A Lisbon Court Refuses to Remove the Lawyer Socrates Never Chose, and the Marques Trial Keeps Its Court-Appointed Defender
Judge Fernanda Carqueijo found the appointment of Luis Carlos Esteves neither personal nor arbitrary, given the run of lawyers who had resigned or asked to be excused. She also upheld the Bar's power to make the appointment centrally in cases of special complexity.
The Tribunal Administrativo do Círculo de Lisboa has refused José Sócrates's attempt to have his court-appointed defence lawyer removed from the Operação Marquês trial. In a ruling seen by Observador on Thursday, judge Fernanda Carqueijó dismissed the former prime minister's injunction against both the Bar Association's decision to take the appointment on itself and the naming of Luís Carlos Esteves as his defender.
"I find the requested suspension of effect unfounded," the ruling states, covering both the Conselho Geral da Ordem dos Advogados deliberation of 9 March and the appointment that followed from it.
Three tests, and one is enough
A providência cautelar in the administrative courts has to clear three hurdles: that a right would go unrepaired if the court took its time, that there are strong indications the claim is sound before any full examination, and that the balance of interests favours the applicant. Failing any one of them ends the application, and that is what the Lisbon court found.
Sócrates had argued that the choice of Esteves was arbitrary, personal and specific, and therefore at odds with the random or sequential appointment the Bar's own regulations envisage. The judge did not accept it. "Given the successive renunciations of mandate and requests to be excused presented by the defenders appointed to the accused, it is not apparent that the appointment of the interested party was contrary to law, personal or arbitrary," she wrote.
The court also refused the suggestion that either the Bar or Esteves had an interest in harming Sócrates, noting that the former prime minister "does not allege, concretely, any facts" that would support it.
Who gets to appoint a defender
The second limb of the case was institutional. Appointing a court-appointed defender normally sits with the relevant Regional Council of the Bar, in this instance Lisbon. Sócrates argued the Conselho Geral had no power to take that competence for itself. The judge held that the March deliberation was neither arbitrary nor aimed at this case: it applies to every process declared to be of "special complexity", and the same direct appointment could follow for any other defendant left without counsel.
She also drew the boundary of the appointment itself. Esteves's functions cease the moment Sócrates appoints a lawyer of his own, even though the court-appointed defender continues to attend the sessions in the meantime. On that basis, the judge concluded, nothing about the arrangement restricts the accused's freedom to choose his own defence.
The Bar had defended the appointment by invoking a public interest in the trial proceeding. In August, Sócrates filed a submission in the criminal case denouncing what he called an "escalation of abuses" in his defence.
What this means for expats
- The trial keeps moving: the ruling removes the procedural obstacle to Esteves sitting in the Marquês hearings, and the appointment ends the moment Sócrates instructs a lawyer of his own.
- It follows a run of filings: in August, Sócrates sought to nullify every act carried out by that lawyer.
- Strasbourg has heard the same argument: Portugal has rejected his claim to the European Court of Human Rights that the prosecution was unfair.
- He has won once: a Lisbon court ordered the state to pay him 15,000 euros for leaking his case, a decision prosecutors are appealing.
- The wider case continues: a former Espírito Santo director told the same trial that Ricardo Salgado decided everything.
