No Expresso do passado sábado, dia 1, encontrei um interessante artigo do Dr. Magalhães e Silva, no qual este "enfatiza que, face à indispensabilidade de uma imprensa livre, o segredo das fontes só deve cair quando estejam em causa os crimes mais graves da nossa ordem jurídica".
A preocupação do Dr. Magalhães e Silva prende-se com as alterações recentemente introduzidas no art.º 135.º do Código de Processo Penal, que permite aos "ministros de religião ou confissão religiosa e os advogados, médicos, jornalistas, membros de instituições de crédito e as demais pessoas a quem a lei permitir ou impuser que guardem segredo (...) escusar-se a depor sobre os factos por ele abrangidos".
Entende o Dr. Magalhães e Silva que "se o legislador, como é agora o caso, dispensa o julgador de ser ele a ponderar os valores em conflito e lhe diz: nos crimes contra as pessoas, contra a segurança do Estado, desde que graves, e nos casos graves de criminalidade organizada, podes, ou mesmo, deves, determinar a quebra de sigilo, então o julgador, não ficando dispensado de aferir da gravidade do crime, deixa, todavia, de ter de se responsabilizar pela ponderação dos valores em presença. A consequência vai ser óbvia: desde que fundamental para a investigação e desde que as informações muito dificilmente possam ser obtidas de qualquer outra forma, os tribunais passarão a autorizar, passe o plebeísmo, de chapa, a quebra de sigilo em todos os casos graves de crimes contra as pessoas, contra a segurança do Estado, e nos casos graves de criminalidade organizada — o que a jurisprudência dos últimos trinta anos mostra que raramente aconteceu. E nesta via se abre caminho para, sob a aparência de um regime mais restritivo, se ter, afinal, a porta aberta para sistemáticas decisões tabelares, vulgo, de chapa".
Eu propenderia a concordar com ele, não fora um pequeníssimo detalhe: o art.º 135.º do Código de Processo Penal de que ele fala não é, seguramente, igual ao "meu", porque eu não encontro na norma qualquer alusão ao tipo de crimes.
Provavelmente, estarei precisada de óculos... :-)
O vazio
"Cristo está no nosso coração, Cristo é o pobre que encontramos, Cristo está no sorriso que damos e no sorriso que recebemos" afirmou a Madre Teresa, em Oslo, quando recebeu o prémio Nobel.
Soube-se agora que cerca de três meses antes dessa data, a Madre enviou uma carta ao seu confessor, na qual afirmava: "Jesus tem um amor muito especial por si (...) quanto a mim, o silêncio e o vazio é tão grande, que olho e não vejo, escuto e não ouço, a língua move-se mas não fala... Peço-lhe que reze por mim - que Lhe dou carta branca".
De acordo com o que li num artigo da TIME , traduzido e republicado pela Visão, há quem veja entre estas duas afirmações uma insanável e perturbadora contradição.
Não vejo porquê. Sempre pensei que a santidade não provém do que somos, mas do que fazemos com isso.
Soube-se agora que cerca de três meses antes dessa data, a Madre enviou uma carta ao seu confessor, na qual afirmava: "Jesus tem um amor muito especial por si (...) quanto a mim, o silêncio e o vazio é tão grande, que olho e não vejo, escuto e não ouço, a língua move-se mas não fala... Peço-lhe que reze por mim - que Lhe dou carta branca".
De acordo com o que li num artigo da TIME , traduzido e republicado pela Visão, há quem veja entre estas duas afirmações uma insanável e perturbadora contradição.
Não vejo porquê. Sempre pensei que a santidade não provém do que somos, mas do que fazemos com isso.
Congresso anual da ABA
O Congresso anual da American Bar Association (ABA) realizou-se no passado mês de Agosto, entre os dias 9 e 14, e contou com a presença do bastonário Rogério Alves, que aí "usou da palavra, para relatar o apoio que a Ordem dos Advogados tem prestado às suas congéneres no quadro da UALP. Salientou, nomeadamente, as acções de formação que têm sido levadas a cabo, nomeadamente em Angola, Moçambique e Cabo Verde, o apoio financeiro à Ordem dos Advogados da Guiné-Bissau, e o acompanhamento da criação de uma Ordem em São Tomé. Recorde-se que no final de Julho o Bastonário recebeu em Lisboa o Ministro da Justiça de São Tomé e Príncipe", conforme noticia o site da OA.
Quem estiver mesmo interessado em saber o que por lá se passou, queira fazer o favor de espreitar o que a este propósito escreve Geoffrey Vos QC, Chairman do Bar Council of England and Wales, aqui.
Segue infra cópia integral do discurso que o bastonário inglês aí proferiu:
American Bar Association Conference in San Francisco
Geoffrey Vos QC: Chairman of the Bar Council of England and Wales
A European perspective on controlling terrorism
Sunday 12th August 2007
Introduction
1. I am delighted and honoured to have been asked to speak at this session. The more so because, however interested I may be in terrorism or human rights issues, I have no credentials as an expert in these subjects.
2. Last year at the ABA conference in Hawaii, I was struck by the absence of non-American voices addressing questions of terrorism and human rights, and equally struck by how different would be the mood music if those voices had been heard. This, I think, reached a pitch at the Rule of Law Lunch addressed last year by Admiral Fallon.
3. My aim here today is not to criticise my hosts – that is something I hope I will never be heard to do – but to seek to put the European perspective.
4. There is, for certain, no country that can claim total adherence to the Rule of Law. And that means that none of us is so sure of our foundation that we are able to criticise others without some introspection.
5. It is this aspect on which I wish to focus, because I believe that the advancement of the Rule of Law (which we all regard as the highest priority) is handicapped by our failure to acknowledge our own deficiencies. In this regard, the US has, since 9/11, taken a different approach from Europe.
6. The problem is how different countries react and respond to international terrorism. The presumption we make is that the Western world led by the US and Europe will respond within the Rule of Law, and provide a good example to other less developed nations. This presumption is, I am afraid, not always accurate. Plainly, there is a balance to be struck between the protection of our societies from attack and violence, and the total adherence to the Rule of Law. Plainly, with the new breed of terrorist prepared to sacrifice their own lives in the pursuit of their ideals, we all face a problem that is unprecedented in scale and character.
7. I believe, however, that, in striking this balance, we need to act with more humility and openness if we are to have a chance of persuading the rest of the world to support the measures we are taking. It is, in part, the uncompromising rhetoric that exacerbates the problem.
8. Let me explain what I mean.
9. The UK has been object of frequent terrorist attacks both before and after 9/11. There is no doubt that the UK stresses the importance of responding to these attacks in a way that acknowledges the crucial importance of the adherence to the Rule of Law. Whether it is successful, is quite a different issue.
10. When Parliament in England debated the possibility of extending detention without trial to 90 days, there was uproar, not because it would not have been beneficial to police activity to have greater powers of detention available, but because the infringement of the Rule of Law created by such a measure was regarded by all commentators and by members of Parliament themselves with extreme circumspection. The UK Government took a different view of where the balance was to be struck.
11. Again, when the UK Government sought to detain foreign terrorists indefinitely without trial in Belmarsh prison under the provisions of the Terrorism Act 2000, the House of Lords (our highest court) declared the statute inconsistent with Article 5 of the European Convention on Human Rights (the right to liberty).
12. The perception in Europe is that the restraining forces at work in the US have been less effective. Assuming for a moment that Guantanamo might have been a justifiable short term reaction to the worst of terrorist attacks, the reactions of the US administration since 9/11 have had a deleterious effect on the reputation of the US as an enlightened nation, leading the world in its adherence to the Rule of Law.
13. No country can expect other nations to respect the principles they espouse if they violate them themselves, or, worst of all, if they are seen as operating one law for themselves and another for those they seek to lead.
14. The fact is that people in glass houses should not throw stones. But more importantly, if they seek to do so, the stones will inevitably miss their target.
The balance to be struck
15. I have already spoken about the balance that Governments need to strike. This was described vividly by Lord Goldsmith QC, the UK’s then Attorney General, in a seminal speech delivered on 22nd September 2006:
“Some of these issues are difficult. The great challenge for free and democratic states is how to balance the need to protect individual rights with the imperative of protecting the lives of the rest of the community. This balance is not easy and it would be foolish to pretend that in all cases everyone agrees with the balance which the Government has struck. Of course there is controversy but it is not through Government failing to consider its legal obligations”.
16. Not everyone would agree with Lord Goldsmith that the UK Government has always properly considered its legal obligations. But that is not the point. Provided a free and democratic state can say that, in dealing with terrorists, it has manifestly attempted to give full weight to their human rights, that state is far more likely to command influence in the world at large.
17. This is not, in my view, an academic question. The influence that the free Western states command in their dealings with culturally different countries is crucial to winning what is, in my view, inappropriately, called the ‘war on terrorism’.
18. The fundamental rights underlying the Rule of Law, like the right to life, the prohibition on torture and slavery are, as Lord Goldsmith described them in his lecture “simply non-negotiable”. And the presumption of innocence, and the right to trial by a fair and impartial tribunal established by law, are the “permanent foundations of a free society”.
19. If, even in extreme situations, we compromise these non-negotiable rights, we cannot expect other nations to respect our principles. It is even less likely that, in this situation, we will be able to persuade the states we are most concerned to convince to adopt our Rule of Law philosophy.
Whom can we influence?
20. Let me take some examples from my own experience, leaving the experiences of Muslim nations to one side for a moment.
21. In the other great countries of the world, one can observe similar trends that direct us towards the point I have been making.
22. Last month, for example, I was invited to speak at a symposium held at the Constitutional Court in Moscow and organised by various professional groups of Moscow advocates and the International Bar Association.
23. My brief was simple. I was told that Moscow lawyers wanted to know why Russia needs the Rule of Law to promote economic development when China does not. This is a very good question to which there is not an easy answer. Eventually, I concluded that there is an irony. In fact, it is not the Rule of Law that is required by businessmen, bankers and investors. It is political stability. China is perceived to have more political stability (if little by way of adherence to the Rule of Law) than Russia, and, therefore, it attracts more investment and the corresponding degree of political influence.
24. In the result, the Russian judges, academics and lawyers listening to me were far less interested in this aspect of what I had to say than they were in the need for an independent judiciary and an independent legal profession. This surprised me at the time, but I suspect it was because they realise how their profession is under attack from the repressive measures being taken by President Putin – he is for example moving the Constitutional Court out of Moscow to St Petersberg, and victimising human rights lawyers who defend individuals against the State, like Karina Moskalenko.
25. But more important even than that, I detected very clearly that the Western speakers were under a microscope. We were being looked at somewhat like an interesting exhibit in a museum. It was far from certain that even lawyers would sign up to what we were saying. They wanted to be sure that what we had to sell by way of the Rule of Law would benefit their country. A sales job was required.
26. One might ask rhetorically how much more of a sales job is required on the Russian Government if that is the attitude of that country’s most enlightened legal community?
27. In March this year, I visited India with a view to improving already good relations between our two legal communities. I took with me a group of human rights experts, and much of our time was spent talking at seminars and symposia on that subject. A seminar in Delhi was attended by many Supreme Court Justices and Bar Council officers from all parts of India. My delegation made an impassioned series of speeches about current issues in Europe’s approach to human rights. Two speeches focussed on the rights of trans-sexuals and their ability to be recognised as such by obtaining a re-issued birth certificate.
28. After these speeches had descended to some detail on this most interesting issue, a distinguished Indian Justice of the Supreme Court rose to address the seminar. After the inevitable Indian formalities, he said simply that “In India, human rights means having enough to eat”.
29. To influence people, you need to lead by example, and to speak relevantly to their situation. In India, they will look first to the more basic rights – the right to life and the right to liberty. In Russia, until it can be seen that there is some benefit for the people there, they will not buy in to the first lessons of the Rule of Law.
30. A final example concerns Kazakhstan, amongst whose lawyers and judges I have found the greatest hunger for the Rule of Law. Why should that be? It is because they believe that they can only achieve economic security by signing up to it and becoming part of the Western world – they are a long way away from it at the moment, but they are very keen to participate.
What hope do we have of influencing Muslim nations?
31. Let us look now to see what we can draw from what I have said about the possibility of influencing Muslim nations.
32. I believe that one has to understand the cultural backdrop to every nation one seeks to persuade of the virtues of the Rule of Law. Only when we know where they are coming from, what they need, and their expectations for the future, can we hope to persuade and influence them. For those of us that practice as professional advocates, it is the same with judges!
33. The road for Muslim nations towards adherence to the Rule of Law is a long and treacherous one. The Executive in any such country finds it very difficult to tread, where the culture neither demands nor is accustomed to it. Much salesmanship is required.
34. It is for this reason that it is simply impossible for the Western countries, who purport to adhere as closely as possible to the Rule of Law, to persuade others to join them if they can be shown in fact only to adhere to their own principles when it suits them.
35. Every time a leading power uses its Executive discretion to find a new balance, a new compromise, a new fudge, between strict adherence to the Rule of Law on the one hand, and the demands of domestic public opinion, the critical press, the overstretched law enforcement agencies, and the tramlines of bureaucratic politics on the other, that is one more missed opportunity for us to lead by example, by doing the right thing. Which example do we want Muslim countries to follow: what we say, or what we do?
Conclusions
36. I am not seeking in any way to depreciate the difficulty of the balancing act about which I have spoken, but Governments must realise in drawing the balance that they will be judged harshly by those outside their society. Economic success buys only so much political influence. In the end, followers need to respect their leaders if they are to follow them. And followers will not respect leaders with double standards, and even less those that simply disregard their own rules when they choose.
37. It is on this principle that I believe rests the influence of the Western world on Muslim states and on Muslim public opinion generally. Contrary to what may be thought by some, I do not believe that there is deep seated hostility in Muslim communities to Western philosophy. But for them, the jury is still out. They remain to be persuaded that adherence to the Rule of Law is to their advantage – much like Russia and China.
38. The US and Europe must be a shining example. To wield the influence we seek, we need to be better than the best. Thus, we need to make sure that our adherence to the Rule of Law is a house built of stone on a firm un-shifting foundation. Only then we will be able to throw stones, and have the prospect of their hitting their target without shattering a glass roof on their trajectory.
Geoffrey Vos QC
Chairman of the Bar Council of England and Wales
12th August 2007
Quem estiver mesmo interessado em saber o que por lá se passou, queira fazer o favor de espreitar o que a este propósito escreve Geoffrey Vos QC, Chairman do Bar Council of England and Wales, aqui.
Segue infra cópia integral do discurso que o bastonário inglês aí proferiu:
American Bar Association Conference in San Francisco
Geoffrey Vos QC: Chairman of the Bar Council of England and Wales
A European perspective on controlling terrorism
Sunday 12th August 2007
Introduction
1. I am delighted and honoured to have been asked to speak at this session. The more so because, however interested I may be in terrorism or human rights issues, I have no credentials as an expert in these subjects.
2. Last year at the ABA conference in Hawaii, I was struck by the absence of non-American voices addressing questions of terrorism and human rights, and equally struck by how different would be the mood music if those voices had been heard. This, I think, reached a pitch at the Rule of Law Lunch addressed last year by Admiral Fallon.
3. My aim here today is not to criticise my hosts – that is something I hope I will never be heard to do – but to seek to put the European perspective.
4. There is, for certain, no country that can claim total adherence to the Rule of Law. And that means that none of us is so sure of our foundation that we are able to criticise others without some introspection.
5. It is this aspect on which I wish to focus, because I believe that the advancement of the Rule of Law (which we all regard as the highest priority) is handicapped by our failure to acknowledge our own deficiencies. In this regard, the US has, since 9/11, taken a different approach from Europe.
6. The problem is how different countries react and respond to international terrorism. The presumption we make is that the Western world led by the US and Europe will respond within the Rule of Law, and provide a good example to other less developed nations. This presumption is, I am afraid, not always accurate. Plainly, there is a balance to be struck between the protection of our societies from attack and violence, and the total adherence to the Rule of Law. Plainly, with the new breed of terrorist prepared to sacrifice their own lives in the pursuit of their ideals, we all face a problem that is unprecedented in scale and character.
7. I believe, however, that, in striking this balance, we need to act with more humility and openness if we are to have a chance of persuading the rest of the world to support the measures we are taking. It is, in part, the uncompromising rhetoric that exacerbates the problem.
8. Let me explain what I mean.
9. The UK has been object of frequent terrorist attacks both before and after 9/11. There is no doubt that the UK stresses the importance of responding to these attacks in a way that acknowledges the crucial importance of the adherence to the Rule of Law. Whether it is successful, is quite a different issue.
10. When Parliament in England debated the possibility of extending detention without trial to 90 days, there was uproar, not because it would not have been beneficial to police activity to have greater powers of detention available, but because the infringement of the Rule of Law created by such a measure was regarded by all commentators and by members of Parliament themselves with extreme circumspection. The UK Government took a different view of where the balance was to be struck.
11. Again, when the UK Government sought to detain foreign terrorists indefinitely without trial in Belmarsh prison under the provisions of the Terrorism Act 2000, the House of Lords (our highest court) declared the statute inconsistent with Article 5 of the European Convention on Human Rights (the right to liberty).
12. The perception in Europe is that the restraining forces at work in the US have been less effective. Assuming for a moment that Guantanamo might have been a justifiable short term reaction to the worst of terrorist attacks, the reactions of the US administration since 9/11 have had a deleterious effect on the reputation of the US as an enlightened nation, leading the world in its adherence to the Rule of Law.
13. No country can expect other nations to respect the principles they espouse if they violate them themselves, or, worst of all, if they are seen as operating one law for themselves and another for those they seek to lead.
14. The fact is that people in glass houses should not throw stones. But more importantly, if they seek to do so, the stones will inevitably miss their target.
The balance to be struck
15. I have already spoken about the balance that Governments need to strike. This was described vividly by Lord Goldsmith QC, the UK’s then Attorney General, in a seminal speech delivered on 22nd September 2006:
“Some of these issues are difficult. The great challenge for free and democratic states is how to balance the need to protect individual rights with the imperative of protecting the lives of the rest of the community. This balance is not easy and it would be foolish to pretend that in all cases everyone agrees with the balance which the Government has struck. Of course there is controversy but it is not through Government failing to consider its legal obligations”.
16. Not everyone would agree with Lord Goldsmith that the UK Government has always properly considered its legal obligations. But that is not the point. Provided a free and democratic state can say that, in dealing with terrorists, it has manifestly attempted to give full weight to their human rights, that state is far more likely to command influence in the world at large.
17. This is not, in my view, an academic question. The influence that the free Western states command in their dealings with culturally different countries is crucial to winning what is, in my view, inappropriately, called the ‘war on terrorism’.
18. The fundamental rights underlying the Rule of Law, like the right to life, the prohibition on torture and slavery are, as Lord Goldsmith described them in his lecture “simply non-negotiable”. And the presumption of innocence, and the right to trial by a fair and impartial tribunal established by law, are the “permanent foundations of a free society”.
19. If, even in extreme situations, we compromise these non-negotiable rights, we cannot expect other nations to respect our principles. It is even less likely that, in this situation, we will be able to persuade the states we are most concerned to convince to adopt our Rule of Law philosophy.
Whom can we influence?
20. Let me take some examples from my own experience, leaving the experiences of Muslim nations to one side for a moment.
21. In the other great countries of the world, one can observe similar trends that direct us towards the point I have been making.
22. Last month, for example, I was invited to speak at a symposium held at the Constitutional Court in Moscow and organised by various professional groups of Moscow advocates and the International Bar Association.
23. My brief was simple. I was told that Moscow lawyers wanted to know why Russia needs the Rule of Law to promote economic development when China does not. This is a very good question to which there is not an easy answer. Eventually, I concluded that there is an irony. In fact, it is not the Rule of Law that is required by businessmen, bankers and investors. It is political stability. China is perceived to have more political stability (if little by way of adherence to the Rule of Law) than Russia, and, therefore, it attracts more investment and the corresponding degree of political influence.
24. In the result, the Russian judges, academics and lawyers listening to me were far less interested in this aspect of what I had to say than they were in the need for an independent judiciary and an independent legal profession. This surprised me at the time, but I suspect it was because they realise how their profession is under attack from the repressive measures being taken by President Putin – he is for example moving the Constitutional Court out of Moscow to St Petersberg, and victimising human rights lawyers who defend individuals against the State, like Karina Moskalenko.
25. But more important even than that, I detected very clearly that the Western speakers were under a microscope. We were being looked at somewhat like an interesting exhibit in a museum. It was far from certain that even lawyers would sign up to what we were saying. They wanted to be sure that what we had to sell by way of the Rule of Law would benefit their country. A sales job was required.
26. One might ask rhetorically how much more of a sales job is required on the Russian Government if that is the attitude of that country’s most enlightened legal community?
27. In March this year, I visited India with a view to improving already good relations between our two legal communities. I took with me a group of human rights experts, and much of our time was spent talking at seminars and symposia on that subject. A seminar in Delhi was attended by many Supreme Court Justices and Bar Council officers from all parts of India. My delegation made an impassioned series of speeches about current issues in Europe’s approach to human rights. Two speeches focussed on the rights of trans-sexuals and their ability to be recognised as such by obtaining a re-issued birth certificate.
28. After these speeches had descended to some detail on this most interesting issue, a distinguished Indian Justice of the Supreme Court rose to address the seminar. After the inevitable Indian formalities, he said simply that “In India, human rights means having enough to eat”.
29. To influence people, you need to lead by example, and to speak relevantly to their situation. In India, they will look first to the more basic rights – the right to life and the right to liberty. In Russia, until it can be seen that there is some benefit for the people there, they will not buy in to the first lessons of the Rule of Law.
30. A final example concerns Kazakhstan, amongst whose lawyers and judges I have found the greatest hunger for the Rule of Law. Why should that be? It is because they believe that they can only achieve economic security by signing up to it and becoming part of the Western world – they are a long way away from it at the moment, but they are very keen to participate.
What hope do we have of influencing Muslim nations?
31. Let us look now to see what we can draw from what I have said about the possibility of influencing Muslim nations.
32. I believe that one has to understand the cultural backdrop to every nation one seeks to persuade of the virtues of the Rule of Law. Only when we know where they are coming from, what they need, and their expectations for the future, can we hope to persuade and influence them. For those of us that practice as professional advocates, it is the same with judges!
33. The road for Muslim nations towards adherence to the Rule of Law is a long and treacherous one. The Executive in any such country finds it very difficult to tread, where the culture neither demands nor is accustomed to it. Much salesmanship is required.
34. It is for this reason that it is simply impossible for the Western countries, who purport to adhere as closely as possible to the Rule of Law, to persuade others to join them if they can be shown in fact only to adhere to their own principles when it suits them.
35. Every time a leading power uses its Executive discretion to find a new balance, a new compromise, a new fudge, between strict adherence to the Rule of Law on the one hand, and the demands of domestic public opinion, the critical press, the overstretched law enforcement agencies, and the tramlines of bureaucratic politics on the other, that is one more missed opportunity for us to lead by example, by doing the right thing. Which example do we want Muslim countries to follow: what we say, or what we do?
Conclusions
36. I am not seeking in any way to depreciate the difficulty of the balancing act about which I have spoken, but Governments must realise in drawing the balance that they will be judged harshly by those outside their society. Economic success buys only so much political influence. In the end, followers need to respect their leaders if they are to follow them. And followers will not respect leaders with double standards, and even less those that simply disregard their own rules when they choose.
37. It is on this principle that I believe rests the influence of the Western world on Muslim states and on Muslim public opinion generally. Contrary to what may be thought by some, I do not believe that there is deep seated hostility in Muslim communities to Western philosophy. But for them, the jury is still out. They remain to be persuaded that adherence to the Rule of Law is to their advantage – much like Russia and China.
38. The US and Europe must be a shining example. To wield the influence we seek, we need to be better than the best. Thus, we need to make sure that our adherence to the Rule of Law is a house built of stone on a firm un-shifting foundation. Only then we will be able to throw stones, and have the prospect of their hitting their target without shattering a glass roof on their trajectory.
Geoffrey Vos QC
Chairman of the Bar Council of England and Wales
12th August 2007
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