little girl from abroad. I have also benefited from the environment where I work, a top US law school. The McCann’s case is a sad story. There is a big loser, the poor girl, and no winner. Nevertheless, this case will hurt many more people long before it is finished (and I don’t mean just the parents). It will have serious consequences for the Portuguese and British press as well as for criminal procedure in Portugal (much more than previous cases such as Casa Pia or the Outreau affair in France). My interest in the case is pure academic. I don’t know what happen to the girl, I don’t know whether or not the parents are guilty; I don’t know whether or not the police and the Portuguese authorities have been incompetent. There is however a couple of things that seem clear to me at this point:

1) The British and Portuguese press has been insane and totally irresponsible in the way they have treated this story. I don’t just mean the xenophobic and prejudice tones of the media in both countries (in fact, a much more balanced cover is provided by the Spanish or the North American media). Many op-eds are just insane. Bloggers went crazy. Respectable journalists, influential opinion-makers, politicians, ambassadors and even judges have engaged in this insanity. As if this story was about Portugal v Britain. As if there was a conspiracy in Portugal or in Britain to determine the outcome of the case one way or the other. It is appalling to read or hear people talking about (non-existent) facts, commenting fantastic new developments that nobody confirmed. If we look back to the last month, most press has systematically failed predictions and has reported facts that are denied by later events. The role of the British and Portuguese press in this case is simple shameful. More shameful is, however, the contribution of well-known public intellectuals in Portugal and in Britain to this insanity.

2) The legal experts populating the Anglo-American media are incredibly bad. Obviously a forensic is a forensic in London, New York or in Lisbon. But those pompously introduced by the media as “legal experts” are so ignorant of Portuguese criminal procedure that is beyond belief. The things I have heard are just crazy (from plea-bargaining (!!) to ludicrous considerations about jury trials in Portugal or mandatory disclosure of evidence in order to obtain warrants from a judge, etc.). Many do not even realize Portugal is a civil law country, they simply assume Portugal has Anglo-American criminal procedure and go on making “expert” comments (i.e., influencing public opinion) that only adds to the confusion. True, there is no good source in English for Portuguese criminal procedure (for Portuguese law in general, with the exception of the recent book published by Almedina). However anyone with a reasonable knowledge of French and German criminal procedure could make a much better job than these clowns.

3) Portuguese criminal procedure (recently reformed by a commission headed by the current and prolific Minister of Interior) has much irrationality, but no more and no less than any other criminal procedure around the world. True, the “arguido” legal status is of difficult comprehension (the standard justifications are complete illogical such as it offers more protection than the status of witness, but that is simply because the legal standing of witness has been neglected in the last 30 years for reasons beyond my comprehension). True, the “vow of silence” imposed by the investigation has no rational explanation except for an ineffective technology of law enforcement (unfortunately the leaks from all sides just show that after the nth reform the Portuguese authorities still do not get it). Most irrationalities of the Portuguese criminal procedure are the product of a parochial legal culture, and not idiosyncratic of Portugal itself. Many comments in the foreign press should help the Portuguese authorities to realize the serious problems we have with our criminal procedure, but as the recent reform just shown, as long as criminal procedure is the monopoly of a small number of faithful locals who refuse to look to the outside, we are not going very far.

# posted by Nuno Garoupa @ 10:43 da tarde