Operation Influential Person: Prosecutor claims that the right to criticize takes precedence over parliamentary discipline

This Friday, Deputy Attorney General María José Fernández welcomed the archiving of the disciplinary process initiated against her for criticizing the prosecutor’s office regarding the process of Operation Influencer, given that the right to criticize intersects with disciplinary powers.

In a response sent to Lusa after the case was dropped by the disciplinary department of the High Council of the Prosecutor’s Office (HCPP), the judge recalled that the decision “respects the fundamental right of every citizen, including judges, to freedom of expression.”

“It could not be otherwise in an institution whose main task is to protect the rule of law in general and the Constitution in particular,” he said, not forgetting to emphasize that in this process “the European Convention on Human Rights and the Constitution of the Portuguese Republic.”

The decision of the CSMP Disciplinary Section understood that in relation to the duties of correction and loyalty of judges who are members of parliament, “an interpretation so strict as to exclude the possibility of criticism of the institution” could not be made.

Despite the reference to “censorship (…) of the conduct” of the Deputy Attorney General, the CSMP stated that it was “incompatible with freedom of expression” to impose sanctions in light of a stricter interpretation of the duties of correction and loyalty, which were allegedly violated by María José Fernández with the criticism expressed in an opinion piece in the newspaper Público.

“The ruling did not fail to criticize the content of my text, but it ultimately concluded that the right to criticize, which I myself exercised, in a context that is already known to everyone, is legitimate and protected by freedom of expression, which must prevail over disciplinary sanctions,” reiterated María José Fernández.

The decision on the disciplinary process against Maria José Fernández, which began on January 10 and involves possible violations of the duties of preservation, loyalty and correction, was made at a meeting of the CSMP disciplinary section on Wednesday.

In an opinion piece in the newspaper Público published on November 20, 2023, the Deputy Attorney General, although without referring to Operation Influencer, wondered how it was possible to go so far, that is, until “decisions were made that would provoke a monumental political crisis, the consequences of which are still visible”, questioning the work of the deputy and the methods of investigation, namely the Central Directorate of Investigations and Criminal Cases.

In the article, the deputy-magistrate, among other things, states that “the results of several cases already examined allow us to conclude that there are aspects of the work of investigative prosecutors that require review and improvement through self-criticism.”

On 7 November 2023, Operation Influential Person resulted in the arrest of António Costa’s Chief of Staff, Vitor Escaria, lawyer and consultant Diogo Lacerda Machado, Start Campus administrators Afonso Salema and Rui Oliveira Neves, and the President of the Chamber of Commerce de Sines, Nuno Mascarenhas. Also charged are former Infrastructure Minister João Galamba, former President of the Portuguese Environment Agency Nuno Lacasta, lawyer João Tiago Silveira and Start Campus.

However, the process was divided into three investigations related to the construction of a data centre in the industrial and logistics zone of Sines by Start Campus, lithium exploration in Montalegre and Boticas (both areas of Vila Real) and the production of lithium energy from hydrogen in Sainz.

Former Prime Minister António Costa, who was apparently linked to the case, became the subject of an investigation launched by a Supreme Court deputy, a situation that forced him to resign from his post.