Portugal
Basic Facts about the Country
Membership of the European Union
1 January 1986
Membership of the Council of Europe
22 September 1976
Entry into force of the European Convention on Human Rights
9 November 1978
Basic Facts about the Judiciary
Budget per inhabitant
€
Overall number of judges
Number of professional judges per 100,000 inhabitants
19.40
Constitutional Court
Yes
- Composed of 13 Justices. Ten are appointed by the Assembly of the Republic (at least two-thirds of the members are required to be present, and at least an absolute majority of all the members in full exercise of their office). The remaining three are co-opted by those ten justices, also subject to a qualified majority.
- At least six of the 13 Justices must be chosen from among the judges of the other courts, while the rest must be jurists — that is to say, the holders of an academic degree in
- The term is nine years and cannot be repeated. The president and vice president of the Court hold office for four-and-a-half years, but can be reappointed.
- Disciplinary authority over Constitutional Court justices is in the hands of the Court’s president, with the possibility of appeal to the Court itself.
- Constitutional Court justices are independent and cannot be removed – they cannot leave office before the end of the term, except in the event of their death or permanent physical incapacity, resignation, acceptance of a position or practice of an act that is legally incompatible with the exercise of their functions, or for disciplinary reasons.
- No other function is permitted for justices, except for teaching or scientific work in the legal field, which cannot be remunerated.
- Like the other holders of political office, justices are obliged to submit a declaration of income at the beginning and end of their terms.
- Constitutional Court justices may not perform any functions in the governing bodies of political parties or associations or foundations with links thereto, and they are not allowed to engage in public party-political activities. While they are in office, their membership in political parties or associations is suspended.
Public Prosecutor
The public prosecution service is independent from the judicial power and operates autonomously from the executive branch. It has its own governance system, in which the Prosecutor General’s Office is the highest body.
Judicial Governance
Type of governance system
High Council of Justice
- The Council has two deliberative collegiate bodies: the Plenary Council and the Permanent Council.
- In addition to its president and vice president, the High Council for the Judiciary is composed of 15 members: two members appointed by the president of the republic; seven members elected by the Assembly of the Republic (the parliament); and six members elected by judicial magistrates. For more, see: https://www.csm.org.pt/vogais/
- Since 1 January 2008, the Council has acquired administrative and financial autonomy, with its own budget, included in the state budget
Distribution of Responsibility
Responsible for the appointment, assignment, transfer, and promotion of judges, and for the exercise of disciplinary action. It is simultaneously a body for the institutional safeguarding of judges and for their independence.
Challenges
Adequacy of human resources has been an issue for the justice system, in particular regarding non-judicial staff. Particular challenges have existed with the administrative and tax courts. While the government has started recruiting more judges and prosecutors, concerns remain whether these efforts are sufficient to fully address the needs of the system. It has been reported that a remaining shortage of prosecutors undermines effective prosecution of corruption cases. Another challenge from the perspective of the efficiency of the justice system is the shortage of non-judicial staff, especially at prosecution offices. Due to the retirements expected in coming years and limited recruitment in recent years, it is reasonable to expect further exacerbation of the problem and even greater shortages. Careers in the judiciary and prosecution services are not attractive, due to low salaries and challenging working conditions. The European Commission called for further action to fully address the shortage of resources of the justice system.
Careers in the judiciary and prosecution services is not attractive, due to low salaries and challenging working conditions.
Challenges persist with regards to the efficiency of the justice system, even though some progress has been made. Portugal remains under the enhanced supervision by the Council of Europe’s Committee of Ministers for the excessive length of proceedings in both civil and administrative jurisdictions. The Committee’s latest examination took place in September 2021. The Committee acknowledged certain promising measures undertaken to address the issue, but also highlighted remaining areas of concern, including the worsening of the situation as regards the length of administrative and tax proceedings. It invited authorities to monitor and provide information on the impact of the measures adopted, including on the actual increase of the overall number of judges, prosecutors and auxiliary staff dealing with administrative and tax cases, and to take additional action required to ensure a durable decrease in the overall duration of the administrative or tax proceedings. The Portuguese authorities submitted a revised action plain on 19 October 2022, which has not yet been examined by the Committee.
Portugal has faced issues with the renewal of the Constitutional Court. In contrast to Spain, however, where this blockage was due to a lack of agreement among politicians, in Portugal, judges were responsible for the most recent blockages.
The Constitutional Court has 13 justices, ten of whom are elected by a two-thirds parliamentary majority, and the elected judges themselves select the remaining three, via a process called co-optation. Initially, a “gentlemen’s agreement” was struck: the two main parties share the ten elected judges and two of the co-opted judges, and the third co-opted judge was politically neutral. Over time, both parties have allowed other minority parties to appoint judges.
If a judge whose term has expired is not replaced in time, their tenure is extended to compensate. Such failures have become increasingly common, especially when it comes to the replacement of co-opted judges, rather than election by the parliament. Most recently, the conservative wing judges reportedly blocked the process until the end of the term of the current Court president, after progressive judges did not support their candidate, a university professor with controversial views. The conservative wing claimed that the ruling party was trying to control the Court. Hence, judicial independence was used as a pretext for blockage.
New judges were ultimately appointed to the Constitutional Court April 2023, after a prolonged delay. These instances signal, however, that the politicisation of the process of judicial appointments does not only happen where political bodies are the ones making decisions. Academics have proposed various anti-deadlock mechanisms to incentivise the decision-makers to reach an agreement. For example, in the case of prolonged inaction, the power of election could be taken away from the initial decision-making body and given to another body, in this case the parliament.
Academic commentary has indicated that access to justice challenges in Portugal are not limited to failing to decide cases within a reasonable time. Denial of access to justice has also materialised in excessive formality of judicial decisions. In the Dos Santos Calado and Others v. Portugal and Amador de Faria e Silva and Others v. Portugal cases (applications nos. 55997/14, 68143/16), the ECtHR found that the Constitutional Court had been excessively formal in applying the legal framework to hear appeals and that, consequently, it had deprived the applicants of their right to access a court.
Academics also pointed to the differences between men and women with regard to vulnerability in administrative proceedings and the effects of administrative decisions. The commentary highlighted the ECtHR’s ruling in Carvalho Pinto de Sousa Morais v. Portugal, in which Portuguese administrative courts reduced the amount of compensation awarded to a woman suffering from gynecological complications because of a medical error. According to the ECtHR, the decision was based “on the general assumption that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age.” The “applicant’s age and sex had apparently been decisive factors in lowering the compensation (…).”
Portugal has been criticised for the failure to properly publish first instance court decisions and make them accessible to the public. Even the decisions of higher courts have not been published in their entirety, with the criteria for the selection of those that were not published lacking transparency. The authorities have since come up with an ECLI database integrating first instance decisions. In 2022, the Council of Europe’s Group of States against Corruption (GRECO) concluded that the legal framework had been put in place and the necessary resources have been earmarked to secure the restructuring and maintenance of the database. There were still issues, however, with accessibility for the public.
In its 2023 Rule of Law Report, the European Commission called for continued efforts to strengthen the transparency of allocation of cases, acknowledging significant progress in setting up rules for electronic allocation.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2023 Rule of Law Report, Portugal has made:
- Some progress on continuing efforts to ensure adequate human resources of the justice system, in particular regarding non-judicial staff, and some further progress in improving its efficiency, in particular of Administrative and Tax Courts.
- Significant further progress on continuing efforts to strengthen the transparency of
allocation of cases, in particular by monitoring the implementation of the new rules on
electronic allocation. - Some further progress on continuing to ensure sufficient resources for preventing,
investigating and prosecuting corruption, including for the new Anti-Corruption
Mechanism. - Some further progress on ensuring the effective monitoring and verification of asset
declarations by the Transparency Entity. - Some further progress in finalising the reforms to improve the transparency of law-making, particularly on the implementation of impact assessment tools.
On this basis, and considering other developments that took place in the period of reference,
and in addition to recalling the relevant commitments made under the Recovery and Resilience Plan, it is recommended to Portugal to:
- Step up efforts to ensure adequate human resources of the justice system, in particular regarding judicial clerks, and continue efforts to improve its efficiency, in particular of
Administrative and Tax Courts. - Take measures to ensure the adequacy of the general criminal procedure legislation to efficiently deal with complex criminal proceedings.
- Continue efforts made to ensure sufficient resources for preventing, investigating and
prosecuting corruption, including for the new Anti-Corruption Mechanism. - Ensure the effective monitoring and verification of asset declarations by the Transparency Entity.
- Finalise the reforms to improve the transparency of law-making, particularly on the implementation of impact assessment tools.
European Commission, Rule of Law Report, 2024
Overall, concerning the recommendations in the 2022 Rule of Law Report, Portugal has made:
- Some progress on continuing the efforts to ensure adequate human resources of the justice system and to improve its efficiency, in particular of Administrative and Tax Courts, and full implementation regarding the finalisation of the legislative framework for the functioning of the High Council for Administrative and Tax Courts.
- Significant progress on continuing the efforts to strengthen the transparency of allocation of cases.
- On this basis, and considering other developments that took place in the period of reference, and in addition to recalling the commitments made under the National Recovery and Resilience Plan relating to certain aspects of the justice system, it is recommended to Portugal to:
- Continue efforts to ensure adequate human resources of the justice system, in particular regarding non-judicial staff, and to improve its efficiency, in particular of Administrative and Tax Courts.
- Continue efforts to strengthen the transparency of allocation of cases, in particular by monitoring the implementation of the new rules on electronic allocation.
Adopted by GRECO at its 91st Plenary Meeting (13-17 June 2022)
Recommendation vi.
GRECO recommended that i) the role of the judicial councils as guarantors of the independence of judges and of the judiciary is strengthened, in particular, by providing in law that not less than half their members are judges elected by their peers; and ii) information on the outcome of disciplinary procedures within the judicial councils is published in a timely manner. [NOT IMPLEMENTED]
Recommendation vii.
44. GRECO recommended that at least half the members of the authorities taking decisions on the selection of second instance court and Supreme Court judges are judges elected (or chosen) by their peers. [PARTLY IMPLEMENTED – with respect to appeals court judges, judges are now selected by a panel of which half the members are judges chosen by their peers, so the recommendation has been met. With respect to the Supreme Court judges, judges were still in the minority in the panel taking decisions on their selection]
Recommendation viii.
49. GRECO recommended ensuring that periodic evaluations of first instance court judges and inspections/assessments of second instance court judges ascertain, in a fair, objective and timely manner, their integrity and compliance with the standards of judicial conduct. [PARTLY IMPLEMENTED]
Recommendation x.
55. GRECO recommended that final first instance court judgments are made easily accessible and searchable by the public [PARTLY IMPLEMENTED – the legal framework has been put in place and the necessary resources seem to have been earmarked to secure the restructuring and maintenance of the ECLI database which is a repository of all final first instance court judgments. However, the part of the database covering all final first instance court judgments is not yet operational, which means these decisions have not yet been made public]
Recommendation xi.
61. GRECO recommended that i) clear, enforceable, publicly available standards of professional conduct (covering e.g. gifts, conflicts of interest, etc.) are set out for all judges and used inter alia as a basis for promotion, periodic evaluation and disciplinary action; and that ii) awareness of the standards of conduct is promoted amongst judges through dedicated guidance, confidential counselling, and initial and in-service training [NOT IMPLEMENTED]
Recommendation xiii.
- 69. GRECO recommended ensuring that periodic evaluation of prosecutors attached to first instance court and inspections/assessment of prosecutors attached to second instance courts ascertain, in a fair, objective and timely manner, their integrity and compliance with the standards of professional conduct.
- 70. GRECO recalls that this recommendation was not implemented in the Second Interim compliance report due to the lack of norms governing prosecutorial conduct (cf. recommendation xv below) and the insufficient criteria underpinning current evaluations/appraisals. Moreover, substantial delays in carrying out evaluations had not been dealt with.
- 71. The authorities reiterate the same information regarding the substantive element of the recommendation. Regarding delays in periodic inspections/evaluations, they indicate that, on 30 November 2021, the High Council of the Public Prosecution appointed three more prosecutors as inspectors of the Public Prosecution Service specifically to tackle existing delays. Moreover, all prosecutors who have not been inspected in the last eight years or more have been included in the 2021/2022 inspection/evaluation plan. A process of catching up on the most overdue inspections/evaluations is therefore under way. Between September 2021 and May 2022, 161 inspections/evaluations of public prosecutors were carried out.
- 72. GRECO notes the adoption, publication and entry into force of a Code of conduct for public prosecutors (cf. recommendation xv below). However, whether this Code and the integrity standards it contains can also be used as a basis/criteria for promotion and evaluation of public prosecutors remains to be clarified. That said, steps are being taken to address and overcome substantial delays in carrying out evaluations, in light of which GRECO can accept that the recommendation has now been partly complied with.
- 73. GRECO concludes that recommendation xiii has been partly implemented.
Recommendation xv.
74. GRECO recommended that i) clear, enforceable, publicly-available standards of professional conduct are set out for all prosecutors and used inter alia as a basis for promotion, evaluation and disciplinary action; and ii) awareness of the standards of conduct is promoted amongst prosecutors through dedicated guidance, confidential counselling, and in the context of initial and in-service training [PARTLY IMPLEMENTED – The code of conduct adopted and published. The Ethics Unit of the High Council of Public Prosecution is responsible for monitoring the implementation of the Code and issuing opinions and recommendations on the prosecutors’ compliance with it. However, it was not clear if the Code breaches carried sanctions and whether the Code could be used as a basis for promotion and evaluation. The government also did not provide the information about integrity trainings for prosecutors]
Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Moderate
Implementation record
15
39 %
61
months
Judgements with pending implementation
Selected on relevance to the judiciary / rule of law
Vicente Cardoso v Portugal
This group of cases concerns the excessive length of the proceedings in the civil courts of first instance, including enforcement proceedings, and in the administrative courts (violations of Article 6). The domestic proceedings were conducted at various periods between 2003 and the present day.
The last examination by the Committee of Ministers took place in September 2021. The Committee noted with concern the worsening of the situation as regards the length of administrative and tax proceedings; in this context, noted with interest the recent promising additional measures adopted by authorities, invited the authorities to provide their assessment of underlying reasons for the difficulties, invited them to closely monitor and provide specific information on the impact of the measures adopted, including on the actual increase of the overall number of judgments, prosecutors or auxiliary staff dealing with civil enforcement cases or administrative and tax cases, and take additional action required to ensure a durable decrease in the overall duration of the proceedings and to consider all useful measures to reduce the backlog in the area of administrative and tax proceedings.
The authorities submitted a revised action plan on 19 October 2022.
30130/10
12-03-2013
Dos Santos Calado and others v Portugal
Excessive formalism on the part of the Constitutional Court in declaring constitutional appeals lodged in the context of administrative disputes inadmissible for failure to comply with the legal requirements, thus depriving the applicants of their right of access to a court (violation of Article 6§1). An action review was submitted on February 26, 2021 (DH-DD(2021)273).
The authorities point out that the problem in the present case arises from the way in which two specific cases were examined by the Constitutional Court. In addition, they point out that the European Court itself accepted in a recent case that the conditions of access to the Constitutional Court could be stringent, considering it to be the highest judicial body. They cite the Court’s decision in Albuquerque Fernandes v. Portugal, No. 50160/13, which states: “Having regard to the specific nature of appeals to the Constitutional Court, the Court accepts that the conditions of access to that court may be stringent in order to guarantee legal certainty and the proper administration of constitutional justice at the highest level of the judicial hierarchy”.
The ruling has been published and distributed to the magistrates of the Constitutional Court.
55997/14
Ramos Nunes de Carvalho E Sa v. Portugal
The case concerns three sets of disciplinary proceedings against the applicant, who was a judge at the time. The High Council of Justice ordered her to pay a fine and suspended her from her duties. The Litigation Division of the Supreme Court upheld the Council’s decisions, ruling in particular that it was not for it to reassess the facts, but rather to examine whether the Council’s establishment of the facts had been reasonable. The European Court found that the inadequacy of the control exercised by the Supreme Court, as regards the re-examination of the facts, as well as the absence of a hearing (either before the Council or before the same Supreme Court), constituted a violation of Article 6 § 1, but rejected the applicant’s allegations concerning the Supreme Court’s lack of independence and impartiality.
A revised action statement was submitted by the authorities on January 16, 2020 (DH-DD (2020)52). The authorities provided updated information on 20/11/2023 (DH-DD (2023)1428).
The ruling has been published, communicated to the High Council of Justice, the Attorney General of the Republic, the President of the Supreme Administrative Court and the President of the Supreme Court of Justice for dissemination. It will also be included in the magistrates’ training program.
The Statute of Judicial Magistrates came into force on January 1, 2020 (Law n. 67/2019). With regard to disciplinary proceedings before the Council, the new Statute contains a provision allowing for the possibility of holding a public hearing already in the administrative phase before the Council, regardless of the seriousness of the case (article 120).
On the other hand, it will also be possible to hold a hearing and produce evidence on the facts at the jurisdictional stage before the Supreme Court (litigation section).
55391/13
06-11-2018
Moreno Diaz Pena and others v Portugal
This case concerns the excessive length of expropriation proceedings, between 1983 and 2010, and the lack of an effective remedy in this respect (violations of Articles 6 and 13 of the Convention), as well as the subsequent violation of the applicants’ right to respect for their property, due to the unreasonable level of compensation awarded following the expropriation of land that had belonged to their mother (violation of Article 1 of Protocol No. 1).
44262/10
04-09-2015
Moreira Ferreira v Portugal
The Court held that the Court of Appeal, which was competent to examine both the facts and the law, had before it a number of questions relating to the facts of the case and to the applicant’s person, which it could not resolve without a new and full hearing of the applicant. It concluded that a public hearing before the appeal court was therefore necessary (violation of Article 6 § 1).
The authorities provided an updated action statement on July 17, 2019. Subsequently, the authorities clarified that additional measures, of a legislative nature, were under consideration, to ensure non-repetition of the violation.
19808/08
05-10-2011
Pereira Cruz and others v Portugal
The case concerns the conviction of the applicants in the context of a criminal investigation into a pedophile ring. The Lisbon Court sentenced them to prison sentences ranging from 5 to 7 years. The Court of Appeal, which upheld the judgment, refused to admit evidence in favour of the first applicant, Mr Pereira Cruz, in the proceedings before it. It also refused the applicant’s request that other of the defendants be heard (violation of Article 6 §§ 1 and 3 (d)).
An updated action plan was submitted by the authorities on 21 January 2022 (DH-DD(2022)111).
General measures: The judgment was published, translated and disseminated, in particular to the High Judicial Council and the Attorney General of the Republic. It was also sent to the Centre for Judicial Studies for inclusion in the training programmes for magistrates.
As regards the question of the failure of the court of appeal to hear other of the defendants in person, the authorities refer to the general measures under examination in the case of Moreira Ferreira (no. 19808/08).
56396/12
26-09-2018