It is the purpose of this paper to present, in general terms, the Portuguese judicial network or, in other words, the existing jurisdictions, the national courts’ network and their geographical distribution.
Bearing in mind the international context within the European Union’s scope, we also purport, whenever possible, to identify similar elements in another three countries of Southern Europe – Spain, France and Italy.
The information regarding the Portuguese judicial network comes from two types of sources. On one hand the legal texts, such as the Constitution of the Portuguese Republic or the Law on the Organization and Functioning of the Judicial Courts (Law 3/99, of 13 January). On the other hand, the statistical data of the Legal Policy and Planning Office of the Ministry of Justice[1] (www.dgpj.mj.pt).
As regards the statistical data relating to the Portuguese judicial system, it should be referred that, even though there is information concerning the year 2002, the reference date will be the year 2000, in order to allow a comparative analysis on the selected countries.
The choice of Spain, France and Italy, in this study, had as basis, among other criteria, the proximity of their judicial systems (civil law system in opposition to the common law system existing in Great-Britain), the geographical location within the European Union’s scope, the cultural and linguistic affinities and the never neglectful restrictions related to information and statistical data on other European systems.
The information concerning these countries derived from three different sources: the report on the European data base on judicial systems of the Instituto di Ricerca sui Sistemi Giudiziari (2000) an Italian central body of the European Research Network on Judicial Systems; the information, both statistical and descriptive, on the several judicial networks, at the internet site of the World Bank (http://www4.worldbank.org/legal/database/justice/) and, lastly, the internet site (http://www.simons-law.com) as referred to in the links of the Open Society Institute in liaison with the EU Accession Monitoring Program (http://www.eumap.org7reports) containing reports on the European judicial systems.
There has been some setbacks in the collecting of information either of a qualitative or quantitative nature on the Spanish, French and Italian judicial systems. Owing to the lack of feasible sources, the information compiled reveals some weak points, such as for instance, the too brief descriptions, perhaps incomplete, of the respective judicial systems; the absence of up-to-date statistical data; not uniform data collecting; etc.
Bearing in mind these limitations, we shall describe the Portuguese judicial network and, whenever possible, the comparative references of the countries aforementioned.
The Portuguese legal system
As concerns the Portuguese courts network, the Constitution of the Portuguese Republic established a fundamental distinction between civil jurisdiction and administrative jurisdiction, without prejudice to the Constitutional Court own jurisdiction. In Spain there is only a common jurisdiction, specialized as follows: the civil jurisdiction (responsible for the civil, commercial, family and social security areas), the criminal jurisdiction (criminal and juvenile) and the administrative jurisdiction (public law). In Italy there are three jurisdictions: judicial or ordinary courts (civil, criminal, labour and agriculture), administrative courts and also audit courts. France has just two jurisdictions: on one hand, the ordinary courts (responsible for civil, criminal, commercial, labour, agriculture and social security matters) and, on the other hand, the administrative courts.
As regards the national judicial system and bearing in mind the Administrative Justice Reform, foreseen for the year 2004, the administrative jurisdiction shall not be here analysed.
In the civil jurisdiction, the judicial courts are organized into three degrees or instances, to which it corresponds a specific jurisdiction area. From a more broaden to a more restricted view, we have first of all the Supreme Court of Justice with a national jurisdiction level; then the Courts of Appeal with district jurisdiction and in the end, the first instance courts, usually referred to as county courts.
Both in Spain and in Italy there are equally three judicial levels, hierarchically defined. In Spain: the Supreme Court; the second instance high courts and last of all the county supreme courts and the first instance courts. In Italy: the Corte de Cassazione; the appeal courts and, with a more restricted jurisdiction, the Tribunali (of general jurisdiction) and the peace courts (Guici di Pace). Laying aside the courts of unique jurisdiction (labour, juvenile, social security and commerce), in France there are, in a descending hierarchical order, La Cour de Cassation; the high courts of appeal; the courts of appeal; the district courts; the instance courts and the judges’ courts.
In Portugal, there are four internal jurisdiction criteria which define which court is competent to judge a certain action:
i) Matter – the several proceedings are divided among the courts in accordance with the matter they deal with;
ii) Hierarchy – in terms of appeals, the courts follow a certain jurisdictional hierarchy;
iii) Value – the value of the cause determines those first instance courts which are competent to judge the action. It is also defined ceilings on the basis of the value of the action in order to allow the right of appeal;
iv) Territory – each court has a certain territorial jurisdiction. The choice of the court to judge certain kinds of actions may be conditioned to the place where the fact actually occurred.
We shall now proceed to analyse, in more detail, the structure of the previously mentioned instances, starting by the first instance courts[2].
The courts of first instance may be divided into three categories.
- The specialized jurisdiction courts hear specific matters irrespective of the form of procedure (criminal instruction, family and juvenile, labour, commerce, maritime and enforcement of sanctions). The criminal instruction courts deal with the criminal instruction, deciding on the indictment and on all judicial acts of the inquiry. The family courts deal with actions related to the spouses, (such as divorce proceedings and separation of spouses and property.) They are also competent to decide on matters related to minors and children of age.
- The juvenile courts are competent to decide on measures to be applied to minors between 12 and 16 years of age who are, in general, in a risking situation, either in view of mistreatment or abandonment or by having committed a criminal infraction qualified as such by criminal law. The labour courts decide on disputes deriving from labour relations. The commerce courts decide on actions which, in general, involve traders. The maritime court is competent to decide on maritime commercial law matters. And lastly, the enforcement of sanctions courts are competent to enforce the prison sentence and the safety measures towards non-imputable inmates.
- The specific jurisdiction courts hear certain matters in view of the applicable form of procedure (they are organized into civil divisions, criminal divisions, civil benches, criminal benches, civil small claims courts, criminal small claims courts and civil enforcement courts[3]). Finally, the general jurisdiction courts decide and organize all the cases other than those allocated to any of the two aforementioned courts. Although rare, there may be courts, like the county court of Velas (Azores) that organizes and decides on all kinds of procedures irrespective of their matter, in view of the fact that there is not a specialized court within their area of jurisdiction.
The courts of general, specialized or specific jurisdiction may divide themselves into benches. In the county courts[4] the benches may be of general, specialized or specific jurisdiction. That is, the courts of specialized and specific jurisdiction may divide themselves into different benches but with the same jurisdiction; on its part, the general jurisdiction courts may divide themselves into benches with different jurisdiction, in accordance with the matter and the form of procedure.
The courts of Appeal are, as a rule, courts of second instance. They are also divided into sections of a civil, criminal and social nature (this latter decides, in general, on labour matters). Only the Oporto judicial district encompasses two courts of Appeal (Oporto and Guimarães); the remaining national judicial districts (Coimbra, Lisbon and Évora) have only one court with territorial jurisdiction over all the judicial circuits of their respective districts.
The Supreme Court of Justice which seats in Lisbon and has jurisdiction over all the national territory is equally organized into three kinds of sessions: civil matter, criminal matter and social matter.
Out of the aforementioned scheme are the Peace Courts, reinstalled in the Portuguese legal order in 2001. As they are more concerned with dispute resolution and social peace than with the strict application of the law, they are characterized by a different logic than the one presiding over the traditional courts, being compulsory at the outset a mediation phase. Also, as the value of the cause cannot exceed the ceiling set for the courts of first instance, their competence extends, especially, to the civil patrimonial issues – real and obligations. The peace courts are also competent to hear civil indemnity requests arising from some types of crime (for instance, bodily harm, libel, slander, theft, etc). They have just declarative competence and their decisions are enforced by the first instance courts.
There are also Peace Courts in Italy (a total of 848) and in Spain, being worth mention that, in Italy, they deal mainly with dispute resolutions at a local level.
Last but not least, there is also in Portugal:
o The Constitutional Court – entrusted specifically with the administration of justice in matters of a legal-constitutional nature;
o The Audit Court - the body with authority to scrutinise the legality of public expenditure;
o The Conflict Court – which decides on jurisdictional conflicts;
o The arbitration tribunals – which mainly hold a private nature.
In Portugal, civil disputes are addressed in first instance at the district courts. These courts are organised in chambers and some of them include specialised chambers for commercial and civil matters. The judgments of the district courts may be appealed to the Courts of Appeal, whose area of competence is defined by reference to the district courts. Finally, the Supreme Court of Justice, a state court, may review the decisions of the Courts of Appeal in matters of law.
Further to the constitutional doctrine of the separation of powers, Portuguese courts are completely independent from the other branches of power (ie, the political, executive and the legislative powers). In Portugal, the Superior Council of Magistrates, as the senior body of the structure and discipline of the Portuguese judges, appoints the judges and assigns them to their respective courts.
Moreover, judges are not only independent before the remaining sovereign powers but also between themselves (ie, a court is not bound by its own decisions or by decisions of other courts). Nonetheless, on practical terms, the lower judges tend to follow the reasoning and decisions adopted by the higher courts and are often influenced by prior established jurisprudence on a particular matter of law.
With the exception of some criminal matters, juries are not allowed. Therefore, on civil and commercial matters cases are always judged by professional judges.
Bearing in mind the international context within the European Union’s scope, we also purport, whenever possible, to identify similar elements in another three countries of Southern Europe – Spain, France and Italy.
The information regarding the Portuguese judicial network comes from two types of sources. On one hand the legal texts, such as the Constitution of the Portuguese Republic or the Law on the Organization and Functioning of the Judicial Courts (Law 3/99, of 13 January). On the other hand, the statistical data of the Legal Policy and Planning Office of the Ministry of Justice[1] (www.dgpj.mj.pt).
As regards the statistical data relating to the Portuguese judicial system, it should be referred that, even though there is information concerning the year 2002, the reference date will be the year 2000, in order to allow a comparative analysis on the selected countries.
The choice of Spain, France and Italy, in this study, had as basis, among other criteria, the proximity of their judicial systems (civil law system in opposition to the common law system existing in Great-Britain), the geographical location within the European Union’s scope, the cultural and linguistic affinities and the never neglectful restrictions related to information and statistical data on other European systems.
The information concerning these countries derived from three different sources: the report on the European data base on judicial systems of the Instituto di Ricerca sui Sistemi Giudiziari (2000) an Italian central body of the European Research Network on Judicial Systems; the information, both statistical and descriptive, on the several judicial networks, at the internet site of the World Bank (http://www4.worldbank.org/legal/database/justice/) and, lastly, the internet site (http://www.simons-law.com) as referred to in the links of the Open Society Institute in liaison with the EU Accession Monitoring Program (http://www.eumap.org7reports) containing reports on the European judicial systems.
There has been some setbacks in the collecting of information either of a qualitative or quantitative nature on the Spanish, French and Italian judicial systems. Owing to the lack of feasible sources, the information compiled reveals some weak points, such as for instance, the too brief descriptions, perhaps incomplete, of the respective judicial systems; the absence of up-to-date statistical data; not uniform data collecting; etc.
Bearing in mind these limitations, we shall describe the Portuguese judicial network and, whenever possible, the comparative references of the countries aforementioned.
The Portuguese legal system
As concerns the Portuguese courts network, the Constitution of the Portuguese Republic established a fundamental distinction between civil jurisdiction and administrative jurisdiction, without prejudice to the Constitutional Court own jurisdiction. In Spain there is only a common jurisdiction, specialized as follows: the civil jurisdiction (responsible for the civil, commercial, family and social security areas), the criminal jurisdiction (criminal and juvenile) and the administrative jurisdiction (public law). In Italy there are three jurisdictions: judicial or ordinary courts (civil, criminal, labour and agriculture), administrative courts and also audit courts. France has just two jurisdictions: on one hand, the ordinary courts (responsible for civil, criminal, commercial, labour, agriculture and social security matters) and, on the other hand, the administrative courts.
As regards the national judicial system and bearing in mind the Administrative Justice Reform, foreseen for the year 2004, the administrative jurisdiction shall not be here analysed.
In the civil jurisdiction, the judicial courts are organized into three degrees or instances, to which it corresponds a specific jurisdiction area. From a more broaden to a more restricted view, we have first of all the Supreme Court of Justice with a national jurisdiction level; then the Courts of Appeal with district jurisdiction and in the end, the first instance courts, usually referred to as county courts.
Both in Spain and in Italy there are equally three judicial levels, hierarchically defined. In Spain: the Supreme Court; the second instance high courts and last of all the county supreme courts and the first instance courts. In Italy: the Corte de Cassazione; the appeal courts and, with a more restricted jurisdiction, the Tribunali (of general jurisdiction) and the peace courts (Guici di Pace). Laying aside the courts of unique jurisdiction (labour, juvenile, social security and commerce), in France there are, in a descending hierarchical order, La Cour de Cassation; the high courts of appeal; the courts of appeal; the district courts; the instance courts and the judges’ courts.
In Portugal, there are four internal jurisdiction criteria which define which court is competent to judge a certain action:
i) Matter – the several proceedings are divided among the courts in accordance with the matter they deal with;
ii) Hierarchy – in terms of appeals, the courts follow a certain jurisdictional hierarchy;
iii) Value – the value of the cause determines those first instance courts which are competent to judge the action. It is also defined ceilings on the basis of the value of the action in order to allow the right of appeal;
iv) Territory – each court has a certain territorial jurisdiction. The choice of the court to judge certain kinds of actions may be conditioned to the place where the fact actually occurred.
We shall now proceed to analyse, in more detail, the structure of the previously mentioned instances, starting by the first instance courts[2].
The courts of first instance may be divided into three categories.
- The specialized jurisdiction courts hear specific matters irrespective of the form of procedure (criminal instruction, family and juvenile, labour, commerce, maritime and enforcement of sanctions). The criminal instruction courts deal with the criminal instruction, deciding on the indictment and on all judicial acts of the inquiry. The family courts deal with actions related to the spouses, (such as divorce proceedings and separation of spouses and property.) They are also competent to decide on matters related to minors and children of age.
- The juvenile courts are competent to decide on measures to be applied to minors between 12 and 16 years of age who are, in general, in a risking situation, either in view of mistreatment or abandonment or by having committed a criminal infraction qualified as such by criminal law. The labour courts decide on disputes deriving from labour relations. The commerce courts decide on actions which, in general, involve traders. The maritime court is competent to decide on maritime commercial law matters. And lastly, the enforcement of sanctions courts are competent to enforce the prison sentence and the safety measures towards non-imputable inmates.
- The specific jurisdiction courts hear certain matters in view of the applicable form of procedure (they are organized into civil divisions, criminal divisions, civil benches, criminal benches, civil small claims courts, criminal small claims courts and civil enforcement courts[3]). Finally, the general jurisdiction courts decide and organize all the cases other than those allocated to any of the two aforementioned courts. Although rare, there may be courts, like the county court of Velas (Azores) that organizes and decides on all kinds of procedures irrespective of their matter, in view of the fact that there is not a specialized court within their area of jurisdiction.
The courts of general, specialized or specific jurisdiction may divide themselves into benches. In the county courts[4] the benches may be of general, specialized or specific jurisdiction. That is, the courts of specialized and specific jurisdiction may divide themselves into different benches but with the same jurisdiction; on its part, the general jurisdiction courts may divide themselves into benches with different jurisdiction, in accordance with the matter and the form of procedure.
The courts of Appeal are, as a rule, courts of second instance. They are also divided into sections of a civil, criminal and social nature (this latter decides, in general, on labour matters). Only the Oporto judicial district encompasses two courts of Appeal (Oporto and Guimarães); the remaining national judicial districts (Coimbra, Lisbon and Évora) have only one court with territorial jurisdiction over all the judicial circuits of their respective districts.
The Supreme Court of Justice which seats in Lisbon and has jurisdiction over all the national territory is equally organized into three kinds of sessions: civil matter, criminal matter and social matter.
Out of the aforementioned scheme are the Peace Courts, reinstalled in the Portuguese legal order in 2001. As they are more concerned with dispute resolution and social peace than with the strict application of the law, they are characterized by a different logic than the one presiding over the traditional courts, being compulsory at the outset a mediation phase. Also, as the value of the cause cannot exceed the ceiling set for the courts of first instance, their competence extends, especially, to the civil patrimonial issues – real and obligations. The peace courts are also competent to hear civil indemnity requests arising from some types of crime (for instance, bodily harm, libel, slander, theft, etc). They have just declarative competence and their decisions are enforced by the first instance courts.
There are also Peace Courts in Italy (a total of 848) and in Spain, being worth mention that, in Italy, they deal mainly with dispute resolutions at a local level.
Last but not least, there is also in Portugal:
o The Constitutional Court – entrusted specifically with the administration of justice in matters of a legal-constitutional nature;
o The Audit Court - the body with authority to scrutinise the legality of public expenditure;
o The Conflict Court – which decides on jurisdictional conflicts;
o The arbitration tribunals – which mainly hold a private nature.
In Portugal, civil disputes are addressed in first instance at the district courts. These courts are organised in chambers and some of them include specialised chambers for commercial and civil matters. The judgments of the district courts may be appealed to the Courts of Appeal, whose area of competence is defined by reference to the district courts. Finally, the Supreme Court of Justice, a state court, may review the decisions of the Courts of Appeal in matters of law.
Further to the constitutional doctrine of the separation of powers, Portuguese courts are completely independent from the other branches of power (ie, the political, executive and the legislative powers). In Portugal, the Superior Council of Magistrates, as the senior body of the structure and discipline of the Portuguese judges, appoints the judges and assigns them to their respective courts.
Moreover, judges are not only independent before the remaining sovereign powers but also between themselves (ie, a court is not bound by its own decisions or by decisions of other courts). Nonetheless, on practical terms, the lower judges tend to follow the reasoning and decisions adopted by the higher courts and are often influenced by prior established jurisprudence on a particular matter of law.
With the exception of some criminal matters, juries are not allowed. Therefore, on civil and commercial matters cases are always judged by professional judges.
Summary
Constitutional norms regarding the judicial network
Administrative jurisdiction – brief reference
Civil jurisdiction
3.1. Judicial division
3.2. Kinds of courts
3.3. Internal jurisdiction criteria: matter, hierarchy, territory, value and form of procedure.
Supreme Court of Justice
Courts of Appeal
Courts of first instance.
6.1. General jurisdiction courts, specialized judicial jurisdiction and specific jurisdiction courts.
6.2. Specialized jurisdiction courts: criminal instruction, family and juvenile, labour, commerce, maritime and enforcement of sanctions.
6.3. Specialized jurisdiction courts: civil and criminal
6.4. Specific jurisdiction courts: civil & criminal divisions, civil and criminal benches, civil and criminal small claims courts and civil enforcement courts.
6.5. One-judge court, collective court and jury court
Peace courts
1. Constitutional norms regarding the judicial network
The Constitution of the Portuguese Republic establishes, under article 209 and forth, the organization of the Portuguese courts.
In those articles a fundamental distinction is set between, on one hand, the civil jurisdiction and, on the other hand, the administrative one. The Constitutional Court, the Audit Court, the arbitration tribunals and the peace courts are also referred.
The jurisdictional conflicts among these courts are settled by a Conflict Court regulated by law.
In accordance with the Constitution, the judicial courts are common courts which deal with civil and criminal issues, with jurisdiction in all matters not allocated to other judicial bodies; the administrative and tax courts are competent to settle disputes arising out of administrative and tax legal relations.
The Audit Court is the body with authority to scrutinise the legality of public expenditure and judge such accounts as the law may require to be submitted to it.
Last but not least, the Constitutional Court is the body entrusted specifically with the administration of justice in matters of a legal-constitutional nature.
We shall not talk about the arbitration tribunals due to the fact that they hold a private nature. The peace courts shall be referred to in the last part of this paper.
2. Administrative jurisdiction
The administrative jurisdiction in Portugal is undergoing a change. Today there are three kinds of courts: the Administrative Supreme Court, the Central Administrative Court and the Circuit Administrative Courts.
It is not however, a regular hierarchy as they are all competent at first instance, having significant competences as regards their workload level.
The administrative justice reform was approved in 2002 and has entered into force in January 2004. This reform foresees the establishment of 10 new circuit courts (where there were only 3), as well as the restructure of all the competences in order to place the Administrative Supreme Court as a true court of last resort and the circuit courts, courts where proceedings can be initiated.
3. Civil jurisdiction
The organization of the civil jurisdiction is, in general, regulated by the Law 3/99, of 13 January, Law on the Organization and Functioning of the Judicial Courts (LOFJC)[1]. This law has been regulated by the Decree-Law n. 186-B/99, of 31 May[2]. Some of these norms are also comprised in the Civil Procedural Code.
3.1. Judicial Division
In terms of civil jurisdiction, the national territory is divided into judicial districts, judicial circuits and county courts.
The judicial districts are, currently, four. Lisbon, Oporto, Évora and Coimbra. Each of the judicial districts has one or more Courts of Appeal.
3.2. Kinds of courts
The judicial courts divide themselves into three degrees or instances: the courts of first instance, which are, in general, the county courts; the courts of second instance, which are the Courts of Appeal; and lastly, the Supreme Court of Justice.
The Courts of Appeal have jurisdiction within their own judicial district or part of it, while the first instance courts are competent in their own jurisdiction.
In order to know exactly the jurisdiction of a certain county court, one should read the Decree-Law n. 186-B/99, of 31 May. This information is also available online, on the site of the Directorate-General for Justice Administration, of the Ministry of Justice – www.dgsj.pt
3.3. Internal jurisdiction criteria
Once established the international jurisdiction of the Portuguese courts, to which Portugal is bound (maxime Council Regulation (EC) n. 44/2001, of 22 December 2000), or according to the norms of internal law as contained in articles 65 and 65_A of the Civil Procedural Code, it is important to know which, among the Portuguese courts, is competent to judge the action at issue.
There are 4 internal jurisdiction criteria: matter, hierarchy, value and territory.
In accordance with the matter criteria, the judicial courts are competent to decide on any actions other than those allocated to another jurisdictional body. In line with this criterion, the actions are distributed among the courts according with the issue they deal with. The specialized jurisdiction courts located in Portugal shall be referred to later on.
In terms of appeals, the courts follow a certain jurisdictional hierarchy. As a rule, the Supreme Court of Justice hears and determines the appeals on proceedings whose value exceeds the ceiling set for the Courts of Appeal and these decide on proceedings whose value exceeds the ceiling set for the first instance courts.
The ceilings currently in force have the following values: the ceiling set for the Courts of Appeal is 14.963,94€ and for the first instance courts is 3.740,98€.
So, as a rule, only those cases whose value exceeds the 3.741€ have right of appeal. Only those case whose value exceeds 14.963,94€ may be appealed to the Supreme Court of Justice.
The value of the case also determines, within the first instance courts’ scope, which courts are competent to hear a certain case. Hence, a declarative action whose value exceeds 15.000€ and in which the law foresees the intervention of a collective court, shall be, as a rule, within the jurisdiction of the civil divisions (article 97, n. 1a) LOFJC).
The territorial jurisdiction criteria are set out, on one hand, in the articles of the Civil Procedural Code and, on the other hand, in the Decree which has regulated the LOFJC.
For instance, an action for extra-contractual civil liability based on a road accident should be intended at the place where the accident occurred – article 74, n. 2 of the Civil Procedural Code. If the accident occurred in the Lisbon-Oporto highway, in Cartaxo, it will be the county court of Cartaxo the one competent to hear the case.
4. The Supreme Court of Justice
We shall analyse now, in more detail, the structure of each kind of court, starting by the Supreme Court of Justice.
The Supreme Court of Justice seats in Lisbon and has jurisdiction over all the national territory.
As a rule, it only hears or determines on matter of law but under no circumstances on factual matters.
It is organized in three kinds of sessions: civil matter, criminal matter and social matter. The first one deals with matters not allocated to the other two. The criminal ones decide on criminal issues and the social ones judge, in general, the labour matters.
The Supreme Court of Justice may function in three different ways: in plenary with all its judges, in full session, within the specialized sections and by sections. Each section is composed of 3 judges.
The plenary is competent to hear the appeals on decisions delivered by the full session of the criminal sections and to decide on conflicts of jurisdiction between the full session and the sections, or else, between the sections.
The full session of the sections is competent to judge the high national dignitaries – the President of the Republic, the President of the Assembly of the Republic and the Prime-Minister by acts performed in the course of their duties; it is also competent to consider the appeals on decisions delivered by the sections in first instance and to harmonize the case-law.
Lastly, it is up to the sections to judge the remaining appeals, and to decide on criminal cases regarding certain people – the judge of the Supreme Court of Justice, of the Court of Appeal, etc.)
5. Courts of Appeal
The Courts of Appeal are, in general, courts of second instance. They are also divided into sections of a civil, criminal and social matter.
Currently there are 5 Courts of Appeal: Lisbon, Oporto, Évora, Coimbra and Guimarães. The courts located in Lisbon, Évora and Coimbra have jurisdiction over their own judicial region. The courts located in Oporto and Guimarães divide the Oporto district: the Guimarães court has jurisdiction over Guimarães, Braga, Barcelos and Viana do Castelo judicial circuits and the Oporto court over the remaining ones.
The courts function in plenary and by sections. The plenary is competent to decide on conflicts of jurisdiction between sections, and the sections are not only competent to hear appeals but also, in first instance, to decide on actions filed against judges and public prosecutors for acts performed in the course of their duties, criminal cases involving judges, etc. The Courts of Appeal, and especially the sections, are also competent to consider the review and recognition of foreign decisions.
6. Courts of first instance
In accordance to certain criteria, there are several kinds of first instance courts.
To better understand the judicial network, we shall look into three very different examples of national municipalities.
In Lisbon, there are, at the first instance level: 17 civil divisions, 10 civil benches, 1 civil small claims court, 9 criminal divisions, 6 criminal benches, 1 criminal small claims court, 1 criminal instruction central court and 1 criminal instruction court, 4 family and juvenile courts, 3 labour courts benches, 1 commerce court, 1 maritime court and 1 enforcement of sanctions court.
In Aveiro there are, at the first instance level: in the county court, 1 civil specialized jurisdiction bench and 1 criminal specialized jurisdiction bench, 1 labour court and 1 family and juvenile court.
In Armamar, we only have a county court.
Constitutional norms regarding the judicial network
Administrative jurisdiction – brief reference
Civil jurisdiction
3.1. Judicial division
3.2. Kinds of courts
3.3. Internal jurisdiction criteria: matter, hierarchy, territory, value and form of procedure.
Supreme Court of Justice
Courts of Appeal
Courts of first instance.
6.1. General jurisdiction courts, specialized judicial jurisdiction and specific jurisdiction courts.
6.2. Specialized jurisdiction courts: criminal instruction, family and juvenile, labour, commerce, maritime and enforcement of sanctions.
6.3. Specialized jurisdiction courts: civil and criminal
6.4. Specific jurisdiction courts: civil & criminal divisions, civil and criminal benches, civil and criminal small claims courts and civil enforcement courts.
6.5. One-judge court, collective court and jury court
Peace courts
1. Constitutional norms regarding the judicial network
The Constitution of the Portuguese Republic establishes, under article 209 and forth, the organization of the Portuguese courts.
In those articles a fundamental distinction is set between, on one hand, the civil jurisdiction and, on the other hand, the administrative one. The Constitutional Court, the Audit Court, the arbitration tribunals and the peace courts are also referred.
The jurisdictional conflicts among these courts are settled by a Conflict Court regulated by law.
In accordance with the Constitution, the judicial courts are common courts which deal with civil and criminal issues, with jurisdiction in all matters not allocated to other judicial bodies; the administrative and tax courts are competent to settle disputes arising out of administrative and tax legal relations.
The Audit Court is the body with authority to scrutinise the legality of public expenditure and judge such accounts as the law may require to be submitted to it.
Last but not least, the Constitutional Court is the body entrusted specifically with the administration of justice in matters of a legal-constitutional nature.
We shall not talk about the arbitration tribunals due to the fact that they hold a private nature. The peace courts shall be referred to in the last part of this paper.
2. Administrative jurisdiction
The administrative jurisdiction in Portugal is undergoing a change. Today there are three kinds of courts: the Administrative Supreme Court, the Central Administrative Court and the Circuit Administrative Courts.
It is not however, a regular hierarchy as they are all competent at first instance, having significant competences as regards their workload level.
The administrative justice reform was approved in 2002 and has entered into force in January 2004. This reform foresees the establishment of 10 new circuit courts (where there were only 3), as well as the restructure of all the competences in order to place the Administrative Supreme Court as a true court of last resort and the circuit courts, courts where proceedings can be initiated.
3. Civil jurisdiction
The organization of the civil jurisdiction is, in general, regulated by the Law 3/99, of 13 January, Law on the Organization and Functioning of the Judicial Courts (LOFJC)[1]. This law has been regulated by the Decree-Law n. 186-B/99, of 31 May[2]. Some of these norms are also comprised in the Civil Procedural Code.
3.1. Judicial Division
In terms of civil jurisdiction, the national territory is divided into judicial districts, judicial circuits and county courts.
The judicial districts are, currently, four. Lisbon, Oporto, Évora and Coimbra. Each of the judicial districts has one or more Courts of Appeal.
3.2. Kinds of courts
The judicial courts divide themselves into three degrees or instances: the courts of first instance, which are, in general, the county courts; the courts of second instance, which are the Courts of Appeal; and lastly, the Supreme Court of Justice.
The Courts of Appeal have jurisdiction within their own judicial district or part of it, while the first instance courts are competent in their own jurisdiction.
In order to know exactly the jurisdiction of a certain county court, one should read the Decree-Law n. 186-B/99, of 31 May. This information is also available online, on the site of the Directorate-General for Justice Administration, of the Ministry of Justice – www.dgsj.pt
3.3. Internal jurisdiction criteria
Once established the international jurisdiction of the Portuguese courts, to which Portugal is bound (maxime Council Regulation (EC) n. 44/2001, of 22 December 2000), or according to the norms of internal law as contained in articles 65 and 65_A of the Civil Procedural Code, it is important to know which, among the Portuguese courts, is competent to judge the action at issue.
There are 4 internal jurisdiction criteria: matter, hierarchy, value and territory.
In accordance with the matter criteria, the judicial courts are competent to decide on any actions other than those allocated to another jurisdictional body. In line with this criterion, the actions are distributed among the courts according with the issue they deal with. The specialized jurisdiction courts located in Portugal shall be referred to later on.
In terms of appeals, the courts follow a certain jurisdictional hierarchy. As a rule, the Supreme Court of Justice hears and determines the appeals on proceedings whose value exceeds the ceiling set for the Courts of Appeal and these decide on proceedings whose value exceeds the ceiling set for the first instance courts.
The ceilings currently in force have the following values: the ceiling set for the Courts of Appeal is 14.963,94€ and for the first instance courts is 3.740,98€.
So, as a rule, only those cases whose value exceeds the 3.741€ have right of appeal. Only those case whose value exceeds 14.963,94€ may be appealed to the Supreme Court of Justice.
The value of the case also determines, within the first instance courts’ scope, which courts are competent to hear a certain case. Hence, a declarative action whose value exceeds 15.000€ and in which the law foresees the intervention of a collective court, shall be, as a rule, within the jurisdiction of the civil divisions (article 97, n. 1a) LOFJC).
The territorial jurisdiction criteria are set out, on one hand, in the articles of the Civil Procedural Code and, on the other hand, in the Decree which has regulated the LOFJC.
For instance, an action for extra-contractual civil liability based on a road accident should be intended at the place where the accident occurred – article 74, n. 2 of the Civil Procedural Code. If the accident occurred in the Lisbon-Oporto highway, in Cartaxo, it will be the county court of Cartaxo the one competent to hear the case.
4. The Supreme Court of Justice
We shall analyse now, in more detail, the structure of each kind of court, starting by the Supreme Court of Justice.
The Supreme Court of Justice seats in Lisbon and has jurisdiction over all the national territory.
As a rule, it only hears or determines on matter of law but under no circumstances on factual matters.
It is organized in three kinds of sessions: civil matter, criminal matter and social matter. The first one deals with matters not allocated to the other two. The criminal ones decide on criminal issues and the social ones judge, in general, the labour matters.
The Supreme Court of Justice may function in three different ways: in plenary with all its judges, in full session, within the specialized sections and by sections. Each section is composed of 3 judges.
The plenary is competent to hear the appeals on decisions delivered by the full session of the criminal sections and to decide on conflicts of jurisdiction between the full session and the sections, or else, between the sections.
The full session of the sections is competent to judge the high national dignitaries – the President of the Republic, the President of the Assembly of the Republic and the Prime-Minister by acts performed in the course of their duties; it is also competent to consider the appeals on decisions delivered by the sections in first instance and to harmonize the case-law.
Lastly, it is up to the sections to judge the remaining appeals, and to decide on criminal cases regarding certain people – the judge of the Supreme Court of Justice, of the Court of Appeal, etc.)
5. Courts of Appeal
The Courts of Appeal are, in general, courts of second instance. They are also divided into sections of a civil, criminal and social matter.
Currently there are 5 Courts of Appeal: Lisbon, Oporto, Évora, Coimbra and Guimarães. The courts located in Lisbon, Évora and Coimbra have jurisdiction over their own judicial region. The courts located in Oporto and Guimarães divide the Oporto district: the Guimarães court has jurisdiction over Guimarães, Braga, Barcelos and Viana do Castelo judicial circuits and the Oporto court over the remaining ones.
The courts function in plenary and by sections. The plenary is competent to decide on conflicts of jurisdiction between sections, and the sections are not only competent to hear appeals but also, in first instance, to decide on actions filed against judges and public prosecutors for acts performed in the course of their duties, criminal cases involving judges, etc. The Courts of Appeal, and especially the sections, are also competent to consider the review and recognition of foreign decisions.
6. Courts of first instance
In accordance to certain criteria, there are several kinds of first instance courts.
To better understand the judicial network, we shall look into three very different examples of national municipalities.
In Lisbon, there are, at the first instance level: 17 civil divisions, 10 civil benches, 1 civil small claims court, 9 criminal divisions, 6 criminal benches, 1 criminal small claims court, 1 criminal instruction central court and 1 criminal instruction court, 4 family and juvenile courts, 3 labour courts benches, 1 commerce court, 1 maritime court and 1 enforcement of sanctions court.
In Aveiro there are, at the first instance level: in the county court, 1 civil specialized jurisdiction bench and 1 criminal specialized jurisdiction bench, 1 labour court and 1 family and juvenile court.
In Armamar, we only have a county court.
6.1. Courts of general jurisdiction, specialized courts and specific courts
The civil jurisdiction first instance courts are divided in accordance with three categories: general jurisdiction, specialized jurisdiction and specific jurisdiction.
The courts of general jurisdiction decide and organize all the cases other than those allocated to other courts. What other courts are they? They are of specialized jurisdiction and specific jurisdiction.
The specialized jurisdiction courts hear specific matters, irrespective of the form of procedure. The courts of specific jurisdiction hear certain matters in view of the applicable form of procedure.
The courts of general, specialized or specific jurisdiction may be divided into benches. In the county courts, the benches may have general, specialized or specific jurisdiction.
The reasoning behind this is the following: not only the “special” courts may divide themselves into different benches with the same jurisdiction but also the “general” courts may divide themselves into benches with different jurisdiction, in accordance with the matter and the form of procedure.
The specialized jurisdiction courts which currently exist in Portugal are the following: criminal instruction, family, juvenile, labour, commerce, maritime, and enforcement of sanctions. We shall see what matters fall within the jurisdiction of each of these courts.
The courts of specific jurisdiction are: the civil divisions, the criminal divisions, the civil benches, the criminal benches, the civil small claims courts, the criminal small claims courts and the civil enforcement courts.
The county courts can be also divided into criminal and civil specialized jurisdiction benches.
We shall analyse separately each of these categories.
The civil jurisdiction first instance courts are divided in accordance with three categories: general jurisdiction, specialized jurisdiction and specific jurisdiction.
The courts of general jurisdiction decide and organize all the cases other than those allocated to other courts. What other courts are they? They are of specialized jurisdiction and specific jurisdiction.
The specialized jurisdiction courts hear specific matters, irrespective of the form of procedure. The courts of specific jurisdiction hear certain matters in view of the applicable form of procedure.
The courts of general, specialized or specific jurisdiction may be divided into benches. In the county courts, the benches may have general, specialized or specific jurisdiction.
The reasoning behind this is the following: not only the “special” courts may divide themselves into different benches with the same jurisdiction but also the “general” courts may divide themselves into benches with different jurisdiction, in accordance with the matter and the form of procedure.
The specialized jurisdiction courts which currently exist in Portugal are the following: criminal instruction, family, juvenile, labour, commerce, maritime, and enforcement of sanctions. We shall see what matters fall within the jurisdiction of each of these courts.
The courts of specific jurisdiction are: the civil divisions, the criminal divisions, the civil benches, the criminal benches, the civil small claims courts, the criminal small claims courts and the civil enforcement courts.
The county courts can be also divided into criminal and civil specialized jurisdiction benches.
We shall analyse separately each of these categories.
6.2. Specialized jurisdiction courts
Currently, there are in Portugal the following specialized jurisdiction courts: criminal instruction, family, juvenile, labour, commerce, maritime and enforcement of sanctions. We shall see what matters fall within the jurisdiction of each of these courts.
The criminal instruction courts deal with the criminal instruction, deciding on the indictment and on all judicial acts of the inquiry.
The family courts deal with actions related to the spouses, maxime divorce proceedings and separation of spouses and property. They are also competent to decide on matters related to minors and children of age, such as those concerning the tutelage and property or goods management, the adoption, the regulation of parental responsibility, etc.
The juvenile courts are competent to decide on measures to be applied to minors between 12 and 16 years of age who are, in general, in a risking situation, either in view of mistreatment or abandonment or by having committed a criminal infraction qualified as such by criminal law.
The labour courts decide on disputes arising from labour relations, such as contractual actions, work-accidents, actions between trade union associations and their partners, etc. They are also competent to enforce their own decisions, a competence that has not been amended by the administrative justice reform given the special regulation of the labour enforcement actions.
The commerce courts decide on actions which, in general, involve traders. Among these it should be noted the insolvency and company rescue proceedings, the actions related to defaulted contracts, to social deliberations and actions related to industrial property.
The maritime courts hear on maritime commercial law matters, namely those issues related to ships, such as for instance, the indemnities due to damage caused or suffered by the ships, mortgages and privileges on ships and boats, etc.
Lastly, the enforcement of sanctions courts are competent to enforce the prison sentence and the safety measures towards non-imputable inmates. Hence, they are competent to decide on whether to concede conditional release or parole and to decide on its repeal, to declare the end of the prison sentence, etc.
Currently, there are in Portugal the following specialized jurisdiction courts: criminal instruction, family, juvenile, labour, commerce, maritime and enforcement of sanctions. We shall see what matters fall within the jurisdiction of each of these courts.
The criminal instruction courts deal with the criminal instruction, deciding on the indictment and on all judicial acts of the inquiry.
The family courts deal with actions related to the spouses, maxime divorce proceedings and separation of spouses and property. They are also competent to decide on matters related to minors and children of age, such as those concerning the tutelage and property or goods management, the adoption, the regulation of parental responsibility, etc.
The juvenile courts are competent to decide on measures to be applied to minors between 12 and 16 years of age who are, in general, in a risking situation, either in view of mistreatment or abandonment or by having committed a criminal infraction qualified as such by criminal law.
The labour courts decide on disputes arising from labour relations, such as contractual actions, work-accidents, actions between trade union associations and their partners, etc. They are also competent to enforce their own decisions, a competence that has not been amended by the administrative justice reform given the special regulation of the labour enforcement actions.
The commerce courts decide on actions which, in general, involve traders. Among these it should be noted the insolvency and company rescue proceedings, the actions related to defaulted contracts, to social deliberations and actions related to industrial property.
The maritime courts hear on maritime commercial law matters, namely those issues related to ships, such as for instance, the indemnities due to damage caused or suffered by the ships, mortgages and privileges on ships and boats, etc.
Lastly, the enforcement of sanctions courts are competent to enforce the prison sentence and the safety measures towards non-imputable inmates. Hence, they are competent to decide on whether to concede conditional release or parole and to decide on its repeal, to declare the end of the prison sentence, etc.
6.3. Specialized jurisdiction courts
The specialized jurisdiction courts are county courts’ divisions and can only be of two kinds: civil and criminal. As illustrated in the example aforementioned, the county court of Aveiro is divided into two specialized jurisdiction benches.
The specialized civil jurisdiction benches are competent to decide the actions that are not allocated to other courts. The criminal specialized jurisdiction benches are competent to hear the criminal proceedings.
In Aveiro, besides the specialized jurisdiction benches there is a labour court and a family and juvenile court. The distribution is done as follows: these two courts decide on the matter allocated to them, while courts of specialized jurisdiction; the remaining ones are divided between criminal matter – allocated to the criminal specialized jurisdiction – and the others – which are dealt with in the civil specialized jurisdiction. Here are judged, for example, the legal persons’ insolvency and company rescue proceedings, located in Aveiro.
The specialized jurisdiction courts are county courts’ divisions and can only be of two kinds: civil and criminal. As illustrated in the example aforementioned, the county court of Aveiro is divided into two specialized jurisdiction benches.
The specialized civil jurisdiction benches are competent to decide the actions that are not allocated to other courts. The criminal specialized jurisdiction benches are competent to hear the criminal proceedings.
In Aveiro, besides the specialized jurisdiction benches there is a labour court and a family and juvenile court. The distribution is done as follows: these two courts decide on the matter allocated to them, while courts of specialized jurisdiction; the remaining ones are divided between criminal matter – allocated to the criminal specialized jurisdiction – and the others – which are dealt with in the civil specialized jurisdiction. Here are judged, for example, the legal persons’ insolvency and company rescue proceedings, located in Aveiro.
6.4. Courts of specific jurisdiction
Within the scope of the courts of specific jurisdiction, and as above referred to, we find the civil divisions, the criminal divisions, the civil benches, the criminal benches, the civil small claims courts, the criminal small claims courts and the civil enforcement courts.
The criminal divisions hear proceedings of a criminal nature, under the jurisdiction of the collective court. The criminal benches decide on all the actions other than those allocated to the divisions or to the benches. The criminal benches deal with actions that have a summary, abridged or summary and fast form of procedure.
The civil divisions are competent to organize and decide upon civil declarative actions whose value exceeds the ceiling set for the Courts of Appeal and to which the law foresees the intervention of a collective court. The civil benches hear actions of a civil nature that do not fall under the jurisdiction of the civil divisions and of the civil small claims courts. The civil small claims courts decide on actions with a summary and fast form of procedure and those which are not foreseen in the Civil Procedural Code and whose decision does not give rise to an ordinary appeal.
For instance, it falls within the jurisdiction of the civil division an action of eviction for non-payment of rent, whose value is 20.000€. A simple civil action, initiated, for example, owing to an objection to a fast track procedure, falls under the jurisdiction of the civil small claims court.
As regards the civil enforcement courts – a novelty brought about by the reform of the civil enforcement action of Mars 2003 – their jurisdiction extends to all the actions foreseen in the Civil Procedural Code, even if, at the material level, they fall under the declarative competence of other courts.
Within the scope of the courts of specific jurisdiction, and as above referred to, we find the civil divisions, the criminal divisions, the civil benches, the criminal benches, the civil small claims courts, the criminal small claims courts and the civil enforcement courts.
The criminal divisions hear proceedings of a criminal nature, under the jurisdiction of the collective court. The criminal benches decide on all the actions other than those allocated to the divisions or to the benches. The criminal benches deal with actions that have a summary, abridged or summary and fast form of procedure.
The civil divisions are competent to organize and decide upon civil declarative actions whose value exceeds the ceiling set for the Courts of Appeal and to which the law foresees the intervention of a collective court. The civil benches hear actions of a civil nature that do not fall under the jurisdiction of the civil divisions and of the civil small claims courts. The civil small claims courts decide on actions with a summary and fast form of procedure and those which are not foreseen in the Civil Procedural Code and whose decision does not give rise to an ordinary appeal.
For instance, it falls within the jurisdiction of the civil division an action of eviction for non-payment of rent, whose value is 20.000€. A simple civil action, initiated, for example, owing to an objection to a fast track procedure, falls under the jurisdiction of the civil small claims court.
As regards the civil enforcement courts – a novelty brought about by the reform of the civil enforcement action of Mars 2003 – their jurisdiction extends to all the actions foreseen in the Civil Procedural Code, even if, at the material level, they fall under the declarative competence of other courts.
6.5. One-judge court, collective court and jury court
There is one last classification which runs within the courts and which functions on a casual and not very regular manner.
The collective court is composed of three judges who are competent to decide, regarding criminal matters, the criminal cases with a heavy/serious sentence and, with respect to civil matters, the factual issues in actions whose value exceeds those allocated to the Courts of Appeal.
The intervention of the collective court in cases dealing with factual matter is only possible in ordinary civil procedure and at the request of both parties, being for that matter not a common situation.
The jury court has only place in criminal procedures and, even there, it is very restricted.
7. Peace courts
The peace courts are courts that fall out of this scheme and which are characterized by a different logic than the one presiding over the traditional courts. With a certain historical tradition, but already out of the Portuguese judicial order, they were reinstalled about two years ago under the Law 78/2001, of 13 July.
They have just declarative competence and their decisions are enforced by the first instance courts. They are only competent to decide on those actions whose value does not exceed the ceiling set for the first instance courts.
With regard to the matter, their competence extends, especially, to the civil patrimonial issues – real and obligations. The peace courts are also competent to hear civil indemnity requests arising from some types of crime, such as, for instance, bodily harm, libel, slander, theft.
The different logic followed is justified by the main principles established, more concerned with dispute resolution and social peace than with the strict application of the law. And so, even the procedure, which at the outset starts with a compulsory mediation phase, is different.
1. National court system
The Portuguese judicial system includes judicial courts and administrative courts, both of them falling within the appellate jurisdictions of two supreme courts: respectively, the Supreme Court of Justice and the Administrative Supreme Court.
Despite the separation by subject matter, these two courts’ rules and principles are exactly the same. Both the judicial courts and the administrative ones are independent and judge exclusively according to the law.
There is still one higher judicial authority, the Constitutional Court, whose competence is defined ratione materia and only judges issues related to the constitutionality of the rules themselves or as they have been applied by common courts.
As for the judicial courts, these include 3 levels of judicial courts: the lower courts Tribunais de Primeira Instância (Courts of first instance), the second instance courts Tribunais de Relação (Courts of Appeal), and the Supreme Court (Supremo Tribunal de Justiça).
The lower courts decide over the majority of disputes, and an appeal to a second instance court can be made depending on the monetary value and issues being disputed, except when personal rights (e.g. family cases) are under trial (in these cases appeals can be allowed notwithstanding the monetary value at issue).
The second instance courts decide mainly the appeals of the decisions of the lower courts. But they also decide other lawsuits. Amongst those issues these are the most important: the cases against law judges, military judges, district-attorneys, in relation to their functions; the crimes perpetrated by these officials; and lawsuits related to the international judiciary cooperation in criminal matters.
The supreme court of justice is designed to judge appeals from the lower courts, but also the following: cases against judges of the supreme court and district-attorneys regarding the official actions within the jurisdiction of the courts; crimes perpetrated by these judges and district-attorneys related to their official functions; matters of habeas corpus related with illegal arrests, among other things.
In the appellate system there are essentially two types of appeals that are subdivided into two categories:
The Portuguese judicial system includes judicial courts and administrative courts, both of them falling within the appellate jurisdictions of two supreme courts: respectively, the Supreme Court of Justice and the Administrative Supreme Court.
Despite the separation by subject matter, these two courts’ rules and principles are exactly the same. Both the judicial courts and the administrative ones are independent and judge exclusively according to the law.
There is still one higher judicial authority, the Constitutional Court, whose competence is defined ratione materia and only judges issues related to the constitutionality of the rules themselves or as they have been applied by common courts.
As for the judicial courts, these include 3 levels of judicial courts: the lower courts Tribunais de Primeira Instância (Courts of first instance), the second instance courts Tribunais de Relação (Courts of Appeal), and the Supreme Court (Supremo Tribunal de Justiça).
The lower courts decide over the majority of disputes, and an appeal to a second instance court can be made depending on the monetary value and issues being disputed, except when personal rights (e.g. family cases) are under trial (in these cases appeals can be allowed notwithstanding the monetary value at issue).
The second instance courts decide mainly the appeals of the decisions of the lower courts. But they also decide other lawsuits. Amongst those issues these are the most important: the cases against law judges, military judges, district-attorneys, in relation to their functions; the crimes perpetrated by these officials; and lawsuits related to the international judiciary cooperation in criminal matters.
The supreme court of justice is designed to judge appeals from the lower courts, but also the following: cases against judges of the supreme court and district-attorneys regarding the official actions within the jurisdiction of the courts; crimes perpetrated by these judges and district-attorneys related to their official functions; matters of habeas corpus related with illegal arrests, among other things.
In the appellate system there are essentially two types of appeals that are subdivided into two categories:
• ordinary appeals – those appeals that are presented within a period of 30 days after the sentence notification;
• appeal to the merits of the case with this appeal, a losing party tries to obtain a new decision about the merits of the sentence of the lower courts in the second instance courts;
• appeal to the higher courts; with this appeal, a losing party can obtain a new decision regarding the merits of the sentence passed by a second instance by application to the Supreme Court.
• appeal to the merits of the case with this appeal, a losing party tries to obtain a new decision about the merits of the sentence of the lower courts in the second instance courts;
• appeal to the higher courts; with this appeal, a losing party can obtain a new decision regarding the merits of the sentence passed by a second instance by application to the Supreme Court.
• extraordinary appeals – those appeals that are presented after that period of 30 days;
• appeal to unify the jurisprudence; with this appeal, the parties can present the appeal to the plenary of the Supreme Court when this court has decided differently in a previous case, about the same legislation and about the same fundamental question of law;
• revision appeal; with this appeal the parties can apply to have the decision of a lower courts, or of a second instance courts, re-evaluated under very strict circumstances, namely:
- another sentence as considered proved that the previous decision was the result of a crime committed by the deciding judge;
- a document, judicial act, expert opinion, arbitrator was false or untrue, and determined (influenced) the sentence and this issue was not discussed in the previous process;
- a document that the party was unaware of, or could not have knowledge of, and, is so pivotal to that it could change the previous decision to be in favour of the losing party;
- the transaction, confession, desistance was invalid;
- the previous decision is incompatible with a final decision of an international court that has binding application; or
- the dispute was decided based upon a simulated act of the parties and the court was not aware of that simulation.
Regarding administrative courts, these are also divided into three levels: the lower courts, the second instance courts and the Administrative Supreme Court.
The criteria to divide the jurisdiction among those three levels are the same as explained above for judicial courts and the rules related to appeals are similar given that the administrative appeal system is mainly the same as the established in the Code of Civil Procedure (CCP). When it comes to general rules related to appeals, it has to underline that also before administrative courts generally the appellant must present a reasoned request within 30 days after the appealed decision came to his/her knowledge.
Usually the appeal does not suspend the court’s decision but there are some exceptions.
Most of the decisions do admit only one, not two successive appeals. However, the administrative judicial system also recognises appeals to unify the jurisprudence (recurso de uniformização de jurisprudência) before the plenary of the Administrative Supreme Court.
As far as the proceedings before the Constitutional Court are concerned, the following can be stated. Appeals against judicial decisions made to the Constitutional Court are restricted to questions raised regarding unconstitutionality or illegality.
Appeals before the Constitutional Court may be presented by individuals in circumstances such as the following court decisions:
- rejecting the application of a rule on the grounds of unconstitutionality;
- applying a rule where the unconstitutionality of which has been raised during the proceedings. Deadlines are however more strict and an appeal with the Constitutional Court must be filed within 10 days. This appeal interrupts the period for filing other appeals that may be made to the decision, which may then be filed after interruption has ceased. Once the appeal is accepted deadline for allegations are 30 days as from the respective notification.
The decision on the appeal determines res judicata regarding the question of unconstitutionality or illegality. Should the Constitutional Court find the appeal to be well-founded, even if only partially, the proceedings drop back to the court from which they came, so that this same court, depending on the case, can change the decision or have it changed in agreement with the judgement on the question of unconstitutionality or illegality.
Restrictions regarding access to justice
No restrictions affecting the right to access have been reported. According to Article 20 of the Portuguese Constitution and Article 1 of the Code of Civil Procedure (CCP), there is a general access to a judicial body when the exercise of a legal right is involved. It means that all substantive rights – created by national, community or international law – must have a legal way to be exercised.
Length of judicial proceedings
Courts are usually slow in such decisions (more than one year). Administrative bodies make decisions in a short period of time (one month or less).
Are procedures concluded within a reasonable time?
Administrative procedures are concluded in a very short period of time whereas judicial proceedings tend to take longer than one year.
Does provision exist for speedy resolution of particular cases?
Usually, there are no provisions available to speed up administrative procedures. Nevertheless, it is possible to appeal to a court and ask for an interim decision. Urgent principal procedures – such as the one related to the protection of fundamental rights before administrative courts – are a kind of expedited procedure and the court's decision must come out within a very brief period (around 15 days).
Is it possible to waive the right of access to a judicial body?
According to Law 31/86, the parties involved in a dispute can chose to stipulate by agreement the acceptance without review of a decision adopted by an ad hoc court. By ad hoc one means that parties to a dispute are authorised to compose the court with judges they choose. Those do not include personal rights. Said ad hoc courts can never decide on personal rights, such as family rights and rights involved labour issues.
Access to non-judicial procedures
As regards racial discrimination, there is a special commission called the Comissão para a Igualdade e Discriminação Racial (CERD) [Commission for Equality and against Racial Discrimination], which was established by Law n.º 134/99, 28/0. The Commission works under the auspices of the Alto Comissariado para a Imigração e para o Diálogo Intercultural (HCIID) [High Commission for Immigration and Intercultural Dialogue] which define and applied sanctions. The Commission is a non-judicial body and can apply fines involving multiplications of the minimum wage. The decisions taken by the Commission are subject to appeal to judicial courts. The Provedor de Justiça [the Portuguese Ombudsman] also deals with complaints related to discriminatory practices.
The HCIID is a public institute enjoying administrative autonomy. However, it is still integrated into the Public Administration and is overseen by the Prime Minister. The High Commissioner cannot be dismissed by the Government and does not receive direct orders from the Executive. The High Commissioner is completely free to decide how the budget will be spent. According to Decree-Law n. 167/2007, 3rd May,1 the HCIID currently has a wider structure because its responsibilities have been broadened in order to include inter-religious dialogue.
The CERD is now chaired by the HCIID. It forms part of the agency charged with the defence and protection of immigrants and ethnic minorities. Created before the Directive – by Law 134/99 and set up in 2000 - the CERD is still a body empowered to promote equal treatment on the grounds of race or ethnic origin. Some powers are shared between the HCIID and CERD. For example, providing assistance to victims of discrimination in pursuing their complaints about discrimination a responsibility of the HCIID. Conducting independent surveys related to discrimination, publishing independent reports and making recommendations regarding issues of discrimination are the responsibility of the CERD.
To initiate the procedure required to apply fines, anyone can report a case of racial discrimination to the member of the Government responsible for equality and ethnic minorities to the HCIID, to CERD, or to the general inspectorate relevant to the matter. Moreover, any public body aware of a racial discrimination case has a duty to inform CERD (Article 9. Law n. 18/2004).
1 http://www.acidi.gov.pt/docs/ACIDI/Lei_organica_ACIDI.pdf (31.3.2009).
The CERD recommends that a complaint should be accompanied by the following: the name of the person lodging the complaint; a report of the facts including the identification of the alleged offender; eye-witnesses and a list of injuries (both emotional and physical) suffered by the person making the complaint.
It is the responsibility of CERD to monitor the enforcement of legislation regarding racial discrimination. It also has a duty to maintain a register of discriminatory behaviours and the sanctions applied. It also has the power to reveal publicly discriminatory occurrences. However, the decision to impose a fine or other sanctions is attributed to the High Commissioner.
The CERD plays the role of a consultative body thus forming an opinion regarding the general inspectorate's final report. Both the HCIID and CERD have no powers to investigate or lead an audit since these powers are exclusively attributed to general inspectorates. The CERD may only launch a process after having receiving complaints or reports of racial discrimination.
Regarding labour issues it should be noted that since 2006 there is an alternative dispute resolution process for cases concerning a contract of employment, except for matters relating to accidents and inalienable rights. This process was conceived to resolve disputes between workers and employers without the court intervention, but with the aid of a specially trained and certified labour mediator. It is called the system for labour mediation (SLM) and appeared after a protocol involving the Ministry of Justice and several confederations of employers and the two principal trade unions.
Since the beginning of the operation of the SLM on 19.12.2006, more than 80 entities have signed the form of mediation, including professional associations, employers and other unions of national relevance.
The SLM has the power to mediate disputes arising under the employment contracts such as those relating to the termination of a contract, promotions and disciplinary procedures. This means that some issues related to racial or gender-based discrimination in employment and work can also be resolved through mediation
The employer and the worker who have a dispute may voluntarily and by their joint decision, submit the dispute to mediation. Also the judge may, in accordance with Article 279-A of the Code of Civil Procedure, request such mediation, unless either party expressly opposes such a referral.
The use of the SML costs €50 for each party, regardless of the number of mediation sessions. However, the fee is waived when legal aid has been granted to one or more parties. This amount is far less (at least a third) than the amount due in judicial procedures.
Mediation work has a time limit of 3 months (a judicial process would last at least 8 months on average) to obtain an agreement. However, the parties, in agreement with the mediator may extend the duration of the mediation if they wish. On average, a process in SLM has a duration of 28 days. At present the SML functions throughout Portugal’s mainland.
Legal aid
According to Law 24/2004 (Article 8-A), people lacking financial means are entitled to free legal representation in court as well as legal advice. The criteria for determining who is eligible is based on the assessment of an individual’s income. NGOs that combat racism and promote non- discrimination on the grounds of race or ethnicity, may also provide legal assistiance. These NGOs can legitimately engage (either on behalf of or in support of the complainant) in judicial and administrative procedures (Article 5. Law n. 18/2004). NGOs are also represented by the CERD, and this enables them to express their views in investigation procedures. However, NGOs do not participate in these investigations. NGOs play an important role as awareness raisers among minorities. Information about minority rights and support for the victims plays a major part in ensuring the effectiveness of legislation addressing racial or ethnic discrimination. The list of NGOs can be seen on the web site. Since 2005, the High Commission for Immigration and Intercultural Dialogue (HCIID) has made an agreement with the Portuguese NGO Association for the Support of Victims of Crimes (ASVC).Within this NGO a special unit has been created aimed at giving support to immigrants and victims of racial or ethnic discrimination. Such support takes the following forms: legal aid, psychological assistance and emotional support. From May 2006 to April 2007, 232 cases were treated by ASVC. The most frequent cases involve domestic violence, exploitation at work, threats and insults.In general, legal advice is well provided by NGOs but very few of them offer legal representation in court.
Forms of satisfaction available to a vindicated party
In general terms, financial compensation can be awarded in non-discrimination proceedings. Regarding the compensation in labour discrimination cases, an employee or job applicant who is the victim of a discriminatory act is entitled to receive compensation (Article 28 of the Labour Code (LC)).
Adequacy of compensation
The amount of compensation is usually very low. It was only possible to identify two cases of compensation for non-physical damages. In both cases, the amount paid to the plaintiff/appellant did not exceed 2,800 Euros, a relatively small sum of money.
Rules relating to the payment of legal costs
The successful party may recover the amounts paid within the proceedings. Legal procedures in discrimination cases are not covered by special rules regarding financial risk.This means that court fees and fees of the attorney are paid by the plaintiffs, shared with the State or paid by the State. In that case, the fee depends on the amount of the plaintiffs' income.
Rules on burden of proof
The shift of the burden of proof is now part of the Portuguese legal system, with specific regulations regarding the Labour Code. When civil compensation is at stake (in other words, when the victim is suing the alleged perpetrator of a discriminatory act for damages) the burden of the proof shifts to said perpetrator, who now has to prove that he/she had no discriminatory intention.
• appeal to unify the jurisprudence; with this appeal, the parties can present the appeal to the plenary of the Supreme Court when this court has decided differently in a previous case, about the same legislation and about the same fundamental question of law;
• revision appeal; with this appeal the parties can apply to have the decision of a lower courts, or of a second instance courts, re-evaluated under very strict circumstances, namely:
- another sentence as considered proved that the previous decision was the result of a crime committed by the deciding judge;
- a document, judicial act, expert opinion, arbitrator was false or untrue, and determined (influenced) the sentence and this issue was not discussed in the previous process;
- a document that the party was unaware of, or could not have knowledge of, and, is so pivotal to that it could change the previous decision to be in favour of the losing party;
- the transaction, confession, desistance was invalid;
- the previous decision is incompatible with a final decision of an international court that has binding application; or
- the dispute was decided based upon a simulated act of the parties and the court was not aware of that simulation.
Regarding administrative courts, these are also divided into three levels: the lower courts, the second instance courts and the Administrative Supreme Court.
The criteria to divide the jurisdiction among those three levels are the same as explained above for judicial courts and the rules related to appeals are similar given that the administrative appeal system is mainly the same as the established in the Code of Civil Procedure (CCP). When it comes to general rules related to appeals, it has to underline that also before administrative courts generally the appellant must present a reasoned request within 30 days after the appealed decision came to his/her knowledge.
Usually the appeal does not suspend the court’s decision but there are some exceptions.
Most of the decisions do admit only one, not two successive appeals. However, the administrative judicial system also recognises appeals to unify the jurisprudence (recurso de uniformização de jurisprudência) before the plenary of the Administrative Supreme Court.
As far as the proceedings before the Constitutional Court are concerned, the following can be stated. Appeals against judicial decisions made to the Constitutional Court are restricted to questions raised regarding unconstitutionality or illegality.
Appeals before the Constitutional Court may be presented by individuals in circumstances such as the following court decisions:
- rejecting the application of a rule on the grounds of unconstitutionality;
- applying a rule where the unconstitutionality of which has been raised during the proceedings. Deadlines are however more strict and an appeal with the Constitutional Court must be filed within 10 days. This appeal interrupts the period for filing other appeals that may be made to the decision, which may then be filed after interruption has ceased. Once the appeal is accepted deadline for allegations are 30 days as from the respective notification.
The decision on the appeal determines res judicata regarding the question of unconstitutionality or illegality. Should the Constitutional Court find the appeal to be well-founded, even if only partially, the proceedings drop back to the court from which they came, so that this same court, depending on the case, can change the decision or have it changed in agreement with the judgement on the question of unconstitutionality or illegality.
Restrictions regarding access to justice
No restrictions affecting the right to access have been reported. According to Article 20 of the Portuguese Constitution and Article 1 of the Code of Civil Procedure (CCP), there is a general access to a judicial body when the exercise of a legal right is involved. It means that all substantive rights – created by national, community or international law – must have a legal way to be exercised.
Length of judicial proceedings
Courts are usually slow in such decisions (more than one year). Administrative bodies make decisions in a short period of time (one month or less).
Are procedures concluded within a reasonable time?
Administrative procedures are concluded in a very short period of time whereas judicial proceedings tend to take longer than one year.
Does provision exist for speedy resolution of particular cases?
Usually, there are no provisions available to speed up administrative procedures. Nevertheless, it is possible to appeal to a court and ask for an interim decision. Urgent principal procedures – such as the one related to the protection of fundamental rights before administrative courts – are a kind of expedited procedure and the court's decision must come out within a very brief period (around 15 days).
Is it possible to waive the right of access to a judicial body?
According to Law 31/86, the parties involved in a dispute can chose to stipulate by agreement the acceptance without review of a decision adopted by an ad hoc court. By ad hoc one means that parties to a dispute are authorised to compose the court with judges they choose. Those do not include personal rights. Said ad hoc courts can never decide on personal rights, such as family rights and rights involved labour issues.
Access to non-judicial procedures
As regards racial discrimination, there is a special commission called the Comissão para a Igualdade e Discriminação Racial (CERD) [Commission for Equality and against Racial Discrimination], which was established by Law n.º 134/99, 28/0. The Commission works under the auspices of the Alto Comissariado para a Imigração e para o Diálogo Intercultural (HCIID) [High Commission for Immigration and Intercultural Dialogue] which define and applied sanctions. The Commission is a non-judicial body and can apply fines involving multiplications of the minimum wage. The decisions taken by the Commission are subject to appeal to judicial courts. The Provedor de Justiça [the Portuguese Ombudsman] also deals with complaints related to discriminatory practices.
The HCIID is a public institute enjoying administrative autonomy. However, it is still integrated into the Public Administration and is overseen by the Prime Minister. The High Commissioner cannot be dismissed by the Government and does not receive direct orders from the Executive. The High Commissioner is completely free to decide how the budget will be spent. According to Decree-Law n. 167/2007, 3rd May,1 the HCIID currently has a wider structure because its responsibilities have been broadened in order to include inter-religious dialogue.
The CERD is now chaired by the HCIID. It forms part of the agency charged with the defence and protection of immigrants and ethnic minorities. Created before the Directive – by Law 134/99 and set up in 2000 - the CERD is still a body empowered to promote equal treatment on the grounds of race or ethnic origin. Some powers are shared between the HCIID and CERD. For example, providing assistance to victims of discrimination in pursuing their complaints about discrimination a responsibility of the HCIID. Conducting independent surveys related to discrimination, publishing independent reports and making recommendations regarding issues of discrimination are the responsibility of the CERD.
To initiate the procedure required to apply fines, anyone can report a case of racial discrimination to the member of the Government responsible for equality and ethnic minorities to the HCIID, to CERD, or to the general inspectorate relevant to the matter. Moreover, any public body aware of a racial discrimination case has a duty to inform CERD (Article 9. Law n. 18/2004).
1 http://www.acidi.gov.pt/docs/ACIDI/Lei_organica_ACIDI.pdf (31.3.2009).
The CERD recommends that a complaint should be accompanied by the following: the name of the person lodging the complaint; a report of the facts including the identification of the alleged offender; eye-witnesses and a list of injuries (both emotional and physical) suffered by the person making the complaint.
It is the responsibility of CERD to monitor the enforcement of legislation regarding racial discrimination. It also has a duty to maintain a register of discriminatory behaviours and the sanctions applied. It also has the power to reveal publicly discriminatory occurrences. However, the decision to impose a fine or other sanctions is attributed to the High Commissioner.
The CERD plays the role of a consultative body thus forming an opinion regarding the general inspectorate's final report. Both the HCIID and CERD have no powers to investigate or lead an audit since these powers are exclusively attributed to general inspectorates. The CERD may only launch a process after having receiving complaints or reports of racial discrimination.
Regarding labour issues it should be noted that since 2006 there is an alternative dispute resolution process for cases concerning a contract of employment, except for matters relating to accidents and inalienable rights. This process was conceived to resolve disputes between workers and employers without the court intervention, but with the aid of a specially trained and certified labour mediator. It is called the system for labour mediation (SLM) and appeared after a protocol involving the Ministry of Justice and several confederations of employers and the two principal trade unions.
Since the beginning of the operation of the SLM on 19.12.2006, more than 80 entities have signed the form of mediation, including professional associations, employers and other unions of national relevance.
The SLM has the power to mediate disputes arising under the employment contracts such as those relating to the termination of a contract, promotions and disciplinary procedures. This means that some issues related to racial or gender-based discrimination in employment and work can also be resolved through mediation
The employer and the worker who have a dispute may voluntarily and by their joint decision, submit the dispute to mediation. Also the judge may, in accordance with Article 279-A of the Code of Civil Procedure, request such mediation, unless either party expressly opposes such a referral.
The use of the SML costs €50 for each party, regardless of the number of mediation sessions. However, the fee is waived when legal aid has been granted to one or more parties. This amount is far less (at least a third) than the amount due in judicial procedures.
Mediation work has a time limit of 3 months (a judicial process would last at least 8 months on average) to obtain an agreement. However, the parties, in agreement with the mediator may extend the duration of the mediation if they wish. On average, a process in SLM has a duration of 28 days. At present the SML functions throughout Portugal’s mainland.
Legal aid
According to Law 24/2004 (Article 8-A), people lacking financial means are entitled to free legal representation in court as well as legal advice. The criteria for determining who is eligible is based on the assessment of an individual’s income. NGOs that combat racism and promote non- discrimination on the grounds of race or ethnicity, may also provide legal assistiance. These NGOs can legitimately engage (either on behalf of or in support of the complainant) in judicial and administrative procedures (Article 5. Law n. 18/2004). NGOs are also represented by the CERD, and this enables them to express their views in investigation procedures. However, NGOs do not participate in these investigations. NGOs play an important role as awareness raisers among minorities. Information about minority rights and support for the victims plays a major part in ensuring the effectiveness of legislation addressing racial or ethnic discrimination. The list of NGOs can be seen on the web site. Since 2005, the High Commission for Immigration and Intercultural Dialogue (HCIID) has made an agreement with the Portuguese NGO Association for the Support of Victims of Crimes (ASVC).Within this NGO a special unit has been created aimed at giving support to immigrants and victims of racial or ethnic discrimination. Such support takes the following forms: legal aid, psychological assistance and emotional support. From May 2006 to April 2007, 232 cases were treated by ASVC. The most frequent cases involve domestic violence, exploitation at work, threats and insults.In general, legal advice is well provided by NGOs but very few of them offer legal representation in court.
Forms of satisfaction available to a vindicated party
In general terms, financial compensation can be awarded in non-discrimination proceedings. Regarding the compensation in labour discrimination cases, an employee or job applicant who is the victim of a discriminatory act is entitled to receive compensation (Article 28 of the Labour Code (LC)).
Adequacy of compensation
The amount of compensation is usually very low. It was only possible to identify two cases of compensation for non-physical damages. In both cases, the amount paid to the plaintiff/appellant did not exceed 2,800 Euros, a relatively small sum of money.
Rules relating to the payment of legal costs
The successful party may recover the amounts paid within the proceedings. Legal procedures in discrimination cases are not covered by special rules regarding financial risk.This means that court fees and fees of the attorney are paid by the plaintiffs, shared with the State or paid by the State. In that case, the fee depends on the amount of the plaintiffs' income.
Rules on burden of proof
The shift of the burden of proof is now part of the Portuguese legal system, with specific regulations regarding the Labour Code. When civil compensation is at stake (in other words, when the victim is suing the alleged perpetrator of a discriminatory act for damages) the burden of the proof shifts to said perpetrator, who now has to prove that he/she had no discriminatory intention.
