Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

By Adrian A. S. Zuckerman; Sergio Chiarloni et al. | Go to book overview

13
The Portuguese System of Civil Procedure

Maria Manuel Leitɑ+̃o Conceiçɑ+̃o do Gomes and Joɑ+̃o Pedroso Marques


1. DESCRIPTION OF THE PORTUGUESE SYSTEM OF CIVIL PROCEDURE

1.1. The judicial system

One of the foundation principles of the Portuguese legal system is the independence of the courts. The Constitution of the Portuguese Republic expressly declares that the courts, whose essential function is to administer justice, are sovereign entities of the state, as are the President of the Republic, and Parliament (Assembleia da República). The courts are independent of both of these entities, and are subject to the law alone.

The Constitution establishes the following courts: Constitutional Court; Supreme Court of Justice and judicial courts of first and second instance; Administrative Supreme Court and other administrative and fiscal courts; Court of Auditors and military courts. The Constitution also anticipates the possibility of creating maritime and arbitration courts, as well as nominating justices of the peace.

The Constitutional Court is responsible for constitutional matters. Administrative matters are dealt with in the separate administrative court hierarchy. This leaves ordinary civil matters to the 'judicial' courts.

The judicial court hierarchy consists of courts of first and second instance and the Supreme Court of Justice. The division between courts of first and second instance is related to the system of appeals. The courts of second instance are called tribunais da relaçɑ+̃o. There is one such court for each of the four judicial districts. The Supreme Court of Justice (Supremo Tribunal de Justiça) is the highest entity in the hierarchy of the judicial courts. It is possible to appeal to this court for a third evaluation of a case. In some situations, an appeal can come to this court directly from the first instance court.

The courts of first instance are organized according to subject matter and territory. The courts of general jurisdiction, such as the county courts (tribunais de omarca), have power to decide on all cases not reserved by law to another court. The courts of specialized jurisdiction are: the civil (including small claims courts); criminal; criminal investigation; family and children; employment; and judgment-execution courts. Specialized courts exist only in the most important cities.

As for their territorial organization, the courts of first instance are divided

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