Something is very rotten in the realm of the Public Ministry

For this prosecutor, also author of the order archiving the investigation in question (meaning that he considered there was no substance that would allow accusation), the European directive 2012/13/EU, of May 22, 2012which the judge cites in his request, does not apply in this case, as it concerns the information that judicial authorities must provide to suspects or accused persons so that they can prepare their respective defense. And since, the prosecutor argues, the judge has not been made a defendant nor is there criminal proceedings underway against him, he does not need to defend himself, therefore he cannot invoke the directive. The order triumphantly states that it protects the right of access to records only in the context of defense in criminal proceedings, it does not establish a general right for any person to consult a case.

It is true that the directive deals with what the prosecutor says. But Is it true that someone investigated in a criminal investigation is “any person” with regard to the right of access? Does the directive not primarily aim to certify that European judicial bodies do not function like the Holy Inquisition and other accusatory devices typical of absolutism, in which individuals find themselves deprived of any and all rights, including the right to know what they are or have been suspected/accused of, how and by whom they were denounced, and what the investigation and production of evidence consists of?

This being the objective of the directive, perhaps the prosecutor’s response is absurd — if someone actually accused has the right to access the entire investigation so that they can defend themselves and assess whether everything was done in accordance with the law, how come someone who was investigated and was not accused (due to lack of evidence) will not have the same access, to judge whether their rights were called into question without legitimate justification?

After all, the question of legitimacy, sarcastically invoked by the prosecutor, poses the opposite: what legitimacy does the MP have to deny someone who was the target of a criminal investigation the right to know how that investigation was raised and conducted?

And, obviously, it is not enough to claim, as has already been claimed, that any intrusive investigative acts, if any, were validated by one or more judges: if this were enough to prove legality, the aforementioned European directive would not be necessary; There wouldn’t even be a need for defense. Nor would there be, by the way, criminal investigations of judges.

But the order from José Ribeiro de Albuquerque, who as general secretary of the MP Magistrates’ Union published two articles of opinion in Observer expressing his concern with what he saw as an attempt to affect the independence of his corporation and democracy itself (Rio’s proposal that in the respective supervisory body, the Superior Council of the MP, there should be, as is the case with the Superior Council of Judiciary, a majority of members appointed by democratic bodies, instead of a majority elected by prosecutors), has one more refinement: that of making the applicant understand that, in addition to being “a anyone”, is not a journalist. Since, as it is public, journalists have already requested access to the investigations that had Ivo Rosa as the object and this access was denied, claiming the protection of the judge’s private life and personal data.

We therefore have a superb catch in our mouths: the judge cannot access it to determine whether his rights have been violated, because it is none of his business; journalists cannot access because it is necessary to protect the judge’s rights.