“Operation Lex” represents a unique case in Portuguese judicial practice as its trial in the first instance took place at the Supreme Court of Justice (STJ), the highest body in the hierarchy of judicial courts. In fact, the Portuguese judicial system is organized according to a tripartite hierarchical structure, made up of the Courts of first instance, where cases are, as a rule, initiated and judged; the Courts of Appeal, which function as the second instance of appeal; and, at the top, the Supreme Court of Justice.
The Constitution of the Portuguese Republic, in its article 210, and the Law on the Organization of the Judiciary System (LOSJ) define the STJ as the “highest body in the hierarchy of judicial courts”. Its primary function is to assess appeals, acting as a “review” court. This means that its intervention is limited, as a rule, to the assessment of questions of law, aiming to ensure the correct interpretation and uniform application of legislation throughout the national territory. A direct consequence of this nature is that the STJ is, as a rule, prohibited from re-examining the matter of fact that was established and proven by the lower courts. The justification for this first instance judgment is based on the exceptional combination of simultaneous application of two institutes of criminal procedural law.
The first is the special forum by function prerogative. This mechanism, designed as a functional guarantee to safeguard the independence of certain public positions, establishes that those holding certain functions are judged by a hierarchically superior court. In this specific case, the presence of defendants who, at the material time, held the status of Judges at the Lisbon Court of Appeal, activates the specific competence of the STJ, as provided for in article 12, no. 4, paragraph a), of the Code of Criminal Procedure. This rule determines that it is up to the criminal sections of the STJ to judge cases involving alleged crimes committed by judges of the Courts of Appeal. The second institute is that of procedural connection. This principle aims to guarantee the unity and coherence of the judgment, avoiding the risk of contradictory decisions that could emerge from separate processes analyzing the same facts.
When there is a relevant connection between several crimes or defendants, the law determines that the jurisdiction to judge the entire case lies with the court with the highest hierarchical rank. In the “Operação Lex” case, the STJ, after an appeal from the Public Prosecutor’s Office and several defendants, reversed an initial separation decision and recalled the entire case, determining that all defendants and related crimes be tried together in this higher court, with a view to ensuring a global and coherent assessment of the evidence. This procedural configuration, although legally founded, may have the consequence of possibly limiting the right to appeal on the matter of fact. Additionally, procedural experience (so to speak) can be seen positively for the judicial system. When called to judge in the first instance, the Judges Counselors of the STJ, these Magistrates of the highest caliber and experience resume direct contact with the challenges inherent in the production and evaluation of evidence, a procedural reality far from their current function of re-examining questions of law. This foray into the difficulties of factual judgment, similar to the experience at the beginning of their careers, could enrich their perspective as appeal judges, promoting greater sensitivity towards the work carried out in lower courts.
In short, the trial of “Operation Lex” in the STJ, being an exception, is the result of the rigorous application of procedural rules that, due to the combination of the special forum applicable to Magistrates and the unifying force of the connection, shifted the jurisdiction to the highest judicial instance in the country.
Lawyer and founding partner of ATMJ – Sociedade de Advogados