Thought leadership from our experts

The improved disposition of the Portuguese courts (if you can afford them)

According to statistics released in August 2018 by the Portuguese Directorate-General for Justice Policy (DGJP)1, pending civil actions decreased 13.8% in the first quarter of 2018 when compared with the same period in 2017. The cumulative reduction in the number of pending lawsuits between the first quarter of 2007 and the same period in 2018 amounts to a total of 42.4%.

The clearance rate, which refers to the ratio between the number of resolved cases and the number of incoming cases, exceeded 100%, reaching 116.5%, and this figure corresponds to the fifth consecutive quarter with a clearance rate above 100%, except for the third quarter of 2017 when the court holidays took place. This means that the number of resolved cases has consistently been higher than the number of incoming cases. With numbers like these, we have to agree with the Ministry of Justice that "the balance, in the first quarter of 2018 was favourable", corresponding to 7,715 fewer cases in the courts. This figure is the sixth most favourable result in the last 11 years.

The average time taken to resolve a case has also been declining substantially. The figure of 15 months verified for the first quarter of 2018 is the best result for the same period, with a significant reduction from the 30 months' average duration of civil proceedings registered in the first quarter of 2007. The data also indicates that, compared with the same period last year, in the first quarter of 2018 there was a decrease of one month in the average length of civil actions, from 16 to 15 months.

The disposition time indicator – which measures, in days, the time required for all pending cases to be completed2 – recorded a value of 274 days, which according to the DGJP's statistical data was the lowest value verified in the same periods since 2007.

It can be observed from the statistical data collected and processed by DGJP that the Portuguese judicial system has achieved clearance rates above 100%, and is also reducing the calculated disposition time, thus shortening case processing time and providing a faster service for citizens.

These improvements in our judicial performance should be considered in conjunction with other relevant information released at the end of last year. In 2016 the government collected the highest amount ever for the payment of court costs: 258 million euros. This amounts to 103 million more than in 2004, the first year for which this data is available, and 21 million more than in the previous year (2015).

Since I began to practice law, the value of court costs has risen from negligible to an amount unanimously recognised as excessively high when compared to the other national economic indicators, reaching the current point of having such a financial impact on clients that it already accounts for a significant portion of the legal services related to dispute resolution and has opened up a whole new field of expertise for litigation lawyers.

Initiatives to change the current regime of court costs have been more noteworthy and dynamic since January 2017, at least, when, as part of the speech given at his inauguration3, the president of the Portuguese Bar Association addressed the subject as follows:

«Last but not least, I could never fail to defend in this speech a sharp decrease in judicial costs (which I have been talking about at least since 2008), which nowadays have no cap and reach unbearable amounts for citizens who are not entitled to legal aid and representation, and cannot afford to use judicial means to settle disputes. This is a great part of the population, made up of a deprived middle class.
We have to assume, once and for all, that justice is an essential asset and not a commodity, and in that sense it must be at the citizens’ service. There is a need, on the one hand, for a larger budget for the Ministry of Justice and, on the other, for a sharp reduction in court costs. It should be noted that, in Spain, although the costs are lower and the minimum wage higher, very recently and in response to a request for a constitutionality assessment of Law 10/2012 formulated by some members of congress from the Spanish Socialist Workers’ Party, the Spanish Constitutional Court, in its ruling 140/2016 of July 21, while stating that the establishment of court fees, in itself, does not offend the principle of effective judicial protection, ruled that the law was unconstitutional, because the legislator did not show that it took into account the actual income of the people who have to pay them, for the purposes of necessarily considering proportionality, necessity and adequacy. Let there be no doubt, the current (too high – I would even say scandalous) value of court costs, offends the Constitution, violates fundamental rights and basic principles of justice and, in addition, reinforces distrust in the justice system.»

In November 2017, almost a year ago, the justice minister did not assume that the value of court costs would in the future become lower than it is today and, recalling the setting up of a commission with members of the government and Bar Association, which should render its conclusions "shortly", she stressed that "The issue of financing is important". In a very recent interview4, the minister takes stock of her mandate and again fails to explain or answer whether the value of court costs will be lowered following the draft resolution approved by Parliament that recommends the Government reduce these costs.

In the meantime, the very high value of court costs in force seems to me to have had the perverse effect of improving the performance indicators of the justice system, both because fewer lawsuits are initiated, and because case resolution through settlement, in which court fees may be reduced, has increased.

In short, now that Portuguese justice is providing citizens with an improved, faster service, it should be ensured that this service is effectively made available to all citizens.

  2. Disposition time is an indicator that measures, in days, the time it would take to complete all lawsuits that are pending at the end of a given period, based on the pace of work performed in that same time interval, i.e., the number of cases terminated in that period. Applied to a quarter, this indicator consists of multiplying 91.25 (average number of days in a quarter) by the total number of lawsuits pending at the end of the quarter divided by the total number of lawsuits over the same period.
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