Marcelo should be investigated, in opinion of investigating judge Gabriela Assunção

Criminal investigating judge Gabriela Assunção believes that the facts uncovered in the ‘Brazilian twins controversy’ by the Public Prosecutor’s Office should have led to an investigation into the President of the Republic for co-authoring the crime of malfeasance.

In the order she sent to the Supreme Court of Justice, to which Expresso has had access, the judge considers that the President of the Republic did not behave “neutrally” and that he should be investigated in the case of Brazilian twin babies who were treated at Santa Maria Hospital in Lisbon with drugs that cost the State €4 million.

In the court document, judge Assunção states that “the Public Prosecutor’s Office (MP) describes the practice of acts attributable to His Excellency, the President of the Republic, which are not neutral in relation to the acts attributed to the suspects”. It is therefore understood that the judge believes that the President of the Republic could be investigated for co-authorship in the crime of malfeasance, explains Expresso/ SIC Notícias.

This offence is currently attributed by public prosecutor’s to the president’s son – in Marcelo’s own words, “an ordinary citizen” – “who does not hold political office and could never intervene in the exercise of the president’s functions”.

What this all means is that seven months since the story was broken, a judge has indicated that the original contention (that President Marcelo pulled strings) does appear to hold water – no matter how much Portugal’s Head of State argues that he had nothing to do with any of it.

Today, as this latest curved ball swings into the proceedings, the twins’ mother is expected to answer questions put to her by the parliamentary commission of inquiry.

Nuno Rebelo de Sousa’s explanations

Back to the points made by judge Assunção: according to Expresso she criticises the Public Prosecutor’s Office for not having “carried out (…) any legal framework regarding the actions of (…) Marcelo Rebelo de Sousa”, arguing that although Marcelo “doesn’t have the same competence and scope of action (…) that the suspect António Lacerda Sales would have (. …), it is hard to see how article 28 of the Penal Code could not also be considered, even abstractly, for the actions that the Public Prosecutor’s Office describes and imputes to the President of the Republic, as it did with suspect Nuno Rebelo de Sousa.” 

The judge’s position, which was later sent to the Supreme Court of Justice (STJ), was not supported by Counsellor Celso Manata, who rejected her request, arguing that the Public Prosecutor’s Office “is the holder of the criminal action, and it is up to it to initiate criminal proceedings and promote the relevant steps”.

Also in a reply sent to the STJ, the Public Prosecutor’s Office emphasised that the President of the Republic is not suspected of having committed any crime and that only they themselves should decide whether or not he should be investigated.

The son of President Marcelo is accused of prevarication, as is Lacerda Sales, the former Secretary of State for Health, and Luís Pinheiro, the former clinical director of Santa Maria Hospital. This in itself is odd. According to State Gazette Diário da República, the crime of prevarication refers to: “when a political office-holder, against the law, conducts or decides a case in which he or she intervenes, within the scope of his or her duties, with the aim of thereby harming or benefiting someone. The penalty is imprisonment for two to eight years, and this crime is defined in Article 11 of Law 34/87 of 16 July (regulating the crimes of responsibility of political office holders).”

Nuno Rebelo de Sousa is not a political office holder,  thus it seems difficult to imagine how the crime of prevarication applies.

Equally in this long-drawn out case which has seen former assistant secretary of State for Health Lacerda Sales say he has no interest in being used as a scapegoat, the parents of the twins are suspected of fraud, because their daughters were granted Portuguese nationality in order to receive treatment for spinal muscular atrophy on the back of the Portuguese State. ND

Sources: Expresso/ SIC Notícias