The secret of justice in the light of an identity justice

Abstract

The right to information is one of the cornerstones of any modern democracy. Thus not only in the society in general but also in the criminal justice in particular, the confront between publicity and secret should terminate, as a rule, with the victory of the the first one. Only so a less permeable to abuses justice of power and corruption will be reached. Such permeable justice finds in the darkness of secrecy a far more fertile ground. It happens that, for the sake of the effectiveness of criminal justice, it may be necessary to keep the inquiry, where all investigations are being reported, secret. During this phase of inquiry, the prosecutor has the advantage in comparison to the lawyer of the defendant, who unlike the prosecutor, can be prevented of consulting the lawsuit files. In last instance, a defendant can be under preventive prison with no access, not even through his or her lawyer, to the proof that exists against him or her, putting into question the principle of procedural arms and the rule of identity justice. The Portuguese penal procedural system is not a truly “process of parties”, so the legislator has opted to safeguard such equality of arms imposing to the prosecutor a duty of objectivity. The question is whether it will be enough. Keywords: Secret of Justice; Liberty of Information; Equality of Arms; Identity Justice