The repeated violation of judicial secrecy in Portugal can no longer be treated as a marginal deviation of the criminal justice system. It has now become a structural dysfunction with a direct impact on constitutionally protected fundamental rights, in particular the presumption of innocence, the right to a good name and reputation, and the right to a fair trial.
Judicial secrecy constitutes a material guarantee of criminal proceedings. Its function is to prevent suspicion from being converted into an early social sanction and to ensure that the assessment of evidence occurs exclusively within the proper judicial forum, under the rules of adversarial procedure and judicial impartiality. Its systematic violation shifts the center of criminal proceedings to the media sphere and subverts the fundamental logic of the rule of law.
The unlawful disclosure of procedural elements subject to secrecy undermines relevant fundamental rights, even when informally. The targeted citizen comes to be treated as guilty in the court of public opinion, without formal charges, without trial, and without any effective possibility of defense. Conviction takes place in the public square, outside the scope of procedural guarantees.
This practice generates a material inversion of the presumption of innocence. Instead of the burden resting on the State to prove guilt, the burden is transferred to the individual to prove innocence in a non-judicial arena, where adversarial proceedings do not apply and no adequate legal remedies exist. Such inversion is incompatible with the structural principles of modern criminal law.
The frequency and predictability of violations of judicial secrecy rule out any explanation based on occasional negligence. When protected information appears in the media, it is legally evident that a leak has occurred. Public knowledge of the disclosure likewise makes evident the constitutional duty to respond. Subsequent inaction is not neutral. In practice, it constitutes tolerance.
In this context, it is essential to clearly affirm a fundamental legal principle: the violation of judicial secrecy is not limited to the conduct of the individual who provides the information. The legal system establishes liability for all those who knowingly participate in its unlawful disclosure. When journalists receive information covered by judicial secrecy, knowing or having reason to know its nature, the matter ceases to be merely deontological and becomes one of criminal law.
Freedom of the press, though constitutionally protected, is not an absolute right. It does not confer immunity from criminal law, nor does it legitimize the receipt or use of information obtained through unlawful means. The protection of sources cannot serve as a shield for the systematic neutralization of a fundamental guarantee of criminal procedure.
Where the law provides limits, their application cannot be excluded merely because there is no evidence of coercion, direct or indirect, in the disclosure of information subject to judicial secrecy, when the judicial authority from which it was extracted acts negligently. Any remuneration of a media agent or public official in exchange for disclosure merely constitutes a procedural violation, not an autonomous criminal offense requiring effective investigation and punishment.
The Public Prosecutor’s Office cannot ignore these realities. Whenever information covered by judicial secrecy is published, there is an objective indication that a completed crime has occurred. The systematic absence of consequent investigation—whether regarding the source or the dissemination chain—undermines the credibility of criminal enforcement and weakens the authority of the legal system.
Added to this dysfunction is, in certain contexts, informal coordination between criminal investigation and administrative mechanisms controlling the illicit circulation of administrative instruments affecting citizens without defined procedural status, with coercive measures imposed without judicial decision and without guarantees of material legality, particularly when such acts produce restrictive effects on fundamental rights.
The Portuguese legal order enshrines the principle of administrative legality and the reservation of law for any relevant limitation of rights, freedoms, and guarantees. Outside this framework, any action producing effects equivalent to a sanction lacks express legal basis and effective judicial oversight.
The most serious element remains the absence of sanctioning response. Without effective investigation of leaks, without rigorous determination of responsibility, and without the application of proportionate sanctions, judicial secrecy becomes a normative fiction. A State that does not enforce its own laws loses legitimacy to demand respect from its citizens.
In a coherent legal system, no one may be considered guilty without formal charges, without trial, and without a final and binding judgment. Public condemnation without the right to defense is not a tolerable side effect. It is a serious violation of fundamental guarantees.
Portugal does not need more media-driven justice, but constitutional justice. It needs disciplined justice, legally rigorous and faithful to the law. The effective enforcement of rules governing judicial secrecy—including against those who disseminate and those who publish unlawful information—is not an attack on democracy. It is a condition of its survival.
César DePaço
Entrepreneur and philanthropist
Honorary Consul of Portugal (2014–2020)
Founder and CEO of Summit Nutritionals International Inc.
Founder and Chairman of the Board of the DePaço Foundation
Unwavering defender of law enforcement and conservative principles