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The Portuguese judicial network - Comparative perspective

 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.

 

Legislation:

Constitution of the Portuguese Republic

Civil Procedural Code

Law on the Organization and Functioning of the Judicial Courts, Law 3/99, of 13 January[5]

Law which regulates the Peace Courts, Law 78/2001, of 13 July.

 

Sources and Bibliography:

Gouveia, Mariana (2003), The Judicial Network in Portugal, Rencontres Européenes de Procedures, Gabinete de Política Legislativa e Planeamento, Paris, 4 April 2003 (not published).

Instituto di Ricerca sui Sistemi Giudiziari (2000), European Data Base on Judicial Systems, Working Papers IRSIG-CNR, European Research Network on Judicial Systems, Edição Científica Lo Scarabeo, Bolonha

Gabinete de Política Legislativa e Planeamento (Legal Policy and Planning Office) of the Ministry of Justice (2001, 2002), Justice Statistics, Gabinete de Política Legislativa e Planeamento, Lisboa.

 

Links:

www.dgpj.mj.pt

www.dgsj.pt

http://www4.worldbank.org/legal/database/justice/

http://www.simons-law.com/

http://www.eumap.org/reports

 



[1] The Portuguese entity which, empowered by the National Statistics Institute, is responsible for the collecting, treatment, analysis and dissemination of statistical data in the justice sphere.

[2] In order to better visualize each instance structure, in “Justice Statistics 2001” it is presented a diagram related to the judicial courts.

[3] This last was brought about by the reform of the civil enforcement action implemented in 2004.

[4] In the site of the Directorate-General for Justice Administration, of the Ministry of Justice – www.dgsj.pt, one may find the jurisdiction of each county court.

[5] Amended by the Law 101/99, of 26 July and by the Decree-Laws n. 323/2001, of 17 December and 38/2003, of 8 March.

Última Modificação: 02/05/2008 04:01

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