Sunday, January 29, 2023

|MEDEL|

Interview to Filipe Marques

The Portuguese newspaper Publico published an interview with Filipe Marques, former President of MEDEL, on his 5 year mandate.

You may find the translation in English of the Interview here:

“PORTUGAL AND ITALY ARE AMONG THE FEW COUNTRIES TO BE ABLE TO SAY THEY HAVE AN INDEPENDENT PUBLIC PROSECUTION SERVICE”

Judge Filipe César Marques presided over MEDEL – Magistrats Européens pour la Démocratie et les Libertés between 2017 and the end of 2022.

Ana Dias Cordeiro (text) and Paulo Pimenta (pictures) – 28 December 2022, 6:30

In the presidency of the international organisation European Magistrates for Democracy and Liberties (MEDEL) – since 2017 and until the beginning of December – the Portuguese judge, Filipe César Marques, lived closely with critical situations in countries such as Turkey, Afghanistan, Hungary or Poland which, to varying degrees, endangered the rule of law, judicial independence and, very particularly, the physical integrity and rights of colleagues from magistrates’ associations that are part of the organisation and for which MEDEL has interceded.

Now leaving the presidency, Filipe César Marques describes the activity of this association of judges and prosecutors as that of “giving visibility to causes that do not have it” in defence of the rule of law and protection of fundamental interests. “The rule of law is judicial independence, which is very important, but also, Social Rights, the Protection of Migrants and Minorities,” he says. Born in Póvoa de Varzim 46 years ago, the judge of the Barcelos Labour Court has been since 2021 in service commission assisting the judges of the Court of Auditors. Between 2006 and 2012, he served on the board of the Association of Portuguese Judges, and at the end of those six years he was chosen to represent ASJP in the association he would come to preside over five years later. MEDEL, which brings together 24 associations of judges and public prosecutors from 16 European countries, was created in 1985 in Strasbourg.

Apart from the action brought against the Council of the European Union, related to the provision of European recovery and resilience funds to Poland for not respecting the independence of the judiciary, what do you highlight from these five years of your mandate at the head of MEDEL?

That was perhaps the most important initiative, within the European Union, that was started during my mandates, together with three other organisations of prosecutors and magistrates: the case we started in the Court of Justice of the European Union against the Council of the European Union, to make the provision of European recovery and resilience funds to Poland conditional on compliance with rules on the independence of the judiciary.

What has been the outcome so far?

The Council of the European Union took the view that there are a number of violations of the rule of law in Poland and said it would release the funds if certain milestones were met. In our action, we say that you cannot negotiate with rulings of the Court of Justice of the European Union (CJEU). If it rules that there are 20 points wrong with the independence of the rule of law in Poland, the EU Council cannot say ‘if you meet five we will give you the money’.

If there are 20, only when these 20 are settled, and they are settled as the Court of Justice determines, should the money be unblocked. The funds have not yet been paid and it will be the European Commission that decides how the tranches will be paid. We have asked the CJEU in Luxembourg to annul that decision of the Council as it disregarded what the Luxembourg court itself had ruled.

Do you already have any clues as to what the court’s decision might be?

The court may say that we have no legal standing and the action falls through at the bottom. But we, MEDEL, argue that we have legitimacy because, as an association representing 18,000 magistrates [from countries] of the Council of Europe, some of them from the European Union, we are directly and personally affected by this. Our board has a Polish judge who is one of those persecuted with several disciplinary proceedings. This affects MEDEL also because of this, because one of its members is directly affected. We do not know the outcome, but if the court decides it is well founded, it will be a historic action.

What other important milestones are there to highlight in MEDEL’s activity in recent years?

One issue that I am very sorry to see unresolved is in relation to Turkey. The Turkish judge Murat Arslan, the president of Turkey’s MEDEL member association, has been in prison since October 2016 serving a ten-year sentence, plus a one-and-a-half-year sentence for allegedly insulting the Turkish president in a letter he wrote to his wife. One of the first measures after the attempted coup that year was the dissolution of the association that belongs to MEDEL. We do not recognise this dissolution and we continue to consider them as members. This is perhaps the situation that pains me the most to see continue in the same way since I entered the presidency.

Can MEDEL initiatives have a greater impact in Poland, Hungary or Romania, for example, because they belong to the EU?

[Our intervention] is much more effective because we have the European Union. In the case of Turkey, the situation becomes even more difficult because Turkey has Europe in its hand with immigration issues. What we can do and are trying to do is that [the situation] does not fall into oblivion. Judges have been sacked, their salaries have been cut, their assets have been confiscated, they have been forced to leave the country and to apply for refugee status in other countries.

We are trying the same thing in Afghanistan, from where female judges were forced to flee to Pakistan where they have been living in a precarious and intolerable situation for almost 18 months. They managed to escape with the help of MEDEL, 14Lawyers and countless other NGOs who worked tirelessly during this period, but have since been living in a legal limbo that contradicts all the public declarations of good intentions made by Western governments in the days following the Taliban takeover [on 15 August 2021].

How much pressure does MEDEL have in the face of the so-called ‘authoritarian drift’ in Hungary?

We have no associates from Hungary. We have an observer association that recently started to come to the meetings but for a long time we were not able to have contacts with Hungary because the Hungarian judges themselves were very afraid to contact MEDEL. And this was for fear of reprisals, which in itself says a lot about the situation in Hungary.

Hungary was the warning signal that nobody wanted to listen to. The report by Rui Tavares [when he was an MEP], long before what was happening in Poland, already denounced what was happening in Hungary [with the changes to the Constitution in 2012]. Nobody imagined that this could happen in Poland. The European authorities were very tolerant of what was happening in Hungary.

And with that, has a precedent been set?

Yes, and above all it has allowed the political game to get ahead.

This month the member states reached an important agreement on several fronts, including the approval of the Hungarian Recovery and Resilience Plan, but here, for the first time, with a suspension of transfers of European funds, to make the delivery of the entire sum conditional on compliance with measures related to the independence of the judiciary, the fight against corruption and the application of transparency rules in public procurement. Was it a victory?

I tend to be optimistic. Of course there are many people saying that this could not be negotiated if there is no compliance with the principles of the rule of law. I always tend to look at the starting point. Four years ago, we were talking about the possibility of having a regulation to freeze European funds if there is no compliance with rule of law rules. And four years ago, when we – MEDEL and other associations – started talking about this, they called us utopians. In four years, for the first time, this has been applied. So I see this as a very positive sign. It is the first time that, within the European Union, it has been said ‘you either comply with the rules of the rule of law or part of these funds will not see them’.

Are the corruption cases involving one of the Vice-Presidents of the European Parliament, Eva Kaili, an example of problems that can be prevented by concerted action by MEDEL?

No. The issue here, in essence, is the two things that have been said: on the one hand it is worrying that it happens, on the other hand it is good that it was discovered and investigated to the full extent as it was. Apropos of this, we saw on Twitter Viktor Orbán making fun of it and saying ‘so now they are very worried about corruption in Hungary?’ The big difference is that in the EU the case was investigated and found out.

Apart from Hungary, which countries show less independence of the judiciary from political power? There is the case of Poland, which you have already mentioned. What are the others?

The independence of the judiciary is not a given, nor is it a static reality. Over time, there are greater or lesser attempts to exert pressure and there are structures that, due to a series of factors, are more resistant than others. In view of what we see, and the decisions given by the courts of Luxembourg or Strasbourg, there are systemic problems in Poland. There is even a systemic problem of a deliberate attempt by the executive to control the judiciary. And it’s not just me saying this, but the Court of Justice and the Court of Human Rights. In Hungary too, in view of the reports of the European Parliament, there are strong signs of this. But in reality, there are structural problems in all countries. There is no country that can boast of being the great champion of the independence of the judiciary.

And Portugal, how is it positioned?

Portugal is a good example, and almost an isolated case in Europe, perhaps on a par with Italy, when we talk about the independence of the Public Ministry. Portugal and Italy are among the few countries in the European Union that can say they have a truly independent Public Prosecution Service. In France and Germany, this is not the case. Already in several cases, the Court of Justice of the European Union has considered that the German Public Prosecutor’s Office could not be a body issuing a European arrest warrant because there was the possibility of receiving instructions from the executive power. [The independence of the Public Prosecutor’s Office] is a heritage that Portugal must preserve and which is seen as an example by prosecutors in other European countries.

The Portuguese Union of Public Prosecutors (SMMP) has accused the General Public Prosecutor, Lucília Gago, of compromising the autonomy of magistrates. Is it right in this accusation?

The SMPP is aware that Portugal is one of the few countries which has a truly independent Public Prosecutor’s Office. Therefore, it has to make a very strong defence of this independence, and it is fortunate that it does so. MEDEL has said that the independence of the judiciary in Europe today is much more a matter of defending an independent Public Prosecutor’s Office than of defending independent judges.

Because even those countries that violate the independence of judges, at least in their discourse, assume that judges must be independent. In other words: even if they do the opposite, they all say that there is no independence of the judiciary without independent judges. But there are many countries where the same is not true for prosecutors and where it is said and defended by many people that the Public Prosecution Service should not be independent.

Well, my independence as a judge is of no use to me if I do not have a Public Prosecution Service that brings cases in an independent manner, and a lawyer who freely defends those who are accused. I cannot exercise my independence if I do not have these two things. Much of the future of judicial independence will involve defending an independent Public Prosecutor’s Office.

Is this independence at risk?

No, what I am saying is that the SMMP, rightly so, has intervened when proposals arose to change the composition of the Superior Council of Prosecutors (CSMP) to have a majority of non-prosecutors. I am much more concerned about having a majority of non-prosecutors in the CSMP, which has a hierarchical structure, than in the Superior Council of Judges, where there is no hierarchy. In this case, the SMMP rightly acted very strongly. Marcelo Rebelo de Sousa said that while he is President of Portugal the structure of the Public Ministry will not be altered.

With regard to internal independence, there is the counterpoint to what I said earlier: the more independent a structure is, and rightly so, the more accountable it must be. That is: greater independence has to bring with it greater accountability. The question is how that accountability is done.

In addition to the independence of the Public Prosecution Service, there is the issue of the efficiency of the Public Prosecution Service. Are prosecutorial accusations not confirmed by convictions in the courts a sign of inefficiency on the part of the Public Prosecutor’s Office or of possible mistakes made at the investigation stage?

Obviously, in any institution, there are things that need to be improved. Not only in the Public Ministry, but also in the whole judiciary. One of the former presidents of the SMMP, António Cluny, wrote an article in which he defended that, in certain more complex cases, the Public Prosecution Service should itself create a team and that this team, from outside, before the indictment is issued, should analyse [its support] and say whether there are any risks or weaknesses. This is a question of internal organisation and dynamics that the Public Prosecutor’s Office itself should think about. Now, there is one thing that people must understand: when the Public Prosecutor’s Office accuses there has not yet been an adversarial process. It is necessary to have an independent Public Prosecutor’s Office, but it is also necessary to have a free lawyer.

Portugal is often condemned for violating freedom of expression in Strasbourg. Why is that?

It’s a complex issue because ECtHR jurisprudence is always very restrictive, in the sense that it considers that almost nothing is offensive; or broad, in the sense that everything is covered by freedom of expression. And so, invariably, decisions from our courts which convict for the crimes of insult or defamation come to the ECtHR and they say ‘no, this is not serious enough to be considered’ [insult or defamation] or because there is a public interest in the debate.

Maybe we should think about reviewing our notions of insult and defamation in the Penal Code. There are the two crimes that the judge cannot simply not apply. Certainly, he can say, in view of the ECtHR and the jurisprudence that has been rendered in that court, that he will interpret these crimes in a much broader way.

And your interpretation, would it be the most restrictive or the broadest?

I don’t embark on the interpretation that everything can be said. There has to be a limit. The legal type of crimes is well done. A lot depends on the concrete case. This happens in appeals [in courts] in Portugal. It’s very different when the judge that decides in the first instance hears the people and is faced with a concrete case and, therefore, understands that the limit was exceeded. But in the Court of Appeal, which decides based on recordings of what was said, the perception is different from the judge who saw the people in front of him. In Strasbourg, even more so.

The judges of the European Court – as in any international court – have access to the recordings. But translation can introduce many differences, especially in a crime of insult or defamation, and this is beyond the cultural aspect. If there are differences between the North and South of Portugal between what is and isn’t an insult, imagine from Portugal to Strasbourg, or when the perception is that of a Polish or Hungarian judge.

It does not mean that in Portugal there are more restrictions on freedom of expression than in other countries.

We come from almost 50 years of dictatorship, which does not help either. But I don’t believe there are more obvious restrictions. And the fact that there is a European court of human rights has helped this limit to be broader.

Source: publico.pt by Ana Dias Cordeiro

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