This chapter explores the design and delivery of a continuum of justice services in Portugal, emphasising a people-centred approach to legal and justice services. It identifies the variety of legal needs across the population and stresses the importance of providing appropriate, accessible, and proportionate services tailored to these diverse needs. Highlighting the integration of both formal judicial processes and alternative dispute resolution mechanisms, the chapter underscores the significance of flexibility in service delivery to ensure cost-effectiveness and accessibility. Additionally, the chapter details the existing legal infrastructure, including the spectrum of dispute resolution mechanisms from justices of the peace to complex judicial processes, and evaluates their geographical distribution and accessibility. It argues for the need to continue expanding and adapting these services to meet the evolving legal challenges people face, ensuring that all segments of the population can access the justice system effectively and efficiently.
Modernisation of the Justice Sector in Portugal
Abstract
Legal needs findings globally and in Portugal have confirmed that different people in different circumstances facing different legal problems need different solutions to most appropriately address their legal problems (see Chapter 3). Therefore, jurisdictions require a continuum of legal services which, if they are to be both effective and efficient, should have a scope and range that is linked to the assessment of legal need, the location of that need, the prioritisation of the needs of particular vulnerable groups, and knowledge about what strategies work best in which circumstances. One-size-fits-all solutions are, in general, neither appropriate nor cost-effective.
Indeed, when resources available for justice services are constrained, there is growing pressure to ensure cost-effectiveness of services to provide value for money. A people-centred approach that seeks to provide targeted services that are accessible, proportionate and appropriate for the circumstances, is likely to generate best value for public resources. Such services targeted to meet the specific needs of people are most likely to avoid the waste associated with overservicing (i.e. by providing expensive court/judicial services to solve problems that do not require that level of decision-making nor justify the high cost) and underservicing (i.e. by providing some services to people but not a sufficient level of service to deliver the desired outcome). Therefore, a people-centred and cost-effective justice system implies the availability of a differentiating framework of effective dispute resolution options.
Different options could be both more effective, more suitable, and more cost-effective for the state and for the individual, given the nature of the individual and the nature of their legal problem. A people-centred justice system provides a range of justice and related services over a continuum from the most local and informal through to formal judicial processes. These should be made sufficiently approximate and accessible for those experiencing legal need to utilise the most appropriate, timely, and cost-effective solution to assist them in resolving their problem (OECD, 2021[1]).
The 2023 Portugal LNS highlights that sources of advice and pathways to dispute resolution other than formal legal processes were more likely to be used by respondents. For example, as noted, when problems were resolved by third-party decision makers, government or municipal authorities (24.5%) and third-party dispute resolution mechanisms (14%) were the most common (compared to 8.9% by courts).
As such, it is important to continue Portugal’s efforts to put in place a continuum of legal and justice services that can provide proportionate and effective responses to legal needs. There is not one type of dispute resolution that is better than the others for addressing all problems in all circumstances. Courts and other institutionalised dispute resolution mechanisms are an essential component of this continuum and are the most appropriate path for some legal problems, particularly the more serious. However, for many other legal and justice problems and circumstances, other options could be more effective, more affordable and more appropriate. Adopting a people-centred approach to the planning, funding and delivery of legal services is the way to optimise this matching of appropriate and cost-effective services to need.
A model for a people-centred approach to planning legal and justice services was outlined in Chapter 2. After the identification of legal needs, it includes steps to identify ‘what works’ to best address the particular need; tailor services to suit the circumstances and the need; deliver the services when, where and how they are needed; and monitor and evaluate the delivery and effectiveness of the services.
The identification of what works is a challenge for all jurisdictions. There is room to develop the research and analysis in this area for the justice sector, which is discussed further in Section 4.2. The remaining steps will inform the following discussion in relation to particular services.
In Portugal, there is currently a plurality of channels to deliver legal information and dispute resolution services, including courts and alternative dispute resolution mechanisms. The diagnosis phase identified various legal services based on their relevance according both to the desk research carried out and to interviews conducted during the mission to Portugal. The mapping considers the purpose and context of selected justice services, their geographical distribution, and accessibility (see Figure 4.1).
Source: Author’s own design.
At the top of the range of dispute resolution mechanisms are the courts. They are the most complex and formal instance of dispute resolution. They are also intended (as in most other jurisdictions) to be the last resort when other dispute resolution mechanisms are inaccessible (due to lack of knowledge or availability) or have failed to resolve the conflict. The Portuguese judicial system contains a plurality of courts with different material and territorial competences.
The Portuguese constitution makes express reference to the following courts (see Figure 4.2):
The Constitutional Court (competent in matters of legal-constitutional nature).
The Supreme Court of Justice and the courts of first and second instance.
The Supreme Administrative Court and the other administrative and tax courts.
The Audit Court (competent for the verification of public expenses’ legality).
The constitution also refers to the possibility of maritime courts, arbitration, and justice of the peace courts in article 209 (Government of Portugal, 1976[2]).
Source: Author’s own design.
Beyond traditional judicial dispute resolution mechanisms, the justice framework encompasses a variety of methods for addressing conflicts. These methods may serve as either complements or alternatives to conventional court proceedings, contingent upon the specifics of the dispute. This discussion highlights several noteworthy options:
Justices of the peace represent a viable alternative for disputes where the ‘claim’s’ value does not surpass EUR 15 000, offering a streamlined process for certain legal issues.
Arbitration presents itself as either a mandatory route in specific contexts or a voluntary alternative for the resolution of numerous disputes.
Mediation, particularly public mediation, to promote amicable settlements.
Furthermore, this analysis identifies three principal avenues through which individuals may access legal services and justice:
The Public Prosecutor’s Office, which plays a pivotal role in the administration of justice;
The legal aid system, facilitating broader access to legal advice and representation, court and ADR services;
Non-governmental organisations (NGOs), which provide essential support and advocacy services, contributing to the overall accessibility of legal and justice systems.
In Portugal, judicial courts are common courts which deal with civil and criminal issues, with jurisdiction in all matters not allocated to other judicial bodies (Government of Portugal, 1976[2]). Judicial courts are organised in three instances. On the top of the pyramid is the Supreme Court (“Supremo Tribunal de Justiça”) with competence over all the territory as the highest instance and located in Lisbon. It is followed by five courts of appeal (“Tribunal da Relação”), based in Coimbra, Évora, Guimarães, Lisboa and Oporto. At the first instance level, the national territory is divided into 23 judicial counties1 (“comarcas”). Each judicial county comprises multiple municipalities and has a district court (“tribunal judicial de comarca”) which, in turn, is divided into several benches (“juízos”) located in different municipalities.
These different benches can either be of general jurisdiction, specialised jurisdiction, or proximity sections. The numbers and specialisation of benches vary in each judicial county. Among the possibilities of specialisation, the law provides for the following (Government of Portugal, 2013[3]):
Central civil benches (for actions with values exceeding EUR 50 000)
Central criminal benches (for cases of trial by three judges or by jury)
Local civil benches (for actions with values not exceeding EUR 50 000)
Local criminal benches (in cases of trial by a single judge)
Petty crime benches
Enforcement benches
Criminal investigation benches
Family and children’s benches
Labour benches
Commerce benches
The territorial jurisdiction of the central benches is wider than the geographical area of the municipality where they are located, corresponding to a grouping of municipalities within the judicial county. The local benches have territorial competence over one municipality or a smaller group of municipalities (see Figure 4.3).
At the first instance level, there are also wider competence-specialised courts, namely the intellectual property court, the competition, regulation and supervision court, the central court of criminal investigation, the maritime court, and the enforcement of criminal sentences courts (Government of Portugal, 2013[3]).
Source: Author’s own elaborations
Each judicial county has a different number of benches, with different levels of specialisation and different scopes of territorial competence. This can be seen in the following two examples of two very different judicial counties. The first is the Lisbon judicial county, which reflects the maximising specialisation of courts, and the second is the Bragança judicial county, an example of low-level specialisation (see Annex Lisbon Judicial County and Bragança Judicial County).
While improving, the judiciary in Portugal faces a range of challenges (OECD, 2020[4]). These include judicial capacity and performance, where judges tend to be responsible for both the adjudication and auxiliary tasks, which is likely to contribute to procedural delays. This was also related to the shortage of human resources allocated to the justice system, especially for non-judicial staff with over 1 000 vacancies in first instance courts (European Commission, 2022[5]). In fact, stakeholders, during fact-finding interviews, reported challenges that included limited autonomy of court presidents to make decisions on resource allocation, and differentiated capacities of courts across Portugal.
Portugal has been taking active steps, including in recent decades, to advance procedural simplification and respond to mass litigation, with a view to providing a simple, de-judicialised procedure for uncontested claims. For example, in 2008, the National Desk for Payment Order Procedures (“Balcão Nacional de Injunções” – BNI) was introduced as a general registry with national jurisdiction over payment order procedures. BNI only deals with uncontested money claims order procedures. Whenever there is a statement of defence, the payment order procedure is distributed to the competent judicial court. A lawyer is not needed to present a payment order request. This is only needed for filing an opposition to the payment order procedure or for the acts after its distribution to the court if the claim exceeds EUR 5 000.
Similarly, in 2013, a National Desk for Tenancy (“Balcão Nacional do Arrendamento” – BNA) was created, with national jurisdiction over the special procedure for evictions. As in the case of BNI, contested procedures are distributed to the competent judicial court. Within the scope of the special eviction procedure, the representation by a lawyer is only mandatory for the presentation of the opposition to the eviction petition and in the acts after the distribution to the court. The BNA was renamed Tenant and Landlord Counter (“Balcão do Arrendatário e do Senhorio” – BAS) in 2023 with added competences.
Source: Government of Portugal (2008[6]), Ordinance no. 220-A/2008 of 4 March, amended by Ordinance no. 267/2018 of 20 September, https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=2939&tabela=leis&so_miolo=; Government of Portugal (2023[7]), Decree-Law no. 1/2013, of 7 January, amended by Law no. 56/2023, of 6 October, https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=2574&tabela=leis&so_miolo=. .
The various initiatives to simplify procedures have had an impact on the statistical indicators of the courts, reflecting the increased use of this type of mechanism and the consequent reduction in the duration of this type of declaratory action. The interviews conducted during fieldwork revealed that data collection was almost primarily devoted to core court-performance indicators (e.g. cases in and cases out, number of decisions issued), across the justice sector. There is room to introduce a more people-centred perspective in data collection to look at matters such as the demographic characteristics of justice users. There are already some initiatives in Portugal that could be a source of inspiration looking ahead. For example, in 2022 the Leiria judicial court ran a short questionnaire to assess justice users’ satisfaction regarding the court’s conditions2. Other courts in Portugal, such as the judicial court of the district of Braga and the judicial court of the Azores have adopted similar initiatives (Tribunal Judicial de Braga, 2018[8]).
Proximity sections of judicial courts (see Box 4.2), in turn, are not courts in the traditional sense, but facilities that provide a range of local services such as information and referral services. They do not have a judge appointed. Currently, there are 41 proximity sections of judicial courts in Portugal (Government of Portugal, 2014[9]).
A proximity section of a judicial court is not a court in the traditional sense, but a facility that on a day-to-day basis has a clerk present in the office providing a range of local services such as information services. There is no permanent judge or prosecutor present. The facility does have a court room, and appropriate ancillary facilities such that a court from the regional capital could sit in a remote location given certain circumstances (e.g. parties to the proceedings, issues involved).
The role of the proximity section includes:
Providing information on court cases.
Being a location for documents to be submitted relative to cases before the courts in other areas.
Being a point where people could request a copy of the statement of criminal record, which people can do online as well.
Being a point for video conferencing or the giving of video evidence (e.g. witnesses in a case occurring in another area).
Being a courtroom that can hold trials connected to local people. It is up to the judge about whether a trial could be held at a proximity section of a judicial court.
Source: Government of Portugal (2013[3]), Judicial System Organization Law, https://diariodarepublica.pt/dr/legislacao-consolidada/lei/2013-34581275.
Proximity sections have strong potential for improving access to justice through a people-centred approach. While the increased reliance upon online channels for providing legal advice and assistance should reduce the geographical barriers of accessibility over time, for many groups and in many circumstances geography remains an important factor in whether people can reach the services they need to address their legal problems.
In this context, there appears to be significant potential for the proximity sections of judicial courts in Portugal. They can have an important role in improving access to justice, notably in rural and regional areas by providing information, assistance and referral roles. There is an unrecognised and unmet need for services that includes providing basic information about the law or the justice system in Portugal; helping people to apply for legal aid, social security or applications to courts; or referring them on to other services that can best meet their needs.
While it is commendable that Portugal has created and entitled proximity sections of judicial courts with the roles they have, challenges and areas for enhancement to assist in the realisation of their potential were identified during the project fieldwork. For example, during fact-finding interviews, it was reported that over the month of May 2022 in the proximity section of the judicial court visited, only 28 people had approached the service by phone and 86 people in person. Further, it was reported that the clerks in proximity sections were considered not fully occupied by local work, and thus were allocated to undertake work remotely for the other benches of said judicial court. Moreover, proximity sections of judicial courts appeared to have limited outreach programmes to engage local community groups. This includes limited intentional activity to ensure the relevant public is aware of their available services.
Moreover, data collection by proximity sections of judicial courts appears to be limited and to primarily relate to the numbers of people that approach the service. As such, there is scope to improve data collection to monitor the types of groups using the service, types of matters for which assistance was sought, or service outcomes. In this context, it would be important to explore possibilities to collect data or information in relation to the matters or reasons for which those people approach the proximity sections, and other relevant demographic characteristics of these users. This may require empowering the benches to collect data, with some form of central co-ordination.
Additionally, a key role for clerks in proximity sections on a daily basis could be the referral of people to other services appropriate for their particular legal needs. It appears that currently the referrals are limited to the formal judicial system (e.g. referrals to public prosecutors and the right courts to go to depending on the legal issue; also, to legal aid). As such, there is an untapped opportunity for Portugal to improve referral mechanisms to integrate the whole range of justice services in a holistic manner by recognising the complexity and clustering of people’s legal problems.
Fact-finding interviews have suggested that the utilisation of proximity sections of judicial courts for hearings presents an opportunity for further development. Recent reviews have highlighted that the frequency of local hearings in certain proximity sections of judicial courts is underexplored, indicating a potential area for strategic enhancement. The current process for determining hearing locations, at the discretion of judges at the district court level, underscores the importance of adapting to further improve the efficacy of trials in proximity sections (Government of Portugal, 2019[10]). This presents an opportunity to reassess how decisions are made regarding hearing venues, ensuring they align more closely with the needs of local communities and the parties involved. To fully realise the proximity feature inherent in proximity sections of judicial courts, convening a dialogue among legal professionals could prove valuable. By embracing this collaborative approach, Portugal could unlock the full potential of proximity sections, thereby enhancing the justice system’s responsiveness and accessibility.
The administrative and tax courts are sovereign bodies with competence to provide justice on behalf of the people in disputes arising from administrative and fiscal legal relations (Government of Portugal, 2002[11]). They are divided into three instances. At the highest level, there is the Supreme Administrative Court, located in Lisbon, with jurisdiction over the entire national territory. At an intermediate level there are the two central administrative courts: the northern central administrative court and the southern central administrative court. In 2023, a third appellate court, the Centre’s central administrative court, was created but is not yet operational. Finally, there are 17 first instance courts, the administrative circuit courts and tax courts. With the exception of Lisbon, these courts operate in an aggregate manner, assuming the designation of administrative and tax courts (Government of Portugal, 2003[12]) (Government of Portugal, 2002[11]).
The new organic structure of the administrative and tax courts is the result of the reform of administrative litigation passed in 2002. Subsequently, there were occasional amendments that called for, first, some changes in the existing courts and then the specialisation of some of them.
Not unlike in many OECD countries, improving efficiency and effectiveness of administrative and tax jurisdiction is one of the main current reform priorities for Portugal. Indeed, over the last 40 years, one of the most important legal reforms in democratic jurisdictions has been to administrative law processes. While processes differ from country to country, with the requirement for creation of merits’ tribunals and the establishment of ombudsperson and other complaint mechanisms, citizens have gained increasing rights and affordable pathways to review or appeal government decision-making that affects their lives. The effective and efficient operation of administrative law systems is, therefore, an important element of justice systems focused on addressing the legal needs of its people.
Fact-finding meetings with stakeholders helped identify challenges, particularly with timeliness and delay with some matters before the administrative and tax court. Some stakeholders mentioned this as an area for urgent reform in Portugal. Some of the reported reasons which seemed to contribute to long delays in administrative and tax courts included the substantial volume of pending cases since these courts were created in 2004, limited human resources (e.g. in terms of number, specialisation in tax and administrative law) and upskilling programmes, narrow range of performance metrics (e.g. based on numbers of decisions), and insufficient mechanisms that allow the monitoring of internal processes in courts on a frequent basis. In addition, limited financial autonomy and flexibility for the special Council for Administrative and Tax Courts, as opposed to the common courts, was pointed to as a hindrance. The administrative and financial autonomy of the Supreme Council of the Administrative and Tax Courts and the definition of the organisation of its services was only enshrined in legislation with the publication of Decree-Law no. 31/2023, and implementation is still ongoing.
A related but slightly different issue was limited capacity to manage the courts as a single entity. This would allow for more effective planning and delivery of services, rather than the courts being part of a complicated mix of different rules for clerks, judges, and other stakeholders. It was suggested that the Supreme Council of the Administrative and Tax Courts could have responsibility for running their operations within their own regions, covering everything from cleaning to judicial decision-making. Finally, complexity of procedures and legislation was identified as another important barrier.
Since 2019, procedural changes and amendments to the organisation of courts have been introduced with the aim of reducing the lengthy response time of administrative and tax courts. One of the first measures was the creation of teams of judges for the recovery of cases pending final decision in the administrative and tax courts filed until 31 December 2012, even if they had been submitted to probation. Along with the creation of these teams, a set of incentives was established for the rapid closure of cases. Procedural costs were exempted for the withdrawal of applications in pending administrative and fiscal cases until the end of 2019. Also, the tax authority should revoke or review all tax or administrative acts that are the subject of a pending case, when there is or has been a change in the administrative understanding in favour of the taxpayer, as well as when case law on the subject has been repeatedly issued in favour of the taxpayer. Moreover, taxpayers can submit their opposition claims to arbitration courts on tax matters, with exemption from the payment of procedural costs, in relation to pending tax proceedings which were filed with the tax courts prior to 31 December 2016 (Government of Portugal, 2018[13]).
Procedural changes included the mandatory electronic handling of administrative and fiscal proceedings, the amendment of the appeals system in tax proceedings and the reorganisation of the respective judicial registries (Government of Portugal, 2019[14]). Regarding the organisation of the courts, specialisation in the administrative and tax courts was established as a rationalisation and streamlining factor for their performance (Government of Portugal, 2019[15]). In particular, specialisation arose from the analysis of statistical and empirical data available. For instance, the analysis of justice data helped identify the high volume of cases in certain areas, leading to court specialisation in administrative and tax courts (Government of Portugal, 2019[15]). Some of the areas are tax enforcement and administrative offences appeals, social administrative and public procurement benches. In other cases, the analysis of justice data allowed aggregation of certain benches, with no specialisation. The current different levels of specialisation in Portugal are shown in detail in Annex E. “Specialisation in administrative and tax courts in Portugal”.
In 2021, a working group was created to assess the impact of implemented reforms and to analyse the current functioning model of administrative and tax courts. The working group proposed procedural and organisational solutions to optimise their performance in an approach geared towards modernisation, simplification and rationalisation, and to deepen the digital transformation project (Government of Portugal, 2021[16]). In September 2021, the working group presented the first interim report, recommending the adoption of legislative reforms aimed at streamlining procedural processes; implementation of management tools of the administrative and fiscal justice system; acceleration of the digital transformation process; and development of human resources of administrative and tax courts (Government of Portugal, 2021[17]). For example, to respond to the massification of some types of litigation, the working group recommended the adoption of a simplified procedural regime for the strongly deformalised and dematerialised processing of small administrative and fiscal claims (up to EUR 5 000), and the simplification of procedural processing in claims of a value not exceeding half the competence of the central administrative courts (Government of Portugal, 2021[17]; Government of Portugal, 2022[18]). To respond to the increasing technical complexity of litigation in areas that depart from the legal field (e.g. accounting, civil engineering), the working group recommended the recruitment of specialists to support administrative and tax courts (Government of Portugal, 2021[17]).
The second progress report was presented in February 2022, providing for a new strategic axis aimed at optimising the functioning of the higher courts of administrative and fiscal jurisdiction as well as new strategic objectives and measures targeting those specific areas. Some of the measures proposed are the clarification of the material competence of the courts of specialised administrative competence and the creation of a simplified procedural regime applicable to administrative or tax cases with a value that does not exceed EUR 5 000. The report also proposed the redistribution of competences between the Supreme Administrative Court and the central administrative courts in appeals against decisions made by first instance courts and specialisation in the second instance, given the growing level of complexity of litigation (Government of Portugal, 2022[18]).
In 2022, a new working group was formed to continue the activities with the aim of preparing an Action Plan for Administrative and Fiscal Justice including concrete measures and targets (Government of Portugal, 2022[19]). The strategic plan is structured around five key objectives: improvement of judicial management; optimisation of performance in the higher courts and implementation of technical advice for judges of the administrative and tax courts; simplification and streamlining of procedures; digital transformation; and reinforcement of human resources.
In addition, the Minister of Justice has announced a new legislative package aimed at reforming administrative justice, focusing on enhancing the capabilities of the Supreme Council of Administrative and Tax Courts. This reform aims to improve the efficiency, speed, and transparency of handling administrative and fiscal cases. It includes the specialisation of appellate courts and the formation of specialised, ad-hoc judicial teams by the Supreme Council for specific cases or to address case backlogs. Additionally, the reform introduces a mechanism to encourage case resolution through procedural agreements and implements a simplified procedure for cases valued below EUR 5 000 and of low complexity. This simplified procedure will be initially trialled in a pilot court, aiming to ensure that decisions are made within nine months and are easily understandable to the public (Ministry of Justice, 2023[20]).
In May 2023, Decree-Law No. 30/2023 established an exceptional incentive scheme for the termination of proceedings in administrative and tax courts through the partial refund of court fees already paid or the waiver of their payment. The provision also enshrined the High Council of Administrative and Tax Courts (CSTAF’s) administrative and financial autonomy, and defines the organisation of its services. In August 2023, Decree-Law No. 74-B/2023 created the central administrative court in Castelo Branco, specialised the central administrative courts, and provided for the possibility of increasing the number of judges when members of higher courts are appointed to positions in service commissions that do not imply a vacancy in their original post.
It should be noted that issues impacting the administrative and tax law jurisdiction are very complex and could not be covered within the scope of this report. Nevertheless, by taking a people-centred lens to the problem, there are several important insights for the reform of the administrative and tax court system. For example, simpler measures to have administrative decisions reviewed; requirements on governments to act within certain timeframes and to provide reasons for their decisions; and the creation of a range of ombuds-type positions have provided ordinary people with a range of tools to address many of the most important day-to-day legal problems. The introduction of such measures could provide valuable lessons to Portugal, including on enhancing rigorous data collection and improving awareness-raising about the courts among the relevant communities. In addition, Portugal could benefit from conducting a targeted study of administrative and tax law to gain further and better insight into the operation of the courts. Fact-finding interviews during the project’s fieldwork in one of the regional courts pointed to important insights on users of administrative and tax courts, satisfaction, the Administrative and Tax Courts Management Information System (SITAF) system, awareness, costs, and human resources.
People-focused variables are not collected systematically by the court. In terms of information about the parties to a dispute, only data regarding whether the parties are individuals or a company are collected. Stakeholder interviews suggested that searching individual case files appeared to be the primary source of information about the parties. Additionally, the court reported that they have formal collection of the incidence of certain legal matters in particular locations (e.g. reporting of anecdotal impressions that in some regions with a higher proportion of foreign residents, there is a higher number of real estate and real estate taxation matters). Importantly, most interviewees indicated interest in the benefits of being able to examine in real time who the users of the court were in demographical terms. As such, there is room for fostering data collection of people-centred variables to obtain more complete, reliable and insightful information for planning, delivering and monitoring of services.
In terms of outcomes of matters, only traditional ‘court performance’ data were collected (e.g. matters commenced and matters concluded) and the reasons matters were closed (e.g. user gave up, resolved by some other means, court decision made in favour/partly in favour/not in favour of plaintiff). There was no reported systematic surveying of users/parties in relation to their satisfaction with the outcome or the process that was undertaken. However, project interviews revealed the court was considering introducing a system similar to that used by some judicial courts (see Judicial courts).
Regarding the SITAF data system, stakeholders reported facing challenges in reliability. A key factor seems to be that some data items were mandatory to collect while many others were optional. Their observation was that if a data item was not mandatory, then there would be no incentive or reason for users to record the data. Discussions in fact-finding interviews informed that a new data platform called Magistratus was under development and was intended to improve judges’ experience. At the end of November 2023, Magistratus became judges’ main access point to the court system for both the common, and administrative and fiscal jurisdictions. The new platform includes most of the functionalities previously available in the preceding systems, Citius and SITAF, and new, more advanced ones, such as searching through artificial intelligence mechanisms and encrypted notes.
As for awareness, fieldwork interviews revealed that the only public communication on the work and pathways to the administrative and tax courts was through formal justice system channels. This generally assumes that users would find their services “through the website and other places”, as reported. Stakeholders, however, did refer to the role of the parish boards (local government) as a potential referral source. All in all, there is certainly scope to better communicate the pathways available.
Costs for applicants is another point of concern. The minimum court fee to lodge an objection to a tax execution is around EUR 306 for tax cases, and these have risen substantially for certain matter types. The filing fees and other costs could be a major barrier for people.
The fact-finding interviews indicated a significant shift towards digital processes in the lodging and filing of documents, which are now predominantly conducted online. However, face-to-face hearings continue to be the primary method for conducting hearings. The complexity of administrative and tax law cases, often involving the submission of extensive documentation, is perceived as a challenge for fully adopting online procedures. Accordingly, there is untapped potential to foster online dispute resolution (ODR) in this area. Hesitance over ODR may stem from the limited technological capabilities experienced during the COVID-19 pandemic, where basic digital tools seem to not having met the court’s expectations. Future enhancements in digital technology could lead to a reassessment of these attitudes and potentially greater adoption of ODR.
Finally, in terms of human resources, as with many other agencies visited, the availability and skills of staff was a concern, particularly in relation to introducing reforms. The aging of the staff, in particular, court clerks, was seen as a particular issue in view of the reported difficulties in replacing them given the national demographic profile in Portugal.
The Public Prosecutor’s Office, commonly recognised for its role in criminal prosecution, possesses a range of responsibilities that extend beyond this area. The scope of its powers is considerably wider, and its activities in other domains are also of significance. For example, it is responsible for representing workers and their families in defence of their social rights and for defending collective and diffuse interests in cases provided by the law. In order to expand the delivery of services to the community in online and accessible ways, the Prosecutor’s General Office has been developing two online service portals (see Box 4.3).
The Prosecutor’s General Office has been developing two online service portals in the past years.
The Portal for Denouncing Acts of Corruption and Fraud (“Portal de denúncias de atos de corrupção e frauds”) allows people to file complaints online directly to the prosecutor’s office. This provides an opportunity for people to report possible illegal actions that might be investigated, as opposed to formally commencing a legal action. The Digital Citizen Support (“Apoio Digital ao Cidadão” – ADC) aims to provide an area where citizens can obtain information on the work of the Public Prosecution Service and send electronic requests mainly on labour, civil and family law matters.
At the same time, there is scope to clarify the level of demand for these services and necessary funding in order to ensure their sustainability and cost-effectiveness. Likewise, there is a missing opportunity to clarify the extent of the overall co-ordination between a broader justice digital transformation and innovation policy, as well as the alignment of initiatives of individual institutions, such as courts and public prosecutors.
Source: Government of Portugal (2024[21]), Denúncia de actos de corrupção e fraudes, https://simp.pgr.pt/dciap/denuncias/index2.php; Government of Portugal (2020[22]), Relatório Síntese do Ministério Público de 2019, and https://www.ministeriopublico.pt/sites/default/files/documentos/pdf/relatorio-mp-2019_portal_0.pdf.
In the criminal field, the Public Prosecutor’s Office has also made efforts in recent years to offer a differentiated response to particularly vulnerable victims. In March 2019, the Ministry of Justice and the Prosecutor General’s Office signed protocols with the Association of Women Against Violence (AMCV), the Portuguese Association for Victim Support (APAV) and the Union of Women Alternative and Answer (UMAR) to stablish support offices for victims of gender-based violence (Gabinete de Apoio à Vítima – GAV) in the Departments of Investigation and Criminal Action (DIAP) of Braga, Aveiro, Coimbra, Lisbon West, Lisbon North and Faro. In 2023, two new support offices opened in south Lisbon and Porto-Este. In December 2023, another two new support offices were announced to open in 2024 – one in Leiria and one in Setúbal – as part of the commitment made, within the framework of the Criminal Policy Law 2023-2025, to create two new Victim Support Offices (GAVs) every year. These units consist of a victim support officer and a court clerk and are co-ordinated by a public prosecutor. Their main objective is to provide continuous assistance, information, support and personalised referrals to victims of domestic and gender-based violence.
Another innovation was the creation of the Specialised Integrated Sections for Domestic Violence (SEIVD) at the end of 2019. Set up on an experimental basis by the Supreme Council of the Public Prosecution Service, the SEIVDs are made up of National Action Units (NAP) and National Family and Children’s Units (NFC). This creates room to encourage greater articulation between the two legal systems. One of the most important new features of this specialised section is the existence of NFCs to follow the progress of criminal cases and provide relevant information from family and child courts; encourage the intervention of family and child courts; and promote appropriate measures to protect children involved (Government of Portugal, 2019[23]).
Affordable and accessible ADR services are an important component in any justice system that seeks to provide a range of different services to suit different people with different problems in different circumstances. For many people and for many legal problems, ADR services can provide parties with cheaper, quicker and more approximate decision-making to resolve disputes and to facilitate the way forward. The Portuguese constitution expressly recognises non-judicial means of conflict resolution (Government of Portugal, 1976[2]), and there is an extensive network of ADR services across Portugal. Alternative dispute resolution includes justice of the peace courts, which include a mediation phase before the case goes to court; arbitration, which can be institutionalised through arbitration centres with defined facilities, mandates and procedures, or ad hoc, according to what is defined by the parties and the arbitrators; and mediation, which can take place in a variety of settings, namely justice of the peace courts and public mediation systems (see Figure 4.4).
Source: Author’s own elaboration.
Portugal is to be congratulated for its commitment to establishing and supporting a range of ADR services and for its efforts to learn which strategies and processes work best through outcomes and satisfaction surveys.
The first justice of the peace courts were created in 2001, with a view to overcome a perceived crisis that the justice system in Portugal was undergoing at that time (Government of Portugal, 2001[24]). It was observed that judges, public prosecutors and court clerks spent long hours and were overburdened with cases that could usefully be submitted to a new form of dispute resolution. As part of the reforms, judges not sworn to the bench could be allocated to procedures whose formalities were reduced to a minimum. The reform also intended to bring justice closer to the people, with judges and court officials freed up to handle cases other than those referred to the justice of the peace courts (Government of Portugal, 2000[25]).
The justice of the peace courts were created by government decree, after consulting the Council of Justice of the Peace Courts, the Supreme Council of the Judiciary, the Bar Association, and the National Association of Portuguese Municipalities. It is the legislation of creation of the concrete justice of the peace courts that defines their territorial coverage, which may comprise a municipality or a group of municipalities (Government of Portugal, 2001[24]).
The justice of the peace courts are a collaboration between the Ministry of Justice and local municipalities. The Ministry provides a salary and conducts the recruitment process for the appointment of the judges. It provides for the recruitment and fees for mediators, while the municipality is responsible for funding the clerks and other services. The Ministry of Justice also currently covers the costs of developing the dispute resolution platform, RAL+, which supports the activity of the justice of the peace courts. This shared funding model appeared problematic in some cases. During the fieldwork for this project, it was reported that the level of involvement and commitment of the municipalities in which the justices of the peace courts are located varies, leading in some cases to less than adequate funding. This collaborative funding model can, however, be a success. For example, in New South Wales (Australia), the Find Legal Answers service is a collaboration between the State Library and the local municipal governments (through council-run libraries), across dozens of towns and regions across New South Wales. Co-funding is provided by the State Library and by local municipality governments (Government of New South Wales, 2023[26]).
By December 2023, only a relatively small number of municipalities in Portugal had taken up the justice of the peace court opportunity. Currently, there are 27 justices of the peace courts, served by 32 judges of the justice of the peace courts, covering 76 municipalities. Figure 4.5 shows the coverage of the justice of the peace courts. In a nutshell, the justice of the peace courts, whose areas of operations are limited to municipality boundaries, cover less than 15% of the territory of Portugal (although in population terms this area covers about 36% of the resident population), and this fact alone could be a barrier to the wider acceptance and usage of these courts, even within the municipalities that have them (INE, 2021[27]). To address this issue, Portugal is exploring the possibility of establishing a digital justice of the peace court with jurisdiction over the whole country. Although likely an important enhancement to the provision of justice of the peace court services, it is unlikely to address all accessibility challenges. Awareness and experience in using justice of the peace courts among the national profession and legal sector at this point remains limited. Increased awareness among these groups, and also among local government and NGO agencies and services that may act as referral agents will be crucial for increased take-up of the services.
In regions where there is no justice of the peace courts, relevant matters go directly to ordinary courts. Where there are justice of the peace courts, it is the applicant’s choice which venue they engage. The justice of the peace courts can only be used for declaratory procedures whose value does not exceed EUR 15 000. They are competent to hear and decide on civil cases (with the exception of matters relating to family law, inheritance law and labour law) concerning, for example, the fulfilment of obligations (except for those aimed at the fulfilment of a pecuniary obligation under a standardised contract); the rights and obligations of co-owners; accession; urban tenancy (with the exception of eviction); civil, contractual and non-contractual liability, among others. These courts are also competent to deal with civil compensation claims, where no criminal complaint has been filed or where such a complaint has been withdrawn related to certain crimes. If the matter commences at the justice of the peace court, a decision can only be appealed to the ordinary courts for matters above EUR 2 500.
The activities of justices of the peace courts are designed to enable people to participate and to encourage the fair settlement of disputes by agreement. The procedures are conceived and guided by principles of simplicity, appropriateness, informality, orality, and absolute economy of procedure (Government of Portugal, 2001[24]). The main advantages of resorting to the justice of the peace courts are the associated low costs, informality and simplicity of procedures.
One strong positive aspect in relation to the justice of the peace courts is the level of co-ordination between the various courts. Project fieldwork in October 2022 revealed that until just prior to the interviews, the Council of the Justice of the Peace Courts, judges and staff had been holding monthly online meetings. These were opportunities to raise questions, develop procedures, and provide opportunities to convey experiences and develop protocols. This approach to co-ordination and standardisation of practice and rules is encouraging and should be recommenced and supported.
Note: Only available in Portuguese.
Source: Government of Portugal (2024[28]), Mapa dos Julgados de Paz instalados, https://www.conselhodosjulgadosdepaz.com.pt/contactos.asp.
Some of the challenges and areas for enhancement of the functioning of the justice of the peace courts from a people-centred justice lens include limited data collection, lack of awareness and confidence, limited resources and priority, and the funding model itself.
As in other parts of the justice system, data collected by the justice of the peace courts are very limited. In general, people-centred variables were not collected. While the representatives of courts consulted during the project could see the potential value in collecting a broader range of people-centred data to understand users and non-users of the justice of the peace courts, it was made clear to the review team that at this point any data collection was limited to the narrow range of variables within their current competences.
The lack of awareness in the community about the work of the justice of the peace courts was raised on several occasions during the fact-finding interviews. Significantly, some stakeholders were concerned that even locally, among officers and staff of municipal organisations and police, knowledge of the work of the justice of the peace courts was very limited. After the fact-finding mission, Portugal developed a national campaign at the end of 2023 to publicise and promote not only the justices of the peace courts but also the family and labour public mediation systems and consumer arbitration centres. The Ministry of Justice, through the Directorate-General for Justice Policy (DGPJ), also has a website dedicated to ADRs (https://meiosral.justica.gov.pt/), with relevant information on their use. However, this is an endeavour that must be continued and communication strategies must be adapted to the target audience.
At the same time, the justice of the peace courts appear to face challenges with respect to staffing and resources. This was manifest in both the limited number of regions where there exists such a court but also in the level of resourcing for the existing services. In the region visited there were key staff deficiencies. In part, this difficult under resourcing situation may have been complicated by the divided funding arrangements between the Ministry of Justice and local municipalities. In this regard, justice of the peace courts need to be adequately funded to further demonstrate their worth and to be examined and evaluated properly.
The current situation with the justice of the peace courts perhaps provides an opportunity for some research designs to compare the processes and performances of regular courts in contrast to justice of the peace courts dealing with similar matters for similar users, as well as to assess the impacts of the introduction of such courts in regions that are currently not served by them.
The current legal regime governing arbitration is set out in Law No. 63/2011. Voluntary arbitration enables parties to submit the resolution of their disputes to independent, impartial and qualified arbitrators. Only disputes not exclusively assigned to a court of law or to necessary arbitration and concerning a right of patrimonial nature may be submitted to voluntary arbitration.
Entities that wish to formally promote voluntary arbitration must request the Minister of Justice to establish arbitration centres (Government of Portugal, 1986[29]). Arbitration centres operate according to their territorial competence, subject matter and, in certain cases, the value of the dispute. They provide legal information on the matters within their competence, inform the parties of their rights and duties, and introduce them to alternative dispute resolution mechanisms available.
The Office for Alternative Dispute Resolution within the Directorate-General for Justice Policy (Ministry of Justice) provides technical and financial support to some arbitration centres in areas of sensitive social importance and noticeable public interest. The Ministry of Justice gives technical support to 11 arbitration centres operating in the areas of general consumer conflicts3, automobile and insurance4, industrial property5, administrative and fiscal arbitration. Of those, only the Administrative and Arbitration Centre (CAAD) is financially autonomous. The remaining 10 are currently also funded by the Ministry of Justice.
In arbitration matters, the Administrative Arbitration Centre (CAAD) is competent in the areas of administrative and fiscal laws in legal relationships of public employment and contracts entered into force with public entities (Government of Portugal, 2021[30]). For example, the CAAD is competent to settle disputes in tax matters, allowing taxpayers to appeal to the CAAD when they disagree with certain decisions from a tax authority. In 2021, 862 requests for the constitution of an arbitration court in tax matters were submitted to the CAAD. The average decision time was 4.5 months (CAAD, 2021[31]). In 2022, the figures were similar: 810 incoming cases and an average case resolution time of 4.5 months (CAAD, 2022[32]).
In addition to these supported arbitration centres, there are also many other authorised arbitration centres, mainly in the consumer and commercial areas6, which are not funded by the Ministry of Justice.
Over the last few years, the number of arbitration proceedings filed has significantly grown. While in 2006 there were 8 555 cases filed, in 2022 that number was 12 464, which may also be an expression of the greater availability of arbitration centres, mainly those related to consumer law. However, together with the increase in the number of cases, there has also been an increase in the number of pending cases (1 472 cases pending in 2006 compared to 4 276 cases pending in 2022) (Government of Portugal, 2024[33]). The main advantage of alternative means of dispute resolution is to offer a quicker and less expensive solution. An increase in the number of pending cases could compromise the mobilisation of this mechanism. This increase in pending matters may reflect on the one hand, the COVID-19 pandemic and, on the other hand, the gradual extension of the competence of the arbitration centres with regard to the necessary arbitrations (for essential public services in 2011 and for disputes of low economic value in 2019). However, a closer look at the official statistics and the perceptions expressed by the interviewees reveals that the increase in the number of cases pending is sometimes linked more to the peculiarities of each arbitration centre (for example, the temporary unavailability of an employee). This reflects the fragility of their organisation rather than external factors. It is important to strengthen arbitration centres, not least so that they are not so affected by constraints and unforeseen events.
The broadening of matters taken to arbitration reflects the increased recognition of the role of arbitration in recent years. For example, in 2011, consumer disputes within the scope of essential public services became subject to necessary arbitration whenever individual users expressly opted to submit the case to any authorised consumer conflict arbitration centre (Government of Portugal, 2011[34]). In 2014, with the creation of the sports arbitration court, disputes arising from acts and omissions of sports federations, professional leagues and other sports entities within the scope of their corresponding powers of regulation, organisation, direction and discipline began to be submitted to necessary arbitration (Government of Portugal, 2013[35]). In 2019, consumer disputes up to EUR 5 000 became subject to the necessary arbitration or mediation performed by alternative dispute resolution entities. In this case, provided there is an express choice by consumers, companies are required to submit their consumer disputes to mediation and arbitration (Government of Portugal, 2019[36]). The European Union (EU) Directive on Alternative Dispute Resolution for Consumer Disputes, transposed into law (Government of Portugal, 2015[37]), was another important milestone for internal and cross-border consumer disputes, creating the right conditions for the development of an arbitration network within Portugal and across EU countries.
However, fact-finding interviews with alternative dispute resolution (ADR) service providers, practitioners and non-governmental organisations suggested that ADR services in Portugal had evolved over time into something of a traditional legal approach, with different jurisdictions having separate ADR services created without a common system of processes or a common jurisprudence. The greatest investment seems to have been made in the network of consumer arbitration centres, whose rules and procedures were standardised in 2015 with the approval of Law 144/2015 of 8 September 2015, which establishes the legal framework for mechanisms for the alternative resolution of consumer disputes. However, even among these arbitration centres, there are different rules, such as the limit of the disputes that determine the competence of the centres (while in most consumer arbitration centres this limit is EUR 30 000, in the CACCL and CACR it is EUR 5 000) or the services provided (some arbitration centres provide for conciliation and arbitration, while others also provide for mediation). Furthermore, these rules do not apply to other arbitration centres not included in the network of consumer arbitration centres. Evidence collected throughout the diagnosis phase seems to support this view.
Although specialisation can be an important way to improve the efficiency and quality of services provided (within the specialist area) from a people-centred approach, arbitration should be seen as an integral part of a continuum of justice services in a reality where people’s (often multiple) problems don’t always fit within (or people cannot identify) a single legal area of dispute resolution. In other words, any potential benefits obtained through specialisation must be balanced against a people-centred perspective and the value of services approaching a ‘one-stop shop’ for people experiencing multiple legal and other problems. Some respondents also reported that there are grey areas even with regard to the competence of consumer arbitration centres, where the possibility of extending their competence could be discussed and promoted. Accordingly, there is significant potential to further move towards comprehensive, seamlessly consistent, joined-up dispute resolution services.
The existence of such restricted jurisdictions means that different services can provide or support participation in ADR processes only within specific and defined areas of law. Procedures can be different among ADR providers, eligibility may vary from service to service and, for a non-professional, procedures can be seen as complex.
Furthermore, the financing of arbitration centres seems to be a major challenge for their sustainability. Since they are generally legal entities governed by private law, with autonomy from the state, their sources of funding can and should be diversified. However, some of the non-funded ADR institutions seem to struggle financially. To avoid financial constraints, some limit their areas to commercial law. Situations of near-paralysis of some arbitration centres not funded by the Ministry of Justice were mentioned. Even the ability of centres funded by the Ministry of Justice to find alternative sources of funding varies greatly. The funding of the arbitration centres that make up the Consumer Arbitration Network is made up of a fixed part (paid partly by the State, via the DGPJ, and partly by the regulators of essential public services) and a variable part allocated by the regulators of essential public services, depending on the volume of cases handled (Ref – Law 114/2015, 8 September 2015, last amended by Decree-Law 9/2021, 29 January 2021– https://data.dre.pt/eli/lei/144/2015/p/cons/20210129/pt/html). Notwithstanding, different financial thresholds appear to be in place for each arbitration centre (Government of Portugal, 2024[38]) (Government of Portugal, 2024[39]). Also, interviewees pointed out shortcomings in the funding model and the associated limited planning capacity. At the time of the report, a working group had been set up to review the funding model for Consumer Arbitration Centres and had come up with a proposal to revise the model.
Reviewing the funding of ADR services is encouraged. In particular, adopting a perspective of ADR services – and their associated funding – that recognises ADR services generally, including arbitration centres, as integral components of the total range (continuum) of justice services available to meet the legal need of the community is an appropriate direction for reform when seeking a people-centred justice system. Global and Portuguese LNS findings and OECD analysis have consistently found that people with legal needs more commonly choose alternate pathways to deal with their problems than using courts and formal processes. They often lack knowledge of their rights and available services, and the capacity to deal with the legal problems they face. Therefore, they need both access to a range of services (including less formal and more accessible services such as ADR) as well as simplified pathways to seek justice rather than complex ones. A system involving many different arbitration centres but each with narrow and limited jurisdictional competences and with different financial thresholds is likely to be inaccessible, adding time and costs to those that do proceed through the ADR system.
To maximise the potential and cost-effectiveness of ADR, there would potentially be substantial benefits from a general rationalisation of arbitration processes and practices. This could involve evaluating accredited arbitration centres, considering greater rationalisation of jurisdictions and organisations, and reviewing the funding model of those that are state-funded, as well as stronger co-ordination to achieve greater consistency, access and a “no-wrong-door” approach.
The Mediation Law establishes the general principles applicable to mediation conducted in Portugal, regardless of the entity performing the mediation (public or private) or the matter in question (Government of Portugal, 2013[40]). This legislation defines the necessary requirements so that the mediation agreement has the same value of) a judicial sentence (principle of enforceability), without the need for approval (homologation) by a judge. Among these requirements is the need for the conflict to be mediated by a mediator who integrates a public system of mediation or who is registered in the list of mediators of conflicts organised by the Ministry of Justice, and that the dispute relates to a matter for which the law does not require judicial approval. Mediation can take place in different forums. It can be carried out at the request of the parties, using accredited mediators. It can take place in the justice of the peace courts, since the procedure in these courts explicitly provides for a mediation phase before the case is heard. It can also be conducted within the framework of the three public mediation systems (see Box 4.4).
There are 3 public mediation systems: the family mediation system (“Sistema de Mediação Familiar”), the labour mediation system (“Sistema de Mediação Laboral”) and the penal mediation system (“Sistema de Mediação Penal”).
The family mediation system operates in any type of conflict arising within the scope of family relations. Mediation may take place in the extrajudicial phase at the request of the parties, during the suspension of the proceedings by determination of the competent judicial authority with the consent of the parties, and during a child protection case by determination of the competent judicial authority or child and youth protection commission, with the consent of the parties. In family matters, most agreements require homologation by a judge or registrar.
Meditation in labour matters can operate in cases of individual employment contract, except for matters relating to inalienable rights. The employer and the employee who have a conflict may, voluntarily and by joint decision, submit the dispute to mediation. Also, the judge or the public prosecutor may determine the intervention of the labour mediation system after obtaining the consent of the parties to that effect.
Mediation in criminal proceedings may take place for a crime that is dependent on a complaint or private accusation, and in criminal proceedings for a crime that depends only on a complaint when it is a crime against people or a crime against property. Mediation in criminal matters operates on an experimental basis in certain districts that are part of the old judicial organisation1. Mediation came into force to fulfil the provisions of the Council of Europe regarding the statute of the victim in criminal proceedings. The Council of Europe determines that the member states should endeavour to promote mediation in the scope of criminal proceedings.
During the investigation phase, the defendant and the victim can, voluntarily and through a joint decision, ask the Public Prosecutor’s Office to refer the case to mediation. The Public Prosecutor’s Office may, during the same investigation phase and if it has gathered evidence of the crime and of the person who committed it, refer the process to mediation if the defendant and the victim agree. Regardless of the nature of the crime, mediation in criminal proceedings cannot take place in the following cases: in crime carrying a prison sentence of more than five years; in crimes against sexual freedom or self-determination; in crimes of embezzlement, corruption or influence peddling; and when the victim is under 16 years of age.
1. Barreiro, Braga, Cascais, Coimbra, Loures, Moita, Montijo, Porto, Santa Maria da Feira, Seixal, Setúbal and Vila Nova de Gaia, as well as in the pilot districts of Alentejo Litoral, Baixo Vouga and Grande Lisboa Noroeste.
Source: Government of Portugal (2006[41]), Protocolo de–Acordo - Mediação Laboral, https://dgpj.justica.gov.pt/Portals/31/GRAL_Media%E7%E3o/Protocolo_Mediacao_Laboral.pdf; Government of Portugal (2018[42]), Order no. 13/2018, https://diariodarepublica.pt/dr/detalhe/despacho-normativo/13-2018-116929980; Government of Portugal (2007[43]), Order no. 18778/2007, https://diariodarepublica.pt/dr/detalhe/despacho/18778-2007-3046940; European Union (2001[44]), Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001F0220; Government of Portugal (2007[45]), Law no 21/2007, https://diariodarepublica.pt/dr/legislacao-consolidada/lei/2007-63397378.
Official statistical data on public mediation show that this is still a marginal channel for resolving conflicts. The most used public mediation system is family mediation. However, in 2022, only 895 requests for family mediation had been received, with only 372 accepted. The remainder did not proceed to mediation due to withdrawal by the applicant (227), lack of response (120), non-acceptance by the other party (85) or the request not meeting the necessary requirements (52). In labour mediation, the number is even lower: in 2022, in only eight cases was the request for mediation accepted. As for criminal mediation, from 2017 there are no records of requests for criminal mediation (Government of Portugal, 2024[46]). The creation of public mediation services or the legal acceptance of its possibility during a judicial process are not sufficient for the dynamisation and effective mobilisation of these resources. We note that the government of Portugal launched a publicity campaign at the end of 2023 to promote ADR, including mediation services, Notwithstanding this positive initiative, there is still scope to foster the uptake of these services, as well as their effective promotion and operation.
It should be noted that a people-centred approach to data collection may help identify who in the community is reaching the service and, by implication, who is not. This information could be used to target campaigns more effectively.
The Portuguese authorities have already been advancing efforts to understand and improve satisfaction with and trustworthiness of its ADR services by implementing user outcome and satisfaction surveys distributed to all users of ADR services. Since 2013, surveys such as the Barometer of the Quality of Arbitration Centres, Barometer of the Quality of Justice of the Peace Courts and Barometer of the Quality of Mediation, are applied annually to users of ADR on an online platform aimed at assessing the satisfaction of users and improving knowledge about how citizens perceive this aspect of the justice system. This is an important step in assessing the effectiveness and people-centredness of services, and as such should be employed for all justice services. There is, therefore, scope for Portugal to both enhance the present application of this survey and to expand its application more widely across the justice system.
These user surveys are designed to be completed by users following their particular ADR process. They provide the ministry with a range of information about users, their characteristics, the particular problems they have experienced, the process they have undertaken, the outcomes of that process and their satisfaction with it (Directorate General for Justice Policy, 2024[47]). User outcomes and satisfaction research is essential to improve the accessibility, availability, equality and inclusion of services. Likewise, monitoring and evaluation mechanisms allow for assessments of outcomes, focus and fairness, all of which are consistent with and important for a people-centred justice approach. They also provide a means to compare services.
Taking this step, Portugal has shown a commitment to learn from the use, costs, impact and user satisfaction with ADR mechanisms. At the same time, there is a significant opportunity to further extend this step and conduct surveys of court users to compare user satisfaction, the achievement of outcomes, and different types of users using ADR and court services. Importantly, the 2023 Portuguese LNS findings have confirmed that there is an urgent need to place greater emphasis on measuring user outcomes and satisfaction as part of the move towards people-centred justice in Portugal.
One action in the immediate term would be to enhance and expand the application of the DGPJ user satisfaction survey process to all dispute resolution mechanisms, including courts, and other justice service delivery agencies within the justice system. Although satisfaction surveys have already been carried out in the courts by the Barometer of Court Quality, which is based on the questionnaire contained in the Handbook for Conducting Satisfaction Surveys Aimed at Court Users in Council of Europe Member States, adopted by the European Commission for the Efficiency of Justice (CEPEJ) and adapted by the DGPJ for Portugal (Alves Ribeiro Correia, 2023[48]) (University of Lisbon, 2020[49]), none of the people interviewed in the courts were aware of its existence or its results. In fact, some courts have developed their own satisfaction surveys. For example, in 2022 the Leiria judicial court ran a short questionnaire to assess justice users’ satisfaction regarding the court’s conditions7. Other courts in Portugal, such as the judicial court of the district of Braga and the judicial court of the Azores have adopted similar initiatives (Tribunal Judicial de Braga, 2018[8]).
The assessment of this project is that the present DGPJ user satisfaction survey provides a sound people-centred base for a survey to be adapted and applied across the justice sector. The goal should be to apply this methodology rigorously, and then share the results with all relevant stakeholders. Where possible, justice institutions should be provided with data on the outcomes sought by users and whether these are achieved, as well as user satisfaction with the dispute resolution pathway.
To be reliable, a sufficient proportion of ADR services’ users must respond appropriately to the survey. According to information provided by the DGPJ during the diagnosis phase, to date the survey has returned low response rates. The survey is applied both to parties to proceedings and to non-parties and there is apparently no direction or control as to when the survey is to be completed, whether at the beginning or at the end of the proceedings. This does not allow an appropriate assessment of response rates, as it is not possible to compare with the correct number of parties (of incoming cases or of closed cases). Further, there is a very uneven level of responses between the various entities.
To be effective and useful, improved response rates are necessary to ensure responses received are broadly reflective. The number of responses is particularly low for users of justice of the peace courts and public mediation systems. In 2017, 1 466 responses were considered valid (1 335 concerning users of arbitration centres, 118 concerning users of justice of the peace courts and 13 concerning users of public mediation systems) (Directorate General for Justice Policy, 2018[50]).8 In 2021, only 1 059 responses were considered valid (1 013 concerning users of arbitration centres, four concerning users of justice of the peace courts and 42 concerning users of public mediation systems). According to the official justice statistics produced by the DGPJ, in 2021, 13 931 cases were resolved in arbitration centres, 1 014 cases in public mediation and 10 342 in justice of the peace courts. Increasing the response rate to these surveys is a concern for Portugal, which is currently making efforts to resolve this issue, namely by automating the survey response procedure. Notwithstanding this, Portugal would benefit from a re-evaluation of the method of implementation of this survey with a view to make necessary changes and improve response rates.
Once response rates increase, survey results need to be analysed and effectively communicated to different stakeholders. The results of this analysis, tailored for different purposes (e.g. comparing different ADR processes, or comparing ADR processes when dealing with different legal problem types or different user groups) would have to be available and accessible to the full range of people and decision makers who need this information to inform their decisions. These include not only governments but also service funders, ADR service providers, and potential users of services to help them choose the most appropriate pathway.
Access to law and justice is regulated by the Legal Aid Act (Government of Portugal, 2004[51]), aiming to guarantee that no one is prevented from being informed or from exercising or defending their rights due to their social or cultural status or lack of financial means.
The legal aid system applies in all courts, regardless of the form of the proceedings and in other alternative dispute resolution mechanisms such as justice of the peace courts, the public mediation systems, and the arbitration centres which are supported by DGPJ (Government of Portugal, 2008[52]).
Free legal protection is granted following a means assessment based on household income. Only those who lack sufficient means are entitled to free legal protection, which includes free legal advice from a lawyer and free legal aid. The first may include carrying out extrajudicial endeavours, and the second may take on different forms in a combination of total or partial exemption from court fees and other charges related to the proceedings, appointment of a lawyer and payment of fees, and payment of court or legal fees in instalments.
The Social Security Institute decides on applications for legal protection, assessing the economic conditions for the attribution of the benefit. The assessment of the economic insufficiency of individuals is carried out considering the average monthly income of the family household of the respective applicant (Government of Portugal, 2004[51])9. The law has safeguard clauses under certain justified reasons or specific cases (Government of Portugal, 2004[51])10. The Social Security Institute has available an online simulator that allows for the determination of whether the applicant is entitled to legal protection (Government of Portugal, 2023[53]). If free legal aid covers the appointment of a lawyer, the decision is referred to the Portuguese Bar Association. The Bar appoints a lawyer from those registered in the legal aid system according to their preferred areas of practice and considering the location of the competent court and where the lawyer has his/her office. The appointment is made randomly through the Bar’s information system (SinOA).
From the end of December 2022, it has become possible to apply for legal protection online via the portal of the Social Security Institute, which brings together all social security services. Until then, applications could be made on paper, either in person, by post or by e-mail. The application can now also be made from each citizen's reserved area of the social security portal. According to information released by the government on 19 December 2023 at a meeting to present the first impact of the news in the area of courts and alternative dispute resolution, 22 000 online requests for legal aid have been made through the portal of the Social Security Institute. This online application opens new possibilities for improving the decision-making process. From the fact-finding interviews, it was possible to pinpoint the main benefits identified by stakeholders. On the one hand, the Social Security Institute has immediate access to the applicant's income and assets, which can improve the assessment of legal aid and make the procedure faster, more standardised and more transparent. Another improvement is the possibility to communicate with other information systems, such as those of the courts. Ideally, the applicant would just enter the case number and the system would upload all the information from the case.
The Social Security Institute reported that it is actively evaluating the results of this new application to understand its main benefits and correct any undesirable outcomes. One of the more notable changes reported was the increase in one type of legal aid: legal advice. The preliminary reason pointed to for this is the fact that it is not possible to select both legal advice and legal aid in the online form.
Most of those interviewed recognise legal aid as one of the most important guarantees of access to justice. However, they also identified a number of limitations that hamper its effective operation. The first difficulty identified was the actual submission of the legal aid application. Although the interviewees mentioned various strategies for guiding beneficiaries through this process (NGOs and parish councils seem to play an essential role here), they also mentioned that the availability of this assistance varies greatly across the country and depends on the greater or lesser proactivity of local organisations (see The pluriform justice system in Portugal: Existing dispute resolution mechanisms). Additionally, it was pointed out that the assessment of economic means for access to legal protection is very limited and excludes a number of people for whom the costs of going to court (court fees and lawyers' fees) are unaffordable.
In many countries, non-government and community organisations fulfil important service delivery roles, including in providing legal services, such as in Australia with community legal services (Community Legal Centres Australia, 2024[54]) and with Aboriginal and Torres Strait Islander Legal Services (NATSILS, 2024[55]). A key characteristic of their work and the way they operate is based on the fact that they are often well connected to particular disadvantaged communities (e.g. local or disadvantaged communities that they target for their services).
In Portugal, it appears that some NGOs provide an important bridge between members of the community in need of legal assistance or services and the justice system components that could facilitate the resolution of problems. The engagement of certain NGOs, such as the Portuguese Consumer Defence Association (DECO) and Portuguese Victim Support Association (APAV), with relevant communities appears to be substantial and significant.
The diagnosis phase of this project also revealed the NGOs’ awareness of the need to guide people through the most appropriate (for the client) legal processes if they want to be effective in the support they provide their clients. Thus, the NGOs engaged during this project recognised the need to have competent staff and processes to guide people along appropriate pathways, and to engage them at points along justice pathways to facilitate their experience. For example, APAV supports police and courts in a range of locations as a means of helping their clients engage with the police and the courts, using different pathways that can operate most effectively in a particular location and operational environment. In some places, this includes providing support officers in courts.
By virtue of its area of work, DECO has strong links and engagement to relevant ADR services and can assist consumers to navigate these pathways. NGOs such as APAV appear to be more focused than some formal justice agencies on co-ordinating and delivering “holistic” services from a wide range of government and non-government service providers to address the various inter-linked needs that many people experience. While formal justice system institutions are often limited to strict mandates and competences, NGOs are generally more engaged with other social service organisations as a matter of their normal operations, and are therefore well placed to assist users with more holistic pathways to problem resolution.
These roles that certain NGOs play (e.g. providing a ‘bridge’ to formal justice services; providing more people-centred entry points and more people-centred links to other services) might be particularly relevant where issues of lack of trust between government and certain communities might be a factor.
Significantly, similar to other jurisdictions, the NGOs consulted during the project seemed to operate in an environment of limited resources, and thus needing to continually pursue funding to maintain their day-to-day operations. This can lead to some challenges, including difficulties in committing to ongoing programmes, losing staff because of employment uncertainty, and priorities set by available funding rather than identified need. Likewise, such a business model can lead to potential inefficiencies, including staff time spent on ‘chasing’ grants and other funding sources to continue providing services, which inevitably reduces time committed on actual operations.
References
[48] Alves Ribeiro Correia, P. (2023), Justiça 360º – Satisfação, Lealdade e Envolvimento de Cidadãos e Colaboradores: Tribunais, Meios de Resolução Alternativa de Litígios e Serviços do Ministério da Justiça em Portugal.
[32] CAAD (2022), Relatório Anual do Funcionamento da Arbitragem Tributária, https://www.caad.org.pt/files/documentos/relatorios/CAAD-Relatorio_Anual_Arbitragem_Tributaria_2022.pdf.
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[54] Community Legal Centres Australia (2024), About us, https://clcs.org.au/.
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[7] Government of Portugal (2023), Decree-Law no. 1/2013, of 7 January, amended by Law no. 56/2023, of 6 October, https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=2574&tabela=leis&so_miolo=.
[53] Government of Portugal (2023), Simulador: Cálculo do valor de rendimento para efeitos de proteção jurídica, https://www.seg-social.pt/2023-1-semestre.
[18] Government of Portugal (2022), Grupo de Trabalho para a Justiça Administrativa e Fiscal - II Relatório Intercalar, https://justica.gov.pt/Portals/0/Ficheiros/Organismos/JUSTICA/II%20Relatorio_GrupoTrabalhoTAF_FEV2022.pdf.
[19] Government of Portugal (2022), Order 7898/2022, https://diariodarepublica.pt/dr/detalhe/despacho/7898-2022-185330715.
[30] Government of Portugal (2021), Decree Law no. 10/2021, https://diariodarepublica.pt/dr/legislacao-consolidada/decreto-lei/2011-66008176.
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[22] Government of Portugal (2020), Relatório Síntese do Ministério Público de 2019, https://www.ministeriopublico.pt/pagina/relatorio-sintese-do-ministerio-publico-de-2019.
[10] Government of Portugal (2019), Amendment to Law no. 62/2013 and Decree Law no. 49/2014, https://diariodarepublica.pt/dr/detalhe/lei/19-2019-119847701.
[23] Government of Portugal (2019), Boletim Informativo, pp. 1 - 9.
[15] Government of Portugal (2019), Decree Law 174/2019, https://diariodarepublica.pt/dr/detalhe/decreto-lei/174-2019-127176910.
[36] Government of Portugal (2019), Law 63/2019, https://diariodarepublica.pt/dr/detalhe/lei/63-2019-123962147.
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[37] Government of Portugal (2015), Law 144/2015, https://data.dre.pt/eli/lei/144/2015/p/cons/20210129/pt/html.
[9] Government of Portugal (2014), Decreto-Lei n.º 49/2014, https://diariodarepublica.pt/dr/legislacao-consolidada/decreto-lei/2014-105630273.
[3] Government of Portugal (2013), Judicial System Organization Law (Law Number 62/2013), https://diariodarepublica.pt/dr/legislacao-consolidada/lei/2013-34581275.
[35] Government of Portugal (2013), Law 74/2013, https://diariodarepublica.pt/dr/legislacao-consolidada/lei/2013-58891121.
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[41] Government of Portugal (2006), Protocolo de Acordo - Mediação Laboral, https://dgpj.justica.gov.pt/Portals/31/GRAL_Media%E7%E3o/Protocolo_Mediacao_Laboral.pdf.
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[1] OECD (2021), OECD Framework and Good Practice Principles for People-Centred Justice, OECD Publishing, Paris, https://doi.org/10.1787/cdc3bde7-en.
[4] OECD (2020), Justice Transformation in Portugal: Building on Successes and Challenges, OECD Publishing, Paris, https://doi.org/10.1787/184acf59-en.
[8] Tribunal Judicial de Braga (2018), Relatório Final - Perceção da eficiência dos serviços de justiça instalados no tribunal judicial da comarca de Braga, http://www.eduardoduque.pt/uploads/relatorio-eficiencia-da-justica.-2018.pdf.
[49] University of Lisbon (2020), Programa “Justiça + Próxima” em Portugal: A Medida Justiça 360º - Avaliação da Satisfação e Lealdade do Cidadão, http://hdl.handle.net/10400.5/20411.
← 1. Açores, Aveiro, Beja, Braga, Bragança, Castelo Branco, Coimbra, Évora, Faro, Guarda, Leiria, Lisboa, Lisboa Norte, Lisboa Oeste, Madeira, Portalegre, Porto, Porto Este, Santarém, Setúbal, Viana do Castelo, Vila Real and Viseu (Law Number 62/2013 - Judicial System Organization Law, https://diariodarepublica.pt/dr/legislacao-consolidada/lei/2013-34581275).
← 2. Questions aimed at assessing the conditions of access to the court building; the signage in the building; the waiting conditions; the sufficiency of time assigned for the procedure; the waiting time; the clarity of the language and information provided; the attitude and efficiency of the security guards; the attitude and courtesy of the court clerks; and the attitude and courtesy of the judges and prosecutors.
← 3. Coimbra District Consumer Conflict Arbitration Centre - CACCDC; Lisbon Consumer Conflict Arbitration Centre - CACCL; Centro de Arbitragem de Conflitos de Consumo do Ave, Tâmega e Sousa - TRIAVE; Consumer Information and Arbitration Centre of Porto (Consumer Arbitration Court) - CICAP; Information, Mediation and Arbitration Centre for Consumer Conflicts in the Algarve - CIMAAL; Consumer Information, Mediation and Arbitration Centre (Consumer Arbitration Court) - CIAB; National Centre for Information and Arbitration of Consumer Conflicts – CNIACC.
← 4. The Insurance Information, Mediation and Arbitration Centre (Centro de Informação, Mediação e Arbitragem de Seguros - CIMPAS) covers disputes arising from: traffic accidents, including those resulting in bodily injury but excluding death and permanent disability; and from contracting multi-risk insurance (household and commercial, up to EUR 50 000) and third-party liability insurance (family, exploration, hunter, and use and carrying of a weapon, up to EUR 50 000). The Arbitration Centre for the Automobile Sector (Centro de Arbitragem do Sector Automóvel – CASA) covers disputes arising from consumer conflicts regarding automobile repair services, resale of fuels, oils and lubricants, purchase and sale of parts or any materials intended to be applied to motor vehicles, and the purchase and sale of new and used vehicles. In December 2023, CASA announced the suspension of its services, with the result that these disputes became the responsibility of the seven general consumer arbitration centres.
← 5. Arbitration for Industrial Property, Domain Names, Trade names and Corporate Names (ARBITRARE), which resolves conflicts in industrial property, domain names, trade names and corporate names, between two or more individuals and between one individual and the entities competent to register trademarks, patents and trade names and .pt domain addresses, the National Institute of Industrial Property (INPI), the Institute of Registration and Notary Affairs (IRN) and the DNS.PT Association.
← 6. Centre for Arbitration and Dispute Resolution (CARL); Public Procurement Arbitration Centre of the Portuguese Public Markets Association (CAP-APMEP); Arbitration Centre of the Portuguese-Spanish Chamber of Commerce and Industry; Information, Mediation and Arbitration Centre of the Notaries' Association; Concordia Centre for Conciliation, Mediation and Arbitration - Centro Concórdia; National Centre for Information and Arbitration of Consumer Conflicts (CNIACC); Mediation and Arbitration Centre (CEMEAR ÓBIDOS); Centre for Administrative Arbitration (CAAD); Arbitration Centre for Industrial Property, Domain Names, Trade Names and Corporate Names (ARBITRARE); Arbitration Centre of the German-Portuguese Chamber of Commerce and Industry; Centre for Voluntary Arbitration of Consumer Conflicts of the Autonomous Region of Madeira; Property and Real Estate Arbitration Centre of the ESAI - Escola Superior de Actividades Imobiliárias; Dispute Arbitration Centre, Hotels, Travel and Tourism; Arbitration Centre of the Portuguese Wood and Furniture Industries Association; Centre for Voluntary Arbitration on Property and Tenancy; Centre for Information, Mediation and Arbitration in Insurance (CIMPAS); Institutionalised Arbitration Centre; Algarve Consumer Conflict Information, Mediation and Arbitration Centre (CIMAAL); Arbitration Centre of the Securities Institute; Arbitration Centre of the Autonomous University of Lisbon; National Centre for Construction Arbitration; Coimbra District Consumer Conflict Arbitration Centre (CACCDC); Consumer Information, Mediation and Arbitration Centre - Consumer Arbitration Court (CIAB); Institutionalised Arbitration Centre; Consumer Information and Arbitration Centre of Porto (CICAP); Centre for Arbitration of Civil, Commercial and Administrative Disputes (CAL); Ave, Tâmega and Sousa Consumer Conflict Arbitration Centre (TRIAVE); Centre for Arbitration in the Automotive Sector (CASA); Arbitration Committee of the Portuguese Professional Football League; Lisbon Consumer Conflict Arbitration Centre (CACCL); Regional Secretariat of Labour of the Autonomous Region of the Azores; Arbitration Centre of Arbitral - Sociedade de Arbitragem; Loulé Arbitration Centre Association (C.A.L.); Arbitration Centre of the Portuguese Catholic University; Arbitration Centre of the Portuguese Chamber of Commerce and Industry; Commercial Arbitration Institute.
← 7. Questions aimed at assessing the conditions of access to the court building, the signage in the building, the waiting conditions, the sufficiency of time assigned for the procedure, the waiting time, the clarity of the language and information provided, the attitude and efficiency of the security guards, the attitude and courtesy of the court clerks, and the attitude and courtesy of the judges and prosecutors.
← 8. The responses obtained refer either to parties (71%) or representatives of parties to the proceedings (11.18%), or to family members of one of the parties (5.3%), witnesses (2.1%), persons who went to the arbitration centres/justices of the peace courts to request information (5.2%), visitors (0.5%), and others (2.2%), with 1.9% of respondents not answering the question on what led them to go to one of the assessed entities. The survey was also applied, both to users who had already had a final decision in the process and to users who had not yet obtained a decision.
← 9. To determine the household's income, all the family's earnings are considered, namely salaries, self-employed earnings, pensions, stocks, bonds, funds, deposits, real estate, and cars. The relevant income for legal protection purposes is the amount that results from the difference between the value of the household's full net income and the value of the deduction relevant for legal protection purposes. This deduction value is based on a legal presumption as to household expenses and charges, even if the actual value of these expenses and charges is higher than the value resulting from this presumption. This average monthly income is calculated in accordance with rather complex arithmetical formulae.
← 10. Firstly, exceptionally and for justified reasons, as well as in the event of a dispute with one or more members of the household, the assessment of the applicant's situation of economic insufficiency may consider only the average monthly income of the applicant or of him/her and some members of his/her household, and not of the entire family’s household. However, this must be requested by the applicant. Secondly, if, when faced with a specific case, the head of the social security services responsible for deciding on the granting of legal protection considers that the application of the general criteria leads to a manifest denial of access to the law and to the courts, he/she may, by means of a specially reasoned order and without the possibility of delegation, decide differently and grant legal protection.