In Portugal, proceedings will be recorded if one of the parties makes an application to this effect at the preliminary hearing or, if there is no such hearing, within 15 days of service of the pre-trial order. Hearings are also recorded if the court decides this is necessary and in cases where recording is required by law.
Hearings will thus be recorded on application by any party. In such cases failure by the court to record the hearings will render the proceedings null and void.
The applicant is not required to state any grounds for its application to have the hearings recorded. Such applications are usually made in order to ensure that matters of fact which are disputed can subsequently be reconsidered.
A collateral effect of the granting of such applications is that the hearing will be presided over by one judge sitting alone, even if trial by a collective court has been applied for.
The recording of hearings is a sufficient safeguard against incorrect decisions on matters of fact, and makes the clarification of factual errors possible by way of reconsideration. There is thus no need for the duplication of guarantees, which is beneficial in terms of both cost and procedural efficiency.
Any party can apply for the recording of evidence at the beginning of the hearing in case a witness fails to attend, if the absence of the witness is not sufficient reason to adjourn the hearing.
In cases where both parties have requested that the case be tried by a collective court, if such a trial is not possible and if either party abandons its application for the case to be tried by a collective court, then either party may apply to have the hearing recorded as soon as it commences.
If counsel for any of the parties fails to attend the hearing and the hearing is not adjourned, the evidence of the witnesses present will be recorded. Once counsel has heard the recorded evidence, he or she may apply for the witness to be re-examined, unless (i) his or her failure to attend the hearing was unjustified, or (ii) when the date of the hearing was arranged, he or she failed to inform the court promptly of any circumstances which were grounds for the adjournment of the hearing and which prevented him or her from being present. In such cases recording is obligatory in order to allow the missing lawyer to consider the witness's evidence.
Hearings can also be recorded when the court decides this is necessary - that is, where the complexity of the facts, the large number of witnesses or the likelihood that the hearing will continue over various sessions makes this advisable. This is a discretionary power of the court for which it need state no grounds and which cannot be appealed.
However, unlike cases in which one party applies to have the proceedings recorded, if the court decides that the proceedings must be recorded then the collective court will not be replaced by one judge sitting alone.
Once the hearing has been recorded, there is nothing to prevent the parties, including the party which applied to have the proceedings recorded, from challenging the court's decision on points of fact, as the right to appeal against the court's decision on the facts is not affected by the appellant's application to have the proceedings recorded.
In addition to cases in which application is made to have witness evidence recorded, such evidence must also be recorded when given prior to the trial or pursuant to a letter of request.
In interlocutory injunction proceedings the evidence will be recorded if there an ordinary right of appeal against the decision and one of the parties so applies. Further, witness evidence given prior to the trial or pursuant to a letter of request will be recorded in any interlocutory injunction proceedings at which the defendant is not heard, either because the law so provides (eg, arrest) or because the judge so decides.
The proceedings are usually recorded by a sound system, without prejudice to the use of audiovisual or similar equipment available to the court. When a hearing is audio or video-recorded, the time at which the recording of each piece of witness evidence, information or clarification must be stated in the transcript. This statement will be relevant for the purposes of any appeal pleadings.
Sound recordings are the preferred form for the documentation of evidence, which is generally effected using equipment installed in the court. Two copies of the recording are made, which must clearly identify the party who is giving evidence. The judge should accordingly take care when identifying each deponent.
Counsel or the parties may request a full copy of the recordings once the trial is over.
An important consequence of the recording of hearings is that decisions on the facts can be reviewed by the court of appeal.
The court of appeal reconsiders the evidence on which that part of the judgment which has been appealed against is based, in light of the facts pleaded by the appellant and respondent, without prejudice to taking other evidence upon which the decision is based into consideration on its own initiative.
A party which intends to challenge a first instance decision on the facts must state (i) which specific matters of fact it believes have been incorrectly decided, and (ii) which specific evidence in the proceedings, transcript or recording should be re-examined. Failure to do so will cause the appeal to be rejected.
If a recording has been made, the appellant must identify the evidence on which its appeal is based, by reference to the matters recorded in the transcript. The respondent should also indicate the recorded witness evidence which rebuts the conclusions drawn by the appellant. The court of appeal then listens to or views the witness evidence indicated by the parties, unless the presiding judge considers that the recording must be transcribed, which is effected by third-party entities engaged by the court.
Where an appeal involves the consideration of recorded evidence, the period for the filing of pleadings will be extended by 10 days.
The option to record witness evidence presented to a court of first instance is necessary in order to protect the rights of citizens who have recourse to the judicial process, as it permits reconsideration of the facts by a court of appeal. It also speeds up court proceedings, which leaves assistant judges free to try other cases.
For further information on this topic please contact Miguel Esperança Pina at Goncalves Pereira, Castelo Branco e Associados by telephone (+351 21 355 3800) or by fax (+351 21 353 2362) or by email ([email protected])..