Judicial proceedings as a means of undermining scrutiny of abuse in prisons
On 19 March 2014, SOS Prisões and the Associacão contra a Exclusão e para o Desenvolvemento (ACED, association against exclusion and for development) released a document concerning freedom of expression in the context of torture allegations after the acquittal of two ACED members, António Pedro Andrade Dores and José Preto, by the sixth criminal court in Lisbon. They had been charged of defamation following allegations by two officers from the judicial police in Braga in December 2009 about events dating back to August 2008. The document's opening paragraph summarises the matter as the acquitted parties understand it:
"This is the story of how a court presiding over a murder case can ignore allegations of torture and condition the activity of the defence lawyer, calling for their ad hominen prosecution. In this case, two officers answered the call and made this intention reality. Who, while they examined the criteria for taking penal action accepted to take forth this kind of prosecution as a judicial trial? What judge for preliminary investigations accepted to adopt a decision in these terms? Following the ruling, what consequences can be drawn? Can everything stay the same?"
The document raises two key issues. Firstly, it deals with the context of the case that concerned the treatment of a Spanish couple who were charged and convicted of murder (they are serving their sentence in Spain, where they asked to be transferred), and were heard by José Preto in relation to abuses that they claimed they had been subjected to in prison. Secondly, it deals with the effects on people who monitor human rights violations in prisons of the repeated charges brought against them (it is Pedro Dores' fourth acquittal) and how they affect their lives and undermine their activity. After receiving the original complaints from the accused, ACED asked lawyer José Preto to hear them, and he noted down their complaints and gave his advice. He informed the President of the Bar Association (Bastonário da Ordem dos Advogados), António Marinho e Pinto, in a letter. Informed of the content of the letter, ACED subscribed it, sending it to the organisations that it informs of abuses in prison when it finds out about them following requests for assistance. The document notes that "As it always does, ACED published what it had done".
"Non viable" proceedings as a form of intimidation
The plaintiffs found out about the letter to Marinho e Pinto posted on ACED's website and complained about its contents and publication during the Spanish couple's trial, when they were informed by a civil servant from the Caminha court's secretariat, in which José Preto was defending them ("in the circumstances and the state of mind that are documented in the letter"). Professor Dores did not testify. Summing up the case, Preto said he was surprised by the Caminha court's behaviour during the trial, as it "conspired against the defence lawyer by instigating participants against him". The public prosecutor had already sent the people liable to feel offended by the tactics used by the defence forms to partake in penal proceedings, to no avail. The secretariat supported this effort and instigated the submission of complaints, resulting in the subsequent proceedings.
This resulted in the instruction of a "non viable" criminal trial that hung over the defendants from 2009 to 2014, causing them inconveniences, while their defence lawyer and ACED colleague, Carolina Cipolli Preto, died during the proceedings. Professor Dores has been acquitted four times since 2004 after undergoing "abusive trial proceedings, sometimes simultaneously, in unfounded trials and as a result of his human rights activism. To be more precise, ACED has been persecuted in its activity by a permanent retaliation against Dores through the courts", which they refer to as a "siege through trials" that contravenes ECtHR jurisprudence.
It is the second time that an ACED jurist is acquitted (Marcos Aragão Correia and Dores were acquitted in Faro where they were charged in connection with allegations of torture suffered by Leonor Cipriano that were later confirmed by the Supreme Court of Justice). Moreover, Preto is Dores' habitual defence lawyer and could therefore not act in the trial, not even to defend himself. The document notes that Portuguese courts do not allow self-defence by lawyers (in violation of art. 17 of the ECHR), extending the inconvenience incurred and improving the intimidatory effect of proceedings instructed for this purpose, "such as this one". The plaintiff police inspectors asked for 30,000 euros in compensation in an "absurd" situation that is described in an extract of the sentence whereby:
- their institutional position was misidentified (as belonging to the Faro judicial police while they served in Braga)
- it was unclear whether they were the people referred to in the letter
- they claimed that their contact with the defendants was normal, without particular animosity
- officers Lourenço and de Figuereido's testimonies on 10 December 2013 indicated that they were informed about the letter posted on Internet by a court official during the trial, without it questioning their professional conduct
In short, the ACED/SOS Prisões document argues that it is possible to instruct a case to inconvenience someone for five years or more, without the plaintiffs having any clear connection with the matter at hand (or even managing to explain why they feel it concerns them), with complaints that did not meet deadlines and complaining about the effects of the supposed facts among their colleagues after they learned about them, although they were responsible for telling their colleagues about the letter. Three magistrates, two prosecuting magistrates and one instruction judge were deemed to support a "conception of normality that is in force which is in opposition to the law".
The President of the Bar Association's submission
Marinho e Pinto, the President of the Bar Association to whom the letter was addressed, submitted written evidence in response to a set of questions he was asked by the court on 15 December 2013. In spite of him not remembering the details of the issue at hand, he acknowledged that he knows the defendants as people who are "very committed" to defending human rights and "intellectually honest", "against abuses of power and human rights violations, especially when these abuses occur in circumstances in which the victims have no way of making their cries of complaint heard". After replying to the questions, noting that the letter "did not identify anyone in particular" and that references to police officers within it were "insufficient to identify anyone", Marinho e Pinto noted that:
"in his understanding the conduct over which Dr. Preto is accused on the basis of the acts has no relevance in terms of penal categories, as he merely transcribed what he was told by others, one of whom he was representing as a lawyer".
He goes on to explain that ignoring or concealing such facts that may have legal-penal relevance would run against any lawyers' duty, as immunities are provided precisely to ensure that they act as the defendant did. Moreover, punishment for revealing what they had been told by third parties would mean "punishing the messenger and not the author of the message". He went on to add that:
"Apart from this, the criminal prosecution against Dr. José Preto and Dr. António Pedro Dores may constitute, per se, an element of dissuasion for future complaints about human rights abuses. But their possible conviction would be a continuing encouragement for further potential human rights violations against other citizens".
Marinho e Pinto's submission also argued that it is important for limits to freedom of expression to be interpreted restrictively, considering that:
"The freedom to criticise and complain about irregular situations take on a fundamental nature in the democratic rule of law".
Moreover, regardless of whether it concerns the right to criticise, or to complain about situations or events that are relevant for social and public life, protection by the public authorities is the only means of making the exercise of this right effective. In reference to people who exercise this right, Marinho e Pinto concludes that:
"The right of [freedom of] expression will only find its full realisation if the public authorities, especially the courts, do not join attacks that are aimed at them and, more than this, remove the obstacles that constantly impede or hinder its exercise".
A strange understanding of "normality"
The document argues that these "absurd" proceedings were produced by arbitrariness that affected the defendants' freedom, and may have brought convictions, as the plaintiffs would not have gone through with it otherwise. Another basic consideration is that, in accordance with the law, the trial should not have gone ahead unless the different members of the prosecution services who were involved felt that a conviction was likely. Moreover, it asks whether magistrates feel that normal people should be able to or have to hear a woman in court state, without reacting, that:
- she was arrested with a violation to decency and sexual abuse while she was pregnant, without any identification other than a gun being shown
- the arrest warrant arrived six hours after the arrest
- in prison, she was interrogated receiving cigarette burns to the head (she was bald while testifying as a result)
- she was pressured to abort
- or to give her child up for adoption
- she was tied while she was in labour, as she was deemed dangerous
- she was subjected to unsolicited psychiatric treatment, which was forced upon her and with such a large dosage that the baby looked dead after birth
- 30,000 euros were extorted from her for a defence that did not take place, paid in cash, without a receipt, in the prison car park, on request from a lawyer
The document states that it appears that acting as if nothing had happened is what the prosecution services and instruction court consider normal, in view of the charges and proceedings that were undertaken. This idea of normality is obviously shared by the people who failed to investigate the above allegations, contravening their "binding duty" in relation to custodial conditions. José Preto reported the allegations in the acts, both in the court of first instance and before the Supreme Court of Justice, without anyone deeming that the matter required investigation, "demonstrating the degree of distance of the institutional organisations from any conceivable normality".
The document argues that this notion of normality also extends to placing a defence lawyer under absolutely unlawful professional constraints, with the prosecuting magistrate encouraging him to be accused due to his defence arguments. Preto witnessed the man he was defending prostrate in the dock because he was denied the insuline he needed to remain sharp and the woman medicated to such a point that she was sluggish, in the midst of a conspiracy by the court, as the secretariat also forms part of the court and pressed for charges to be brought against him by providing information to the police officers who were present as witnesses.
Finally, the document argues that Rosa Fito and Francisco Colmenar were not effectively tried, in view of the violation of art. 6 of the ECHR (right to a fair trial). ACED ends its document by thanking the defence lawyer, lamenting the passing of Dr. Carolina Cipolli Preto, recording that the female judge who acquitted Dores and Preto "did not accept the sequence that was expected. Deciding as the law imposed". It also wishes the best to the two defendants in the case, calling on them to open proceedings against Portugal through the Spanish courts, as "a sentence that emerges from such anomalies must not be deemed liable to be recognised in any European country". Preto stated during the trial that he was not aware of any similar cases since he had become a lawyer in 1987. The document was sent to organisations and groups including the Council of Europe's Committee for the Prevention of Torture "because it is right for people to understand what this 'normality' can do and has done to normal people".
Sos Prisões and ACED note, "Assunto: Liberdade de expressão face a alegaçoes de tortura", Lisbon, 19.3.2014, Ref. No. 48/apd/14
António Marinho e Pinto, written evidence to the 3rd section of the 6th criminal court of Lisbon
Portugal: Head of observatory on prisons charged with "offending" prison guard service, Statewatch news online, April 2008
Portugal: Lawsuits by prison officers' union against human rights defenders - Complaint against Dores for his human rights work withdrawn Statewatch news online, January 2009
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