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 (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.
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). 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 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.
Constitutional norms regarding the judicial network
Administrative jurisdiction – brief reference
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
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). This law has been regulated by the Decree-Law n. 186-B/99, of 31 May. 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.
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.
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.
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.
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.