Proposed Law no. 54/XVII/1.ª, approved by the Council of Ministers and sent to the Assembly of the Republic, proposes the introduction of a new article 521-A in the Code of Civil Procedurewhich allows the judge to sentence the subject of the case to pay a sum between 2 and 100 UC – that is, between 204 and 10,200 euros -, but which can be increased by 50% (that is, up to 15,300 euros – it is not a mistake), whenever a judge understands that the defense has carried out “manifestly unfounded” acts that aim or have the effect of “studging or delaying the progress of the process”.
Anyone who reads the proposal, without having judicial experience, may be tempted to consider it a good idea, despite, even in this case, finding the values exorbitant.
But a serious legal analysis imposes another conclusion. Let’s start with what the proposal is not. Contrary to what has been stated by its proponents, the new article 521-A does not resemble the bad faith litigation regime provided for in articles 542 et seq. of the CPC.
Litigation in bad faith is based on precise, legally defined requirements and involves verification of intent or serious negligence. The new mechanism, on the contrary, dispenses with any reprehensible intention: it is enough for the act to be considered by the judge in the case to be “manifestly unfounded” and to have the “effect” of delaying the process, which opens the door to unlimited and potentially arbitrary judicial discretion. In fact, the regime is structurally distinct and substantially more dangerous. A lawyer who argues nullity, who requests the production of supervening evidence, who files an appeal against an interlocutory order – all acts that can be classified as “unfounded” by the judge who considers them -, the judge in the case may sanction them with a heavy fine and, in the case of a second conviction, send them to the Order for disciplinary purposes.
The permanent threat of exorbitant financial sanctions and disciplinary sanctions, just because the lawyer exercised the defense of his constituent with maximum zeal – as required, in fact, by his Professional Statute – cannot fail to inhibit the full and courageous exercise of his mandate, transforming the lawyer into a procedural agent tamed by economic prudence, instead of guided by the defense of the rights of his constituent.
Furthermore, as it is a measure within the scope of criminal proceedings, the proposal faces constitutional obstacles that seem insurmountable. Article 32 of the Constitution of the Portuguese Republic establishes, as a fundamental guarantee, that “the criminal process ensures all defense guarantees, including appeals”. Paragraph 3 of the same provision determines that “the accused has the right to choose a defender and be assisted by him in all acts of the process”. These rights do not admit restrictions that reach their essential core, in accordance with article 18, § 3, of the CRP. Rule that sanctions the exercise of acts of defense – even if classified as delaying by the judge – affects precisely this core, discouraging the use of procedural means legally conferred on the accused and his defender.
The Constitutional Court has reaffirmed, in consolidated jurisprudence – notably in Judgments no. 7/87, no. 219/89 and no. 337/2006 – that defense guarantees in criminal proceedings have a minimum intangible content that the ordinary legislator cannot compress. The application of the new rule in criminal proceedings, if it passes in the assembly, thus raises a question of unconstitutionality that the newly elected PR and TC will not be able to ignore.
Add a legislative policy argument that tends to be systematically ignored in the public debate: the fine will mainly inhibit the defense of the poorest and the most well-off. Citizens with sufficient economic resources will pay the fine as the cost of the process and will continue to fully exercise their procedural rights. The defendant without means – who often already depends on a lawyer appointed by the access to law system – will see his defender conditioned by the risk of being personally burdened. Equality of arms, the structuring principle of the fair process enshrined in article 20 of the CRP and article 6 of the European Convention on Human Rights, is seriously injured.
Judicial slowness has known causes and a diagnosis made decades ago: insufficient judges and staff, obsolete IT systems, a judicial organization that has not yet been reformed and recently mega-processes.
Punishing lawyers to solve the system’s problems is, at best, a populist measure that will have no positive effect in the courtroom.
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