Welcome to the Official page of the Presidency of the Portuguese Republic

Mister Speaker,
Prime Minister,
President of the Supreme Court of Justice,
Minister for Justice,
Attorney General,
President of the Law Society,
Ladies and Gentlemen,

The opening of the Judiciary Year is a privileged occasion to reflect upon the state of Justice in Portugal. A reflection which is required serene and passionless, free from conditionings and corporative bias, since Justice, in Portugal, is going through a very demanding time.

Several enquiries and opinion studies show that Portuguese Justice is facing a serious challenge of credibility. A challenge which is not only directed towards judiciary operators, but which equally queries politicians and, very especially, those responsible for the legislature.

The quality of the legislation is an issue which, as you are aware, has been one of my prime concerns. To this I referred, in this same Hall, on the occasion of the opening of the 2009 Judiciary Year.

In effect, I consider that the absence of legislative quality is a highly disruptive component of the proper operation of our justice system. I am not only referring, obviously, to the technical-juridical deficiencies of the legislative acts or to the lack of clear and objective legal solutions. Should this be the only issue, the interpretative and corrective work of the courts would largely overcome it.

However, the issue of the quality of the legislation involves other angles, which the juridical power is unable to resolve and thus ultimately becomes the victim of a situation to which it is alien.

It is immediately evident that much of the legislation produced amongst us is not adequate to the Portuguese reality. It is a result of the legislator’s impulses, often dictated by pure political or ideological motivations, and does not meet the real needs of the Country, nor does it allow that the Portuguese feel familiar with their national legal system. .

It is necessary to legislate more rigorously, but above all with greater reflection and foresight and with a greater sense of adequacy to reality. The presumption to change the reality of life through legislation rarely produces good results.

In some cases, laws even produce effects contrary to the wishes of legislators. The divorce law was approved to diminish litigation but, after it came into force, litigation in the Family and Juvenile courts will have substantially increased.

This example, amongst many others, brings out the need to legislate in close liaison with those who operate in Law, since these know the reality: they have the knowledge of experience, a knowledge which must be the subject of reflection by those who write the laws.

On the other hand, it is essential that the way the structuring laws of our juridical system are applied is strictly followed up and monitored.

It is fundamental to check the practical results which are or may be obtained by the legal solutions which are adopted in vital areas for the security of the people or for the confidence of the business circles.

When legislation is issued a serious effort must be made to anticipate the potential consequences of the adoption of the respective legal solutions.

It is not difficult to find instances of what I am saying. In the area of the juridical system of divorce, as everyone knows, I called attention, in due time, to the problems which could arise. I did this in two messages which I addressed to Parliament, on 20 August and 21 October 2008. I then alerted to the difficulties that could arise from the application of the law and to the possibility of a significant increase in litigations, and I even suggested, when enacting the law, the adoption of instruments to follow up the new divorce system.

Currently, the issues caused by the juridical system of divorce are recognized by the great majority of operators of the judicial system, and I am pleased that it has already been considered necessary to provide for adjustments imposed by reality.

In another area, that of the extra-contractual third party liability of the State, I also had the opportunity, in a message addressed to Parliament, on 24 August 2007, to call attention to several malfunctions contained in the new regime. Also here warnings are arising relative to the practical results to which the application of the regime in force may lead, and to the need to carry out a deep reflection on the internal balance of that law, due even to the inequalities that it brings out between different officers of the State.

In the area of procedural legislation, with special regard to the Penal Process Code, it is equally necessary to carry out a serious assessment of the adopted legal solutions and of the results produced. Measures accepted as to detention outside “flagrante delicto”, as to preventive detention and as to the delay for the completion of more complex investigation, just to put forward a few examples, led to results which have very serious implications for the security of the people and for the prevention, investigation and fight against criminality, especially in the case of organized and highly violent crime.

Finally, within the framework of the fight against corruption, several loose legal solutions have been proposed. However, we are forced to conclude that even here legislation is not shown to be adequate to reality, which requires that this theme returns cyclically to the political agenda, without however any material results having been found which could be considered effective for the improvement in the transparency of our public life.

Ladies and Gentlemen,

There is a long and difficult path to be followed within the scope of procedural simplification and celerity. But we have to act quickly, firmly and determinedly. I believe it possible to generate consensus to find solutions, since nobody is happy with the current state of affairs.

We cannot tolerate situations such as that which has been occurring, for several years already, in the area of executive action. A country which has, in its courts, approximately one million of pending enforcements is a country which faces a grievous credibility problem in the terms of the Rule of Law. The claim in our Constitution that Portugal is ruled by law is worth nothing when that law does not arrive in time for the benefit of its people.

Competititvity and investment attractivity are not in line with a situation which fatally generates lack of confidence from business circles.

The delays in justice and the congestion in our courts have reached worrying levels for Portugal’s image, be it in the eyes of the Portuguese, be it in those of our partners in the Union.

Justice is also called upon to perform its role in the fight against the crisis we are living. Investors, shareholders, depositors in banking institutions, entrepreneurs and workers require quick justice, capable of compensating the injured parties and to punish fraudulent practices, whenever these occur.

It is not understandable, on the one hand, that in the current situation of public accounts, the State faces enormous difficulties in collecting judicial costs, exactly because of the delays occurring in executive actions. Equally, it is not understandable, or prestigious, that the Portuguese State is subject to sentencing in international proceedings due to delays in the operation of the justice system.

Again in this respect we register with concern the pending situations of procedures in the appeals office, with a continuous worsening of global procedures in abeyance, in the last five years, amounting, on 30 June 2009, to more than 39,000 procedures.

Tributary justice is thus faced with a delicate situation which demands urgent measures, in order to avoid the perverse effects in terms of procedural extinguishment, entailing grievous losses for the public treasury.

Ladies and Gentlemen,

A recurring issue in the operation of our judicial system was again debated last year. I refer to the issue of investigation secrecy and of the relationship between judicial operators and the media.

A transparent, disciplined and tranquil relationship between justice and the media is essential, since it is from this relationship that the image of the judiciary system with public opinion largely depends.

It is not the President of the Republic’s duty to propose legal solutions, under pain of interfering in the sphere of activity of other sovereign bodies. I anyway believe that the issue of infringement of investigation secrecy is not just a judicial problem, but also one of civic culture and responsibility.

It is necessary that the judicial operators respect investigation secrecy, as it is also necessary that the media understand that it must not condone a situation that affects the essential principles of the Rule of Law, such as the principle of presumption of innocence.

Criminal investigation must not be disquieted by information leaks or external interference. Criminal investigation must proceed on its way until the end, effectively and quietly.

Control and disciplinary bodies have, in this field, to carry out a more attentive and observant action, a stricter monitoring, which must be followed by the application of due sanctions whenever the law is not respected.

I know that compliance with the law is a permanent concern of magistrates. I know that Portuguese magistrates act seriously, honestly and discretely, and that they want to properly carry out their work with independence, as I had the occasion to point out in the New Year Message I addressed o the Portuguese. Now, when addressing all the judicial operators, I show confidence and appreciation for their work. I do not doubt their endeavour or their daily efforts, in the difficult task to deal with complex legislation and many thousands of processes.

Portugal is proud of being a State which observes the Rule of Law, a democratic Republic of free and equal citizens, where nobody is above the law.

I want to express, as President of the Republic, my deepest respect for the Portuguese magistrates. And to all of them I wish a judiciary year of work and dedication to a common cause, the cause of Justice, the cause of Portugal.

Thank you.