copy the linklink copied!2. Towards a smart justice system in Portugal

Vision for justice transformation in Portugal

In Portugal, recent years have seen the emergence of an ambitious programme to drive the transformation of the justice sector. Recent initiatives include the Justiça + Próxima programme and more specifically the Tribunal + project and the horizontal project, Simplex +.

Important examples prior to these efforts include: the 2008 Law on the Organisation and Functioning of Judicial Courts;1 the measures taken within the context of the 2011 Memorandum of Understanding on financial assistance with the International Monetary Fund (IMF) and the European Union (EU), such as the new Code of Civil Procedure;2 and the 2013 Law on the Organisation of the Judicial System3 (Box 2.1).

The programmes seek to ensure that justice services are efficient, agile and innovative, but also accessible and humane. They also aim to upgrade the capacity of justice stakeholders, including courts, to interact with and respond to the needs of its constituents.

This and subsequent chapters take stock of the progress made by the Portuguese government on this journey, based on good practices in OECD countries. In particular, this chapter provides an overview of high-level strategies and approaches adopted by the Government of Portugal to modernise the justice sector, in line with the overall vision for an efficient, agile and user-centred public sector.

Strategy for justice transformation in Portugal

Portugal has been employing a sophisticated approach to the overall public sector transformation, including in the justice area (Figure 2.1). It is one of the OECD countries integrating elements of administrative simplification, service improvement and digital strategies, with a view to improving citizen-centricity in the justice sector. By following this approach in the justice area, Portugal is aspiring to transform the way that justice is delivered to people and businesses in order to:

• create a better business climate

• strengthen trust in justice institutions and improving the perception of justice

• strengthen the transparency of justice through improved service

• improve responsiveness and efficiency of services and meeting budget constraints

• bring justice closer to people.

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Figure 2.1. Portugal’s strategies for justice transformation

The main strategic documents regarding the government’s action in the domain of justice include (Figure 2.1):

• The Government’s Programme, which sets out the main political guidelines and measures to be developed in the various areas of governmental activity, including the domain of justice. The Programme of the XXI Government makes the commitment to render justice more agile, by assuming a management perspective with a view to modernisation, simplification and rationalisation. This commitment is structured in five different sets of concrete measures. A first set aims at: improving the management of the judicial system and comprises, for instance, the implementation of a productivity incentive scheme for courts; the development of information and communication technology (ICT) tools for court and workload management; the possibility of reallocating cases according to the “natural judge” principle;6 and the introduction of a “Simplex philosophy” for courts. A second set of measures looks to relieve congestion in courts and focuses mainly on the reinforcement of alternative dispute resolution (ADR). A third set of measures intends to simplify and dematerialise judicial procedures and the fourth to bring justice closer to citizens, including the implementation of a new attendance service for citizens and the adoption of plain language in essential procedural acts. Finally, the government commits to measures aiming to improve the quality of the administration of justice, promoting, for instance, the training of judges and court clerks and the improvement of legal aid.7

• The Major Planning Options, which translate the government programme into concrete action, define the main strategic guidelines for the country’s economic and social development policy. Every year, the government must submit to the parliament a bill establishing major planning options, together with the budget proposal. For 2019, the options include, among several others: the reinforcement of ADR (in view of developing a platform for managing pending cases in justice of the peace courts and arbitration centres); the continuous upgrade of the information systems that support courts (the administrative and fiscal courts information system SITAF and web portal Citius) with the creation of new functionalities; the development of an online Justice Digital Services Platform; the development of a Justice Hub, composed of three competency centres: i) a Security Operational Centre (for managing, monitoring and ensuring security in information systems); ii) a Digital Transformation Centre (for monitoring and developing internal procedures aiming at digital transformation); iii) a Centre for the Modernisation of Infrastructures. Once approved by the parliament, the government develops specific plans in different sectors, including justice.

• The National Reform Programme is also an essential element in defining a medium-term strategy to enable Portugal to launch a set of structural reforms to promote the relaunching of investment and contribute to the sustainability of public finances by 2020. Over time, integrating justice-related elements into such plans can help demonstrate its impacts on the economy, investment and business climate.

In line with good international practices (Box 2.2) and to support the implementation of a high-level vision, the current government has developed several subprogrammes, including those that apply to the justice sector (discussed further below):

• The Justiça + Próxima programme aims to develop a swift, transparent and human justice that is closer to and co-designed by citizens (see below).

• The Capitalizar programme integrates a set of 64 measures aiming to support the capitalisation of enterprises, the recovery of investment and the relaunch of the economy. The programme is divided into five pillars: i) administrative simplification and systemic framework; ii) taxation; iii) business restructuring; iv) leverage of financing and investment; and v) capital market promotion. Under the third pillar, some measures were adopted that directly involve courts, such as modifications made to the business revitalisation process. The programme specifically focuses on capitalising Portuguese enterprises by reinforcing equity and reducing their levels of indebtedness. This involves revision of the Insolvency Code, the introduction of an out-of-court Regime for Companies’ Recovery, and out-of-court repossession of the collateral (pledge) legal framework, the creation of a Business Recovery Mediator Regime (a new class of professionals to help small- and medium-sized enterprises (SMEs), the strengthening of the legal regime for debt to equity swap (by giving creditors a chance to save companies with or without the equity holders’ agreement), and the setting up of an Early Warning Regime and electronic proceedings for insolvency cases.

• The Simplex + programme aims to modernise public administration and was launched by the current government to further the action of the initial Simplex programme introduced in 2006 (see below).

Pillar 1. Simplification

Simplification efforts in the justice sector are primarily developed through the Simplex + programme. Launched in 2016, Simplex + is a cross-cutting programme composed of a set of measures that aims to ensure the simplification of administrative and legislative processes in order to facilitate citizen and business interaction with the administration. Similar to its predecessors, the programme contributes to increasing the internal efficiency of the public services leading to shorter response times to citizen and business requests made to public authorities. Selected justice-related measures developed through Simplex + include (Box 2.4):

• Interoperability of information through dematerialisation of data support and introduction of e-channels between courts, other justice institutions and other entities in the social security, health, education and security sectors.

• An online certificate for legal entities to enable fast delivery.

• The simplification of court fee payment, waving the need to join paper-based documents certifying payment.

• The development of a judicial costs simulator, the possibility of requesting criminal record certificates online, by authenticating with the Citizen Card or the Digital Mobile Key, made available on the portal once the fee has been paid (Ministry of Justice of Portugal, n.d.).

• The implementation of electronic proceedings between tax administration and administrative and fiscal courts.

• User-subscribed SMS or email alerts for the renewal of citizen cards, driver’s licenses, passports, or online certificates for legal entities.

• Online consultation by citizens of their judicial cases.

• The simplification of court notifications and writs of summons, ensuring they are legally accurate and comprehensible for citizens, etc.

The underlying objectives of these efforts include improvements to public sector efficiency and effectiveness, support for the development of the business climate and collecting data from citizens and businesses following the “once only” principle. The main aim of these efforts was to identify and target concrete problems in different sectors of the economy.

The project was designed to meet the needs of public service users, thus putting people and businesses at the centre by consulting them during the programme’s design and implementation. The consultation method aimed to integrate the inputs of various stakeholders. In addition to workshops held throughout the country with citizens and businesses, the Simplex + website offered citizens the possibility of presenting innovative ideas to be evaluated for inclusion in the project. In 2017, aiming at further participation of public administration staff, Simplex Jam was introduced as a methodology to generate new ideas for improving public services by creating joint teams from different public administration departments. Simplex + builds on an original bottom-up approach in which rationalisation opportunities were identified through public consultations (see below).11

Simplex + has introduced a charter of principles, some of which included:

1. 1. Public administration affairs immediately processed and followed up at a single point of contact for citizens and businesses.

2. 2. Public services accessed online or at a nearby counter.

3. 3. Availability of documents online.

4. 4. Information given to public administration following the “once only” principle.

5. 5. Easy access to public information.

6. 6. Online authentication in a safe and user-friendly manner.

7. 7. Services scheduled online.

More recently, Simplex + activities are being structured according to different life events: birth, health, education, vehicles, work, business, home, family, retirement and death, with three transversal events, leisure, lifelong events and more efficient public administration.

According to Portuguese officials, Simplex initiatives have also been undergoing detailed assessment in relation to their implementation and delivery of results (see section on evaluation and monitoring).

Moreover, simplification measures extend beyond the Simplex + programme. Thus, as part of the Justiça + Próxima programme, parties are now exempt from sending proof of court fee payments to the court, as they are automatically validated by a specific code (Documento Único de Cobrança), making for more automation and thereby reducing the number of documents to be added to the pleading. This innovation also leads to the simplification of the preparation of the final liquidation of court fees of the judicial case.

Pillar 2. Digital solutions

Similar to other government services, justice systems in many places around the world have begun to use digital tools. As part of the Justiça + Próxima programme, Portugal is increasingly employing IT applications in the justice system, including for case management, e-filing, document management, digitalisation of courtroom functions, human resources management (HRM) tools, help desk and public information systems, in order to facilitate the accessibility of justice, especially in courthouses. The current efforts – led by a range of stakeholders across public institutions (Box 2.5) – can be presented as follows:

• Digitalisation (dematerialisation) of case management and information – Dematerialisation of cases aims to make the relevant documents easily accessible to different users, with the option to read and annotate as appropriate. Over the past decade, Portugal has been investing in the dematerialisation of case management and information, including the Citius electronic platform, which seeks to provide a single online solution for judges, public prosecutors, lawyers, solicitors, enforcement agents and insolvency practitioners. Citius involves the modernisation of core IT systems in the courts, including judicial electronic processes from courts of first instance to the Supreme Court and more than 100 technological features in all magistrate information systems. A similar platform (SITAF) has been developed in the administrative and fiscal jurisdiction, introducing digital transmission of tax proceedings from administration to administrative and fiscal courts, an innovative feature. The introduction of the digital case file in Portugal facilitates streamlined processes, improves their quality (by reducing manual work) and reduces the costs related to production and storage of files. The adoption of SITAF would bring Portugal closer to paperless working, which can be strengthened once all courts are equipped with the relevant technologies. Combined with the process of rethinking and streamlining procedures (also as part of Simplex +), these measures have the potential to improve the speed of case processing and thus enhance both efficiency and access to justice for people.

• Online platforms – The new digital e-services platform www.Justica.gov.pt provides an integrated platform for all sites and eServices of justice, including cost simulators for different proceedings as well as 120 datasets of statistical information. In addition, since November 2018, all cases are accessible to parties and authorised persons through www.Tribunais.org.pt. The authorities have also introduced a range of initiatives to strengthen communication with external stakeholders, including a newsletter, a direct channel for submitting ideas and the requirement for authorities to provide feedback.

  Access to information and communication – Portugal has been taking active steps to improve access to information and communication by key stakeholders. Since 2017, parties have the possibility to consult their cases pending before judicial, administrative and fiscal courts, including enforcement cases. Moreover, the launch of a new online portal and the enforcement of the use of Citius for lawyers have enabled the courts to send writs of notice electronically, contributing to easier access to information. Lawyers should also be able to upload videos and audio to their case files, as well as receive notifications by email or text message in the event of postponement of a case hearing. It is also anticipated that citizens should be able to consult their online (from any location using electronic authentication on a web portal).

Importantly, in line with the philosophy of Simplex +, the Justiça + Próxima programme includes initiatives on clear language and information aimed at citizens, including the pilot “writing clear” in judicial processes. In particular, Portugal has introduced rules and norms for presenting judgments and listing the grounds given by the judge. For example, it has implemented “standardised” judicial documents, which aim to make it easier for judges to draft decisions and for litigants to understand them (Ministry of Justice of Portugal, 2017) (Figure 2.2).

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Figure 2.2. Payment order template

Source: Ministry of Justice of Portugal, 2019.

The introduction of these tools also aims to help the country and its courts, non-judicial mechanisms and legal aid/assistance to face current pressure on available resources effectively. It can support courts in fulfilling their fundamental mission for society by providing justice for all, an objective mirrored in UN Sustainable Development Goal (SDG) target 16.3, to which Portugal has committed under the 2030 Agenda for Sustainable Development. Indeed, Portugal has obtained increasingly significant scores in all areas of integration of technology in court operations – defined by the European Commission for the Efficiency of Justice (CEPEJ) as the direct assistance to judges and court clerks, support for court administration and management, and support for interaction/communication between courts and parties – since 2010.12 In fact, Portugal is considered as one of the most advanced countries in Europe in terms of digitalisation in the justice sector (CEPEJ, 2018).

Current transformation efforts in Portugal provide a strong foundation to further mobilise technological capabilities, through emerging technologies (such as artificial intelligence and blockchain) to build a digitally-enabled, seamless, people-centred justice ecosystem. In line with good practices increasingly found in OECD countries, such an ecosystem could integrate both judicial and alternative mechanisms to resolve disputes, support effective triage of cases and enable multichannel dispute resolution avenues.

Portugal is currently preparing a basis for establishing online systems that could support the resolution of disputes. These systems could help diagnose the legal problems of citizens and businesses, and inform them of their rights and options in order to help protect them and resolve their disputes by using big data. They can also provide an assisted negotiation stage, which could be followed by a seamless transition to an adjudication, depending on the nature of the dispute and involved stakeholders. This type of one-stop-shop for dispute resolution can facilitate the creation of a justice ecosystem and transform the resolution of disputes (Taskforce on Justice, 2019).

To take the “one-stop justice shop” further, the initiative is scheduled to be linked to the existing citizens’ portal to facilitate early identification of problems and provide a unique interface for citizens. Interoperability of data and big data could also help in this regard. The single digital Citizen Card and recently introduced Digital Mobile Key in Portugal could be extended to legal and justice services to enable greater accessibility of such services and shift their focus on the preventive and restorative facets.

In addition, in order to maximise the impact of transformation efforts and enable judges to focus more on the adjudication of complex cases (which require a certain level of scrutiny and consideration), Portugal may consider developing a holistic service delivery system that integrates alternative dispute resolution (ADR) mechanisms to ensure that courts do not consider unnecessary cases. Portugal, like other OECD countries, has already adopted a number of important initiatives in this regard, by establishing common and integrated online platforms for different ADR channels, and planning the integration with the court platform (Box 2.6). This would serve as a strong basis for developing an integrated triage system for resolving disputes.

Finally, in view of the broader strategic objective of Portugal to facilitate sound business climate and user-centricity, there is scope to link legal services and dispute resolution for businesses to the online business portal. To be effective, these efforts should be underpinned by a systematic survey of business legal needs, experiences and barriers in resolving disputes in order to help Portugal to tailor further its initiatives and services, supporting efficient dispute resolution for an effective business climate.

Pillar 3. Fostering justice innovation

Justice innovation can play an important role in boosting productivity and citizen responsiveness as well as finding solutions to complex problems. Portugal is investing special efforts to promote a culture of innovation to transform the nature of service delivery and identify new solutions to complex challenges, such as promoting social and territorial cohesion. One example is a property one-stop-shop pilot project tested in 14 municipalities. After significant fires affected the Portuguese territory in 2018, the authorities recognised the lack of information about landowners and property boundaries, also affecting other areas of governance, such as finance (taxation), agriculture and the environment. To address these gaps, the authorities have created an electronic platform linking owners and public administration in order to provide, through interoperability, a one-stop shop to access the integrated information of several public entities and to promote property identification and facilitated data modification. A deductive model was first created, listing properties and land according to information available in different public administration databases, both central and local (Box 2.7). The model allowed the development of an algorithm capable of identifying new properties and their characteristics.

In parallel, to foster further the spirit of innovation in the justice sector, the authorities are adopting modern tools, such as the establishment of the Justice Innovation Hub (Box 2.8). In addition, the Ministry of Justice introduced new ways of working in a more collaborative environment by creating an innovation room as a place to hold brainstorming sessions, discussions and workshops.

The ministry also reports implementing agile methodologies to introduce change and question the status quo whenever possible, with a view to enhancing flexibility and efficiency in managing resources, contributing to a more productive work environment and setting up efficient communication channels between the parties involved. In particular, it reports using different management improvement techniques (e.g. Kaizen) in courts in order to promote continuous improvement and to stimulate a new environment and culture among the courts and clerks.

Judicial map

The location of courts directly affects the distance citizens must travel for justice, the judicial caseload and potential backlog, the public monies required to staff or resource courts, and the quality and performance of services. A properly drawn judicial map can optimise case flow and improve co-ordination between judges at different offices. Reforming the judicial map calls for an understanding of how litigation is distributed in terms of volume, type and proximity and the efficiencies or shortcomings in court performance and its users. In particular, by using an overview of the current map and case flow, a list of court objectives and measurable performance indicators, one can ensure a judicial map operates effectively and provides equal access to justice (CEPEJ, 2013) (Box 2.9).

The structure of the judicial map has undergone multiple reforms over the last years in Portugal, including the 2013 reform, which consolidated the country’s 231 judicial courts of first instance into 23 district clusters. In this context, the Justiça + Próxima programme, in turn, envisages a series of measures to further optimise the judicial map, which aim to alleviate some concerns about the growing concentration and centralisation of courts, in view of the distance between the courts and some population living in remote areas. In particular, authorities report re-evaluating the judicial map,13 reopening several small courts14 and strengthening court capacities for video conferencing15 and other equipment.

Furthermore, in order to improve court infrastructure to accommodate the reforms – among other initiatives16 – Portugal has introduced a Strategic Multi-Year 2018-28 Plan for Improvement and Modernisation of Courts, which was developed through a series of public discussions and includes measures to strengthen physical infrastructure, human resources and the use of technology in courts.17

Finally, in response to concerns about the resulting discontinuity in data at court district level (OECD, 2019), the Portuguese authorities report that most of the data was recovered and data collection resumed in late 2015/early 2016 after a series of consistency tests.

It would be important to evaluate the impacts of these initiatives on the accessibility of justice services, quality of justice infrastructure and data collection processes.

Court specialisation

The experience of OECD member states shows that specialised courts can enhance the timeliness and improve the quality of justice services (Box 2.10). These courts provide dedicated services to deal with technical or community-related matters and are often used to improve efficiency by allowing judges to deepen knowledge in specific areas of law, reducing judicial workloads in general courts of first instance and providing a consistent and accurate interpretation of the law.

In Portugal, the 2013 Law on Judicial Organisation placed an emphasis on various types of specialisation, introducing a new model of competencies (specialised courts and divisions in all territory, not only in urban centres). The grouping in clusters has allowed greater specialisation of courts. Notably, specialisation was in many instances achieved through specialised “local sections or branches” (e.g. commercial courts are not standalone courts but branches within a district court; thus, 16 courts specialising in commercial cases compared to the 4 prior to the reform, are all local sections or branches). Authorities report that the number of labour sections has also increased and they now cover 70% of the territory (a significant increase from 20%). Overall, the reform also increased the number of family and juvenile courts, criminal instruction courts, enforcement courts and commercial courts. To serve in specialised courts, judges should have at least ten years of experience.18 Greater investment in specialised judicial training could further help to maximise the effectiveness of these reforms (OECD, 2019).

Another important dimension of judicial specialisation is enabling judges to focus on adjudication and to limit auxiliary tasks (such as case preparation and management, research and drafting of administrative documents). As shown in the 2019 OECD Economic Survey of Portugal, evidence from OECD countries and Portugal indeed shows that judicial decision-making can significantly speed up if judges are supported by legal assistants/clerks (OECD, 2019), which is currently limited in Portugal.

Management of the judiciary and courts

The measures brought forth by the Justiça + Próxima programme also involve steps to strengthen management of the judiciary and courts, including fiscal and administrative matters, the most significant being the implementation of a case management indicators system in administrative and tax courts.

Portugal has recently introduced a new model of court management, which aims to improve overall efficiency and performance (administrative tasks traditionally belonging to the judge president of each court are now allocated to the court administrator and registrar, thus leaving judges free to exercise their technical legal competencies). This model was introduced with a view of strengthening the quality of management processes in the judiciary. Each district (comarca) is headed by a management committee consisting of a president judge (designated by the High Council), a judiciary administrator (designated by the presiding judge among candidates previously selected by the Ministry of Justice) and a representative of the general prosecutor (designated by the High Council of the Public Prosecution). Each party has its own powers and the presiding judge must communicate with the High Council of the Judiciary, the co-ordinating prosecutor with the High Council of the Public Prosecution, and the judiciary administrator with the Ministry of Justice (through the Directorate-General for the Administration of Justice – DGAJ). The administrator, with the general orientation of the presiding judge, can temporarily or permanently relocate court clerks inside the county and under the limits legally established. The presiding judge can propose to the High Council the reallocation of judges or of cases, aiming to even the workload of judges and the efficiency of the court.19 The co-ordinating prosecutor can reallocate cases and can propose to the High Council of the Public Prosecution the reallocation of public prosecutors.

The committee has the authority to:

• approve the semi-annual and annual reports

• approve a draft budget of the judicial demarcation (comarca, based on the pre-determined allocation) to be submitted to the Ministry of Justice

• propose budget modifications

• approve a proposal for the modification of the staff map to be submitted to the Ministry of Justice;

• monitor budget execution.

The measures under the Justiça + Próxima plan (see Annex A for the discussion of roles and responsibilities) also offer the High Council for Administrative and Tax Courts and the Attorney-General Office tools to monitor and evaluate the activity of the courts, contributing to a speedy reaction and within their competencies. The Justiça + Próxima plan also aimed to enable the:

• implementation of an information system to support planning, management and decision-making of district court management bodies

• implementation of an electronic system to manage the distribution and booking of courtrooms.

In 2013, the tax and administrative court territory was divided into four different zones, each presided by a judge. At the court level, the authority lies with the presiding judge of each court of first instance and the judicial administrator (in courts with more than ten judges) or with the secretary of the court (in courts with less than ten judges). At the national level, the management powers for administrative and tax courts of first instance lie with the High Council for the Administrative and Tax Courts. The High Council does not have the competency to set strategic performance goals for courts of first instance but has a number of managerial competencies, in co-operation with the Ministry of Justice, such as setting a caseload and timelines for judges and establishing the criteria for assigning cases to judges.

Experience of OECD and partner countries suggests that judicial efficiency is considered to be affected by other factors such as resources and governance in courts. Improving resource management and good governance within courts can reduce trial length without reducing the quality of judicial decisions (Palumbo et al., 2013). In Portugal, the new court management model has a strong potential to improve overall efficiency and performance. To maximise the impact of the new approach, in line with international evidence (e.g. Palumbo et al., 2013), Portugal may consider options for granting greater autonomy for court presidents, including financial autonomy and budget management matters, in order to support them in achieving the objectives for which they are accountable. For example, court presidents could have greater responsibility for case flow management, including through reporting to the High Council of the Judiciary on very complex cases. Maintaining flexibility, such as the possibility for court presidents to relocate judges to more congested courts, could also help resolve any remaining bottlenecks, also in view of different workloads across the court (Pereira and Wemans, 2017; OECD, 2019).

Importantly, in accordance with growing evidence (e.g. Palumbo et al., 2013), governance of the justice sector matters to ensure the effective functioning of the system. Portugal has recently aligned itself with an increasing international tendency to improve the performance of courts and individual judges through court management mechanisms. In Portugal, Articles 90 and 91 of the Law on the Organisation of the Judicial System (Law no. 62/2013, of 26 August) mandate the High Judicial Council, the General Prosecutor and the government (Ministry of Justice) to establish procedural objectives for the judicial courts of first instance and prosecutors. Procedural objectives are triennial productivity objectives for each magistrate. Those objectives may be for the whole national territory or specific to each judicial demarcation (comarca). The notion of procedural objectives is mainly quantitative (i.e. the number of trials or judicial processes held and their duration) but some case weighting is also mandatory (qualitative notion), as Article 91 determines that, among other factors, the nature, complexity and amount (money at stake) of the cases have to be taken into account while assessing the productivity (i.e. the human and other resources employed in the achievement of the “referential procedural values”).20

Similarly, management of judicial human resources plays an important role in improving the performance of the judiciary. In Portugal, performance appraisal of judges is done by an inspection body (Judicial Assessment Service), which consists of 20 inspectors who are mainly former judges from the Courts of Appeal, with more than 20 years of experience as judges.21 The regular performance appraisal of judges is carried out after his/her first year in office and then every four years. The appraisal involves a detailed report with a mark proposal, which has to be ratified by the High Judicial Council, prior to a hearing of the incumbent. The decision of the High Judicial Council may be appealed before the Supreme Court, although, according to the interviewed stakeholders, the appeals appear to be rare.

To strengthen the positive performance impact of the appraisal process and to align the appraisal criteria to the stated objectives of better court management, Portugal may have an opportunity to reflect on the current appraisal processes and indicators with a view to further alignment (e.g. by enhancing attention to quantitative indicators while introducing sound case-weighting mechanisms). In this context, the High Council of the Judiciary approved in 2016 a new regulation for inspections, setting evaluation criteria,22 which is binding to inspection activities. In particular, the regulation suggests to take into account the following criteria – inter alia:

• Productivity (i.e. the resolution rate, which is obtained by dividing the number of processes concluded by the number of processes entered in the same year, and the recovery rate, which is the relationship between closed files and the sum of pending and new files).

• Decision deadlines and procedure lengths, as well as a judge’s contribution to annual goals.

Along with these criteria (productivity and speed), Portugal may consider introducing transparent and negotiated case-weighting criteria and a more or less automated distribution of cases, within the limits of the principle of “natural judge”.

Administrative and fiscal procedure reform

There are a number of measures included under the Justiça + Próxima plan to modernise administrative and fiscal procedure:

• The One-Stop Shop of the Administrative and Fiscal Courts (Balcão Único) started as a pilot project in Sintra and was replicated in all other administrative and fiscal courts from the 1^st of January 2018. It allows citizens in any administrative and fiscal court to obtain information and certificates on pending cases, to deliver procedural documents and to consult cases, regardless of the court in which the case is pending.

• The mandatory electronic filing of cases and documents for lawyers and the availability of electronic notifications.

• The extension of SITAF to all superior courts (central administrative courts and the Administrative Supreme Court).

• The above-mentioned implementation of a case management indicators system to administrative and tax courts, offering the High Council for the Administrative and Tax Courts and the Attorney-General Office tools to monitor and evaluate the courts’ activity, making for greater efficiency and reactivity within their competencies.

These measures also build on waves of reforms of the administrative and fiscal procedure, most notably in 2001-04,23 which involved significant innovations in the administrative fiscal judicial organisation by reinforcing some taxpayer guarantees, simplifying the fiscal procedure, amplifying the traditional annulment jurisdiction of administrative and fiscal courts, and giving the judges broader powers. Yet, in accordance with the different stakeholders, due to various constraints (such as limited human resources, namely judges and court clerks, insufficient training, transfer of pending cases to new courts and the malfunctioning of the SITAF information system), the new courts have become congested relatively quickly (Gomes and Fernando, 2017).

In 2015, the jurisdiction of administrative courts was extended to judge on a wider range of cases, for example, on administrative offences related to the violation of urban planning.24 The administrative procedure was also brought closer to the nature of the civil procedure.

In 2017, the authorities introduced a set of new measures to further rationalise and improve the administrative and fiscal procedure. These included the new25 and complementary26 establishment plans for judges for the administrative and fiscal courts, accompanied by a complementary establishment plan, the new establishment plan for administrative and fiscal court inspectors27 and introduced the One-Stop Shop for Administrative and Fiscal Courts (Balcão Único).28 These were followed by new measures implemented under the Justiça + Próxima programme, such as the extension of the possibility given to parties to consult their judicial cases to all proceedings pending in judicial and administrative and fiscal courts.29

In September 2018, the Council of Ministers approved five different legislative actions towards the reform of the administrative and fiscal jurisdiction: i) a draft law to amend the ETAF (the Statute of Administrative and Fiscal Courts), adopting the specialisation of first instance courts, a new management model and a new model for the court support office ;30 ii) a draft law to amend the procedural regimes of administrative and fiscal cases, aiming at its simplification;31 iii) a decree-law32 was approved, foreseeing special measures to reduce the backlog in administrative33 and fiscal courts; iv) an amendment to the Litigation Costs Regulation was approved,34 foreseeing a reduction of court costs if the litigant resorts to the use of approved forms (approved but not yet in force)35 to deliver claims and counterclaims; v) a draft law36 was approved in order to apply the fiscal enforcement procedure to enforced recovery of court costs.37

Alternative dispute resolution

Alternative dispute resolution (ADR) has become a central component of access to justice across OECD member and partner countries. ADR is seen as offering quicker and less expensive solutions, focusing on reconciling parties and offering them the chance of a compromised and sustainable resolution to their dispute and avoiding going to court and related expenses. While there is a growing variety of ADR mechanisms across OECD and partner countries, the most common forms include tribunals, Ombudsman scheme, arbitration, mediation, negotiation, whether court-annexed or not (Box 2.11). ADR mechanisms can also be specialised to meet diverse legal needs, i.e. based on the type of, nature of, or stakeholders to the dispute, e.g. business arbitration, family law mediation, small claims, administrative review, etc. Their binding nature also varies depending on the way they are enforced and incorporated into the country’s justice system.

Failing the recourse to or the success of ADR in resolving a dispute, such proceedings continue to allow parties to prepare for a future trial by gathering evidence, for instance. In turn, it can decrease the risks of delay and extra workloads for court personnel and contribute to overall court efficiency by reducing caseloads, limit judicial backlog, streamline trials and cut costs to the justice system.

The Directorate-General for Justice Policy (Direção-Geral da Política de Justiça, DGPJ) under the Ministry of Justice oversees the development of all ADR mechanisms (private and public) and support their functioning to some extent.

In Portugal, ADR mechanisms, i.e. Arbitration, Mediation and Justice of the Peace are becoming increasingly popular, and are part and parcel of the latest modernisation efforts:

• Arbitration – There are both public and private arbitration centres in Portugal,38 and – in accordance with the Barometer of Quality of Arbitration Centres – are viewed as beneficial in improving the efficiency of dispute resolution and reducing the backlog of court cases (DGPJ, 2018a). The DGPJ participates in the council of the privately run centres that are responsible for assessing its activities. The DGPJ has consultative powers in these councils, where it gives its opinion about the documents that the centre presents that will then be forwarded to the general assembly. As in many OECD countries, arbitration is specialised in Portugal. For instance, the ministry-supported centres offer services based respectively on consumer, automotive, insurance, industrial property, administrative and tax matters. Most recently the Administrative Arbitration Board, a nationwide private arbitration centre on public procurement, was established.39 The state and state entities may enter into arbitration agreements provided that the disputes concern private law (as opposed to public law). The Portuguese legislation provides a similar regime for domestic and international arbitration and extends arbitration to other fields such as tax disputes and, in limited cases, labour disputes.

• Mediation – Portugal has also established a public and private mediation system40 (including for family, labour and criminal mediation). Mediation is voluntary and takes place out-of-court. The Ministry of Justice compiles a list of mediators. No specific requirements are needed to register except when the mediator wishes to act within the public mediation systems.41 The ministry offers non-compulsory certified training. The DGPJ supervises state-run mediators, unlike privately run centres. The only exception goes to the private mediators signed on the list of private mediators managed by the DGPJ. There are 183 public mediators, as well as 566 private mediators signed on the list organised by the Ministry of Justice. The mediation agreement is enforceable directly under specific circumstances if the mediator is registered.42 The public mediation system is increasingly popular according to Portugal: 30% of family law cases were resolved through public mediation. Yet, while trending positively, public mediation services have the lowest overall satisfaction scoring with 8 out of 10, compared to 8.9 for arbitration and 9.4 for justice of the peace (DGJP, 2018b). Stakeholders also highlighted the importance of providing adequate resources and facilities and enhancing the speed of mediation (DGJP, 2018b). Further efforts to increase the take-up of mediation43 (DGPJ, 2018b) – possibly through strengthening incentives and communication (e.g. through greater court intervention) and expanding to other areas (e.g. commercial mediation) – would be beneficial in order to reach its full potential. Collecting data from private mediation systems would also allow mapping the extent of the popularity of this mechanism.

• Justices of the peace – Twenty-five justices of the peace have jurisdiction for small civil claims (up to EUR 15 000) excluding family, probate and labour matters. They can resort to mediation, conciliation or a simplified court hearing. The decision is appealable in the formal court system if the value exceeds EUR 2 500. Persons may now resort to mediation (except in class actions) and preliminary injunctions are now available.44 Justices of the peace qualify through a course of conflict mediation recognised by the Ministry of Justice or given by a training entity certified by the DGPJ. The use of the peace courts is subject to a one-time fee of EUR 70 to be borne by the unsuccessful party and the judge may also decide to divide this amount between parties. The use and success of mediation under this mechanism are incentivised under an agreement with the fee of EUR 50, divided between parties.

Such a mix of judicial and out-of-court services is the result of innovative public-public partnership between the justice sector and local authorities (with shared funding). This mechanism for resolving disputes is increasingly popular in Portugal, although remains limited in use (DGPJ, 2018c; UK Law Review, 2018).45 Between 2001 and 2014, approximately 82 500 claims were heard. There is also scope to strengthen this mechanism by ensuring that there is no overlap with other jurisdictions, greater efficiency (Figure 2.3) and merit-based decision-making (UK Law Review, 2018).46

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Figure 2.3. Justice of peace cases compared to court cases

Source: OECD (2019), OECD Economic Surveys: Portugal 2019, https://doi.org/10.1787/eco_surveys-prt-2019-en.

Since 2013 the Directorate-General for Justice Policy of Portugal overlooks the Barometers of Quality of Arbitration Centres, the Peace Courts and Public Mediation Systems (with the emphasis on procedural fairness, clarity and timeliness), assessing the satisfaction of their users,47 and is based on the CEPEJ Handbook for Conducting Satisfaction Surveys. Between 2013 and 2018, user satisfaction has slightly increased and has been stable since 2016, showing continuity in the quality of the public services (Figure 2.4).

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Figure 2.4. Public ADR satisfaction increased between 2013 and 2018

Note: Index: 0-10.

Source: DGPJ (2018a), Barometers of Quality of Arbitration Centres.

Developing a people-centred justice service ecosystem that reflects OECD criteria implies the requirement of countries to find ways to integrate ADR along with other resolution processes in a coherent and holistic justice sector vision while maintaining their empowerment (Figure 2.5). When centring service infrastructure and delivery on people’s needs, countries can help parties bring their dispute to the right forum. There is a strong potential to facilitate the development of such an ecosystem in Portugal with ADR +, the forthcoming case management platform. This initiative will aim to provide a common stage for justices of the peace in consumer dispute arbitration centres and public mediation systems. The goal is to be interoperable with the new European platform ODR (European Platform for Online Dispute Resolution) and to facilitate access to case information by parties. The next logical step could be to deepen the understanding of the legal needs of citizens, which could help to plan a strategic delivery of ADR across territories.

To strengthen the availability of data on the different mechanisms, it would be important to develop common data management protocols, among others, in order to bridge separate public and private systems for arbitration and mediation. There is also scope to leverage technology and understanding of legal needs in order to ensure geographic accessibility of different ADR mechanisms. In this context, Portugal is continuously looking to adjust and ensure the sustainability of its ADR services network through working groups. In addition, it is developing a new case management platform RaL + (ADR +), which will aim to provide a common platform for justices of the peace in consumer dispute arbitration centres and public mediation systems. This platform will be interoperable with the new European platform ODR (European platform for online dispute resolution). Parties will also have facilitated access to their case information.

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Figure 2.5. Integrating ADR in a continuum of legal and justice services

Source: Adapted from Attorney-General’s Department of Australia (2009), A Strategic Framework for Access to Justice in the Federal Civil Justice System, A Guide for Future Action, Access to Justice Taskforce, https://www.ag.gov.au/LegalSystem/Documents/A%20Strategic%20Framework%20for%20Access%20to%20Justice%20in%20the%20Federal%20Civil%20Justice%20System.pdf.

Innovation for business-friendly justice

To support the improvement of the business climate, Portugal has developed a framework (composed of legislation, innovative technology and procedures) that aims to support Portuguese companies in reinforcing their equity and reducing their levels of indebtedness through various initiatives. For example, in response to the post-crisis rise in insolvency proceedings, Portugal revised the Insolvency Code. In particular, it introduced fast-track approval procedures restructuring plans, such as the Special Revitalisation Process (PER) that seeks to support borrowers in negotiating recovery plans with creditors in case of imminent insolvency. The latter procedure was amended again in 2018, by limiting the availability of the procedure for entrepreneurial activities and viable firms, while creating more simplified special procedures for individuals (OECD, 2019).

Other innovative procedures contemplate extrajudicial procedures such as, for instance, the out-of-court regime for firm restructuring (RERE).48 These types of extrajudicial procedures have the potential to alleviate the workload within courts and making procedures shorter, more consensual and effective, whilst courts dedicate their resources and time to despatch more complex affairs.

Other initiatives include:

• Out-of-court repossession of the collateral (commercial pledge) legal framework.49

• Legal regime for debt to equity swap, including giving the creditors a chance to save companies with or without the equity holders agreement.50

• An early warning regime, such as early warning tool of financial self-diagnosis for companies developed by the Agency for Competitiveness and Innovation.51

• Electronic proceedings, which are already in force and applicable to insolvency procedures.

While it will take time to see the full impacts of these measures, some of the key results to date include the reduction of pendency in cases linked to businesses as part of the PER process (Figure 2.6). Notably, in accordance with the 2019 OECD Economic Survey, the PER has improved Portugal’s firm restructuring regime, as also reflected in World Bank’s Doing Business indicators as well as the OECD Insolvency Indicators (Adalet McGowan, Andrews and Millot, 2017). It has contributed to approximately 3 000 cases of firm restructuring over the past 3 years (OECD, 2019). In addition, the 2019 OECD Economic Survey stressed the need for financially attractive alternative dispute resolution schemes for firm liquidation. Such schemes could facilitate co-ordination among creditors, enhance co-operation among parties, help successful liquidation of non-viable firms and reduce costs related to business failure (OECD, 2019).

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Figure 2.6. Special revitalisation procedures in the courts of 1st instance, 3rd quarter

Source: DGPJ (2019), Quarterly Statistical Highlight 60, Quarterly statistics on insolvency cases, on special revitalization procedures and on special procedures for payment agreement (2007-2018).

Enforcement cases

To strengthen enforcement procedures, the Justiça + Próxima programme has integrated a range of measures, including the:

• Development of new features for court clerks to electronically access relevant information on the identification of the debtor and his/her assets.

• Extension of these features to enforcement agents.

• Implementation of a system to identify if an enforcement case is waiting for an act of the court registry or of the judge.

These measures are introduced to reinforce the implementation of reform waves over the past two decades. The first set of reforms was the introduction of enforcement agents in 2002/03.52 Second is the effort to simplify the enforcement procedure, reduce the intervention of the judge and registrars and enhance the competencies of enforcement agents.53 It also aimed to promote efficient enforcement procedures, mainly by foreseeing an electronic procedure and allowing enforcement agents to develop a number of activities without judicial consent (such as direct consultation of social security and registry office databases). The third wave was introduced by the new 2013 Civil Procedure Code, which brought five major changes, including:

• Reducing the range of enforceable titles. Over the years, procedural reforms have gradually increased the number of enforceable titles, enabling the creditor to start an enforcement procedure without first going through a declarative procedure. The increase of the number of enforceable titles has shifted the courts’ backlog from declarative procedures to enforcement procedures, increasing the number of declarative incidents grafted in the enforcement procedure. With the 2013 reform, non-authenticated documents (namely debt confessions and other documents signed by the debtor that acknowledge the existence of a pecuniary obligation) ceased to be considered as enforceable titles and now have to go through a payment order procedure or a civil action.

• Creating two types of procedures depending on the type of enforceable title (a faster one, for the more “reliable” enforceable titles, such as court decisions, and another that requires the notification of the debtor prior to the seizure of his/her assets). This modification was intended to guarantee greater certainty and safety in the procedure, introducing stronger control, both by the judge and by the debtor.

• Moving some of the enforcement agents’ competencies to the judiciary. For example, in ordinary procedures, the court registry is responsible for rejecting the enforcement claim when it does not fulfil the formal requirements. Decisions on the modification of the assets to be seized or on the anticipated sale of seized assets are now under the judge’s jurisdiction, for example.

• Enforcing direct electronic seizure of a debtor’s bank accounts via the enforcement agent or bailiff (rendering a prior judicial decision unnecessary).

• Limiting the possibility of other creditors being able claim their credits in a pending enforcement proceeding, thus reducing pending incidents in the enforcement procedure.

Finally, another measure was taken to reduce the backlog in enforcement courts: enforcement cases can also be closed if an enforcement agent does not identify sizeable assets of the debtor within three months. Nonetheless, such proceedings can be renewed whenever the creditor is able to find new assets. The number of pending cases was also reduced as a result of the formal closure of court cases, which were linked to a periodic income. In these cases, enforcement agents award outstanding amounts to the creditors and close the court case, which can also be reopened in case of non-payment.