THE EVERLASTING TRIAL OF A NATIONAL HERO
On April 25, 1974, Western Europe's most longlasting dictatorship, the fascist regime of Salazar and Gaetano in Portugal, was overthrown in an unbloody coup staged by a group of democratic officers and soldiers organized in the 'Movimiento dos Fuerças Armadas' (MFA, Movement of the Armed Forces). No blood was spilled in the the anti-fascist coup d'état hailed throughout the world as the "Carnation Revolution". The strategical mastermind behind the coup was a young and unknown army officer from the African colonies: Major Otelo Saraiva de Carvalho.
Ten years later, in June 1984, Otelo, the hero of Portugal's liberation was arrested and accused of being the founder and leader of a "terrorist organization". In a longlasting trial, blurred by kafkaesque procedural irregularities, Otelo was finally sentenced to a 17 years prison term by the Portuguese Supreme Court. But in the wake of an international campaign of jurists organized by the European Committee for the Defence of Refugees and Immigrants, CEDRI, the Constitutional Court quashed the sentence on the grounds of grave procedural irregularities and ordered a re-trial. In May 1989, Otelo was freed, pending a new judgement, after almost five years of detention on remand. But his trial has continued ever since in a grotesque show-piece of juridico-political byzantinism. The, for the time being, last stage in this political trial unique in Western Europe was reached in May with the decision of the European Commission of Human Rights to admit a complaint filed by Otelo. The story of Otelo's trial is the story of how "anti-terrorist" legislation can be abused for the intimidation and criminalization of legitimous democratic oppostion.
From the very beginning, the accusation against Otelo was based on a deliberately maintained confusion between two organisations: One of them was known as the 'FP-25' (Fuerças Populares do 25 Abril). This clandestine group used an aggressive radical leftist vocabulary, but its true origins remain highly obscure. Since 1980, the FP-25 carried out a series of violent attacks ranging from robbery to murder. The appearance of the FP-25 coincided with a period of economic and social instability in Portugal, when harsh austerity measures imposed by the IMF gave rise to wide-spread popular discontent.
The second, called the 'Global Project' (GP), could more accurately be described as a draft concept for a political strategy than as a structured, existing organization. The origins of the GP go back to 1977. At that time the young Portuguese democracy had already survived two coup attempts by the far right which had failed only thanks to the vigilance of the MFA and its strong popular support. But by 1977, extreme right wing circles including Salazarist landlords and businessmen who had fled the country in 1974 and whose land and factories had been taken over by worker and peasant cooperatives under the protection of the MFA, regained much of their influence without having to resort to a coup, thanks to far-reaching economic and political assistance from various Western governments and international business interests.
The workers unions faced with the abolition of the achievements brought about by the Carnation Revolution, responded with mass strikes.
At the peak of political and social tension, a group of right-wing army officers met the then President Ramalho Eanes offering him their "services" with a view to restoring a "strong-handed" regime to power.
Mario Soares, at that time head of the Portuguese Socialist Party, delivered an alarming speach to parliament warning of a possible fascist coup and stating that all conditions for such a coup were now present.
In this situation, Otelo de Carvalho, who had been stripped of all positions of influence in the army but who remained a highly popular figure as the "father of Portuguese democracy", developed the idea of the 'Global Project' aimed at organizing a broadly based popular resistance movement capable of countering by all possible means, including armed struggle, in the event of a fascist coup.
Otelo's plan envisaged the setting up of two elements within the GP:
- An overt political anti-fascist mass-organization
- A covert organization prepared for armed resistance in the event of a fascist coup.
In fact, the GP was only put into practice in a very restricted form: Otelo's efforts to create a mass-organization of popular unity led only to the constitution of the FUP, a small leftist party which never gained any electoral importance.
As for the "covert wing" of the GP, it never got beyond an embryonic stage. At the end of the 70's, the threat of a fascist coup had vanished and with it the only condition which, in Otelo's view would have justified recourse to violent action.
Nonetheless the judgements against Otelo and other members of his party, the FUP, are all based on the assertion that the 'FP-25' were no less than the covert, armed wing of the GP.
Internal security legislation provides the instrument for Otelo's trial
The trial of Otelo and his co-defendants would not have been possible without the previous introduction of an impressive arsenal of "internal security" legislation.
In 1982 the government used the pretext of a number of violent attacks attributed to extreme left-wing groups to create the DCCB, an anti-terrorist unit within the criminal investigation police. It also introduced two new articles into the penal code: Article 288 on "terrorist organizations" which allows for the punishment of a "member of a terrorist association" with up to 20 years imprisonment, and Article 287/4 providing for the use of "repenters" as witnesses. Based on this provision, offenders who are ready to cooperate with the judicial authorities can give testimony against their co-defendants and thereby receive reductions of their sentences or even acquittal.
In 1984 the "Internal Security Law" was approved by parliament. The law included provisions allowing for:(
- the creation of a secret intelligence service to replace Salazar's ill-famed PIDE, dissolved after the "Carnation Revolution";
- restrictions to the freedom of movement, residence and assembly;
- telephone tapping, surveillance of mail and house searches without a judge's warrant;
- preventive detention of persons suspected of preparing a crime;
- the obligation for all officials and employees in the public sector and state-owned enterprises to collaborate with the security forces;
- the establishment of a central computerized data bank, accessible to all security forces;
- the use of the army and police to maintain "normal services" in the event of strikes;
- the creation of a permanent crisis staff made up of representatives of the government, the judiciary, the army and police as well as of the security services;
- collaboration with international bodies (such as NATO) and the secret services of foreign countries with the aim of maintaining "internal security".
Many of these innovations introduced in the name of "internal security" were used for the first time in the Otelo case.
What is a "terrorist association"?
The arbitrary interpretation of the "elastic" article 288 on terrorist organizations however provided the main premise for the trial. Indeed, according to the provision, a conviction does not require any evidence of involvment of the person concerned in a materialized particular crime. Moreover, in their motivation of the verdicts, none of the courts ever answered the question, albeit a vital one in the establishment of the facts: When was the terrorist organization founded and from which moment on (by which concrete behaviour) is one considered to be a member and when does one cease to be considered as such? Nowhere is the extent of the alleged terrorist association defined. No indication is given on what deeds or activities the defendants are supposed to have carried out to be considered as members of the organization. By avoiding a clear definition of the extent of the alleged terrorist organization and by using a concept of "guilt by contact" the courts succeeded in blurring the lines between very different groups and organizations by presenting them as being part of one and the same "plot", the "Global Project". By engaging in such acrobatics the judges of the first ruling court managed to declare: "It must be made clear that in the [covert armed wing of the GP] there were two factions, one radical, the other moderate, also known as the 'Otelo wing' and opposed to violent crimes against people because they were contrary to the spirit of the Global Project."
While the indictment charges the defendants collectively with specific violent crimes attributed to the 'FP-25', the judgements do not maintain this view. Thus the court of first instance only mentions "some defendants" who carried out violent acts "from time to time" and "in the orbit" of the Global Project. Neither Otelo, nor one single of his party friends were among them.
Procedural flaws
The whole trial was furthermore marked by a number of procedural flaws: The Portuguese Penal Procedure Code lacks any obligation for the courts to motivate convictions. In other words, no detailed assessment of the evidence on which the courts findings are based is made in the judgement. This makes the material examination of the facts which have motivated a condemnation impossible. Thus, in later appeals a verdict can only be examined in the terms of the correct application of law.
This legal defect of the Portuguese penal procedure later motivated the Constitutional Court's decision to quash the judgements on the grounds of a breach against the principle of a "double degree of jurisdiction" guaranteed by the Constitution.
But another defect of the Portuguese penal procedure might prove to have even more decisive effects on the final outcome of the Otelo case.
It is the quite unique institution of the "pronuncia". According to the Portuguese penal procedure, a contradictory investigation is first led by an investigating judge. Based on its findings the prosecution produces the bill of indictment which is then presented to a member of the ruling court (in the case of Otelo to the president of the court) who issues the "despacho da pronuncia" which contains the decision on whether to institute a trial or not. By taking this decision on the probability of guilt of the defendant(s) the judge of the pronuncia forms his first own opinion on the probable outcome of the procedure, and this exclusively on the base of the accusation.
From the beginning of the procedure, the defence attorneys of Otelo claimed that the institution of the "pronuncia" as such breached against the guarantee of an "impartial tribunal" as stipulated in article 6.1 of the European Convention on Human Rights. Indeed, the strict separation of the roles of the accusation and the ruling judge thus risks to be blurred. Before the opening of the trial, a judge member of the ruling court is likely to gain an "intimate personal conviction" which he will be tempted to prove by all means. Incidentally, in the new Penal Procedure Code which came into affect after the Otelo case, the pronuncia as a strange mixture between indictment and "pre-verdict" has been abolished.
The decision by the European Commission of Human Rights to admit the complaint filed by Otelo's lawyers Romeu Frances (Lisbon) and Me Henri Leclerc, vice-president of the French League of Human Rights (Paris), is based on the Commissions doubt whether the judge in charge of instituting the main procedure can at the same time be part of the ruling court.
The Commission names the fact that the European Court of Human Rights has repeatedly stated that the impartiality of a judge must be assessed not only on the basis of an "objective approach" aiming at finding out whether the magistrate concerned offered sufficiant guarantees excluding any legitimous doubt regarding his impartiality, but also on the basis of a "subjective approach" trying to determine what intimate conviction a particular judge concerned had gained.
As a result, the European Court will now have to pronounce itselves on the question whether the judge who presided the ruling court in Otelo's case offered sufficiant guarantees excluding "legitimous doubts with regard to his impartiality".
In the mean time the judicial tragicomedy is going on in Portugal as if nothing had happened. In what must be seen as an extraordinary affront against the Constitutional Court, the Portuguese judiciary did, it is true, comply with the court's order to open a new procedure, but ostensibly ignored all its requirements regarding the elimination of the procedural defects which had lead to the annullation of the first procedure. Thus, in the second round, Otelo was once again sentenced, first, by a criminal court of Lisbon, then by the court of appeal and finally by the Supreme Court to about the same term of imprisonment as in the first round. Considering this vicious circle created by a judicial system running amuck the only hope for an end to the Otelo case lies with an early ruling of the European Court. Sole consolation for the victims: Despite the confirmation of the sentences Otelo and his co-defendants are all free...
Nicholas Busch
Sources: C.E.D.R.I., The trial against Otelo Saraiva de Carvalho - a synopsis of the case, July 1987 and up-dates November 1988, February 1989, April 1989; European Commission of Human Rights, Décision finale sur la recevabilité de la requête No 15651/89, 19.5.92. For further information contact: Me Henri Leclerc, 52, Bd. d'Ornano, F-75018 Paris