Court procedurei Overview of court procedure
Both civil and criminal proceedings include different stages. Generally, proceedings are initiated by the parties submitting pleadings, followed by a stage in which evidence is provided. The Civil Procedure Code establishes that all witnesses must be indicated in the claim at the time it is submitted. Subsequently, the trial takes place and the court issues its decision. Finally, provided that specific conditions are met, the parties can appeal the judgment.ii Procedures and time frames
There are two kinds of civil proceedings: declarative and enforcement. Through the former, the court's decision has res judicata effect. According to the Civil Procedure Code currently in force, the court decides on issues raised by the parties. The court may only take decisions on facts that were not raised by the parties if those facts are instrumental, complementary or noticeable. The court can only convict a defendant to the extent required by a claimant.
Enforcement proceedings may serve three purposes: the payment of an amount; the delivery of a specific object; or forcing the counterparty to carry out a certain action.
Said enforcement proceedings are filed based on an enforcement title that can be a previous court decision or certain documents established at law (for instance, some contracts, mortgages or deeds provided that the documents are signed before a notary public6 or certified by the same, and also cheques).
Usually it takes one to three years for a final court decision to be issued in ordinary declaratory proceedings, while enforcement proceedings tend to take from one to two years.
To avoid damage resulting from a delay in court decisions and to ensure the effectiveness of a final decision, claimants may request that the court issues adequate preliminary injunctions, which are urgent proceedings that can take from three to six months.
The above-mentioned time frames are indicative, as proceedings may be longer or shorter depending on the workload of the court before which the claim is filed and the particular circumstances of the case, as well as the arguments put forward.
Since 2014, it has been possible to launch pre-enforcement extrajudicial proceedings7 that allow the claimant to verify whether the defendant has any attachable assets before filing a claim.
There are currently under approval substantial amendments to the Civil Procedure Code (Draft Law No. 92/XIV). These amendments represent a clear response to the decrease in the courts' activity during the covid-19 pandemic as it aims to speed up proceedings, eliminate useless acts and non-essential interventions and clarify some of the legal solutions that represent the main basis of many of the appeals submitted by the parties to the higher courts. In particular, it focuses on:
- speeding up the system of expert evidence;
- limiting the holding of preliminary hearings;
- rationalising the scheduling of conciliation attempts;
- limiting the number of witnesses;
- expanding the number of cases in which written testimony is allowed;
- oral sentences; and
- speeding up the analysis of appeals.
Unlike civil proceedings, where the parties play a major role (although courts play an increasingly important role under the new Civil Procedure Code), in criminal proceedings the court has total control of the case and the duty to seek the truth. In this respect, the court may order the execution of any proceedings required to uncover the truth. Generally, ordinary criminal proceedings in Portugal take almost two years, but in specific cases, such as white-collar crimes, proceedings tend to take longer. Once again, the duration of the proceedings provided here is also merely indicative.iii Class actions
Class actions are allowed under Portuguese law using a specific procedure to deal with groups of related claims. This is based on the Portuguese Constitution and on specific regulations that grant all citizens, individually or through relevant organisations, the right to initiate class actions, within the terms established therein. It includes the rights of injured parties to request compensation to:
- promote the prevention, termination or judicial persecution of infringements against public health, consumer rights, quality of life and the preservation of the environment and cultural heritage; and
- guarantee the defence of state property, the property of the autonomous regions or of the local authorities (e.g., municipalities).
Class or group proceedings can be brought by individuals, associations and foundations created for the defence of relevant interests (regardless of their direct interest in a case), and local authorities regarding the interests of their residents, within their respective areas.
Although previously they were not very common in Portugal, the number of class actions filed by retail investors, or associations on behalf of retail investors, for the protection of the investors' homogeneous individual or collective interests in financial instruments, and popular actions filed by the Association for the Defence of Consumers with the purpose of ensuring consumer safety and protection, has increased significantly in the past few years.iv Representation in proceedings
In civil proceedings, parties must be represented by a lawyer whenever the value at stake exceeds €5,000, or when the proceedings are taking place before the higher courts.
In criminal proceedings, individuals considered formal suspects must be assisted and represented by a lawyer at several stages. Therefore, the assistance of lawyers is mandatory, among other matters, during interrogation, trial and appeal. As regards the representation of victims, specific acts must also be carried out together with the assistance of lawyers, such as filing personal claims or appeals. Conversely, witnesses may also be assisted by lawyers, but only to ensure that they know their rights.v Service out of the jurisdiction
Pursuant to the Civil Procedure Code, when a defendant's domicile is located outside the Portuguese jurisdiction, the initial summons or other notices requesting attendance to court will be served by post, by means of a registered letter with acknowledgement of receipt, unless applicable international treaties or conventions provide otherwise.
Other notices will be served to the lawyer appointed by the party. Service of judicial and extrajudicial documents in civil and commercial matters within the European Union is governed by Council Regulation No. 1393/2007 of 13 November,8 in which the particular formalities are set out, especially concerning the obligation to serve notice through the public authorities of the addressed state and to comply with specific rules of the relevant jurisdiction.
In criminal proceedings, notices for parties whose domicile is outside the Portuguese jurisdiction will be served according to the rules set out in international treaties and conventions. Portugal is a party to the Convention on Mutual Assistance in Criminal Matters established between Member States of the European Union of 29 May 2000. Pursuant to this Convention, as a general rule, each Member State sends procedural documents directly to the persons who are in the territory of another Member State, by post.9 In certain cases, however (e.g., if the procedural law of the state requires proof of service of the document on the addressee other than the proof that an ordinary letter can provide), the documents will be sent through the competent authorities of the requested Member State. Portugal is also a party to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. Pursuant to this Convention, documents will be served by means of letters rogatory sent to the competent entities of the state concerned.vi Enforcement of foreign judgments
Within the EU, Council Regulation No. 1215/2012, 12 December 2012 sets out the conditions under which a judgment (concerning civil and commercial matters) issued in a Member State can be enforceable in another Member State.
Therefore, pursuant to this Regulation, a judgment issued in a Member State and enforceable in that Member State may be enforceable in Portugal when, upon filing of a judicial application by the interested party, the court has recognised the enforceability of the judgment. The application of enforceability is filed before the competent superior court.
Without prejudice to the international conventions and treaties in force (for instance, the Lugano Convention), under Portuguese law, it is generally possible to enforce foreign civil judicial judgments upon a prior confirmation procedure before a Portuguese court. This confirmation will be granted whenever:
- there are no well-grounded doubts concerning either the authenticity of the submitted documents or the fairness of the decision;
- the decision is final according to the law of the country where the judgment was rendered;
- the object of the decision does not fall within the exclusive international jurisdiction of Portuguese courts and the jurisdiction of the foreign court has not been determined fraudulently;
- there are no other pending proceedings between the same parties, based on the same facts and having the same purpose, and no ruling on the same case has been issued by a Portuguese court;
- the defendant was duly notified of all the proceedings according to the law of the country where the judgment was rendered;
- the foreign court proceedings complied with the procedural law requirements and each party received an adequate opportunity to present their case fairly; and
- the acknowledgement of the decision is not patently incompatible with the public policy of the state.
Portuguese courts can provide assistance to foreign courts when required by means of letters rogatory, unless the execution of the requested proceedings violates Portuguese public policy, the letter rogatory is not duly legalised, the execution of the requested proceedings compromises national sovereignty or security, or the execution of the requested proceedings leads to the execution of a foreign court decision subject to confirmation by the Portuguese courts.viii Access to court files
The Civil Procedure Code, as a general rule, provides that court files may be accessed by the parties, lawyers or any person with a relevant interest in the proceedings; however, the examination of court records is more restricted when the disclosure of information may cause damage to a person's dignity or privacy, is contrary to public values (e.g., adoption or divorce proceedings) or may harm the effectiveness of the decision to be issued by the court, such as, for instance, in interim application proceedings. According to a recent amendment to the Civil Procedure Code, access to a case file may be restricted in compliance with the General Data Protection Regulation if the personal data derived from the proceedings is not relevant for the subject matter of the dispute.
In addition, the Criminal Procedure Code, as a general rule, provides that parties and lawyers are allowed to access the court records. Nevertheless, the examination of court records at the investigation stage always requires the public prosecutor's or judge's authorisation. Third parties who have relevant interests in the proceedings may also request authorisation to access court files, unless the proceedings are confidential. This occurs whenever the public prosecutor or judge forbids the parties and their respective lawyers from accessing such records during the investigation stage, since their disclosure could interfere with the investigation or cause damage to any of the parties.ix Litigation funding
Third-party litigation funding is not regulated or prohibited by Portuguese law.
Due to the increase in the number of private consumer protection associations, as mentioned above, there are now more litigation cases – especially class actions – related to consumer protection rights, in which third-party financing is starting to be used more. Therefore, it should not be ruled out that the increased use of third-party funding in judicial actions will lead to the approval of specific regulation on this matter.