Short essay on the reorganization of the judicial structure
The present working document purports to assess the review carried out on the
judicial organization reform and to present proposals for the reorganization of
308 courts into 20 Judicial Courts; these courts shall function in sections
distributed throughout the geographic area of the respective district or
autonomous region.
As regards the reorganization proposals, the following guiding principles were
adopted:
1. To alter the territorial division of the NUTS ongoing reform for the
Administrative Districts and Autonomous Regions, whereby each
administrative district and autonomous region shall correspond to a
county court with its seat in the capital of the district or region;
2. To establish a Central Instance, per county court, that may be divided
into a Civil Section and a Criminal Section that shall mainly deal with
cases with a higher value and whose competence falls under a collective
or a jury court as well as into Sections of specialized competence,
bearing in mind the pre-existing supply and procedural-flow, by type,
recorded;
3. To establish Local Instances, with Sections of generic competence,
taking into account the pre-existing supply and procedural-flow, by type,
recorded;
4. To include these Instances in the same District Court, that shall have
only one budget and board of staff, incorporated into only one court
registry which shall function in several places of the county. In
compliance with the legal limitations, the working posts may be relocated
within the county;
5. The number of judges, per county, may also be globally defined and their
work may be carried out in more than one place within the county;
6. Without prejudice to the rules on territorial jurisdiction, any section should
be able to receive documents and provide information (if available in the
computer system) on cases under the County’s jurisdiction; they should
also be able to handle cases insofar as such is determined by the
management bodies of the County;
7. The management structure composed, as a rule, by a president-judge, a
coordinator-prosecutor and a court-administrator remains the same; this
latter may however extend his power of delegation. The setting of
procedural objectives for the county remains;
8. To extinguish the courts whose procedural-flow is under 250 incoming
cases per year;
9. To favour the proximity to the citizen, whenever possible;
10. To think over the reform bearing in mind the current physical structures
without increasing the number of human resources, except for the
situations that already have obvious deficiencies;
11. In the definition of the courts, take into account the results of the 2011
Census as concerns in particular the information on population;
12. The possible existence of first instance courts of national (specialized)
jurisdiction.
I. Current situation of the reform initiated in 2008
The judicial organization established by the Law 52/2008 of 28 August1 is based
on three main vectors: an extended territorial matrix, a strong specialization of
the judicial supply and a new courts’ management model.
There are nowadays 308 courts functioning in an individual and autonomous
way; the Law 52/2008 determines that these courts are to be organized in 39
county courts, with their own management bodies composed by judges
(president-judge and coordinator-prosecutor) and by a court-administrator
(usually a court official).
The new model has only been set up in a limited area of the national territory;
since April 2009, and at an experimental basis, only three out of 39 new county
courts foreseen in the Decree-Law 25/2009, of 28 August, were established
(Alentejo Litoral, Baixo Vouga and Grande Lisboa-Noroeste).
1
The source of this legal diploma is based on the work carried out in 2007 by the Civil Engineering Department of Coimbra
University which, at the request of the Ministry of Justice, has submitted a proposal in line with the principles defined by the
Parliamentary-Political Agreement for Justice Reform entered into by the Social Democratic Party and the Socialist Party. Following
this Study, a report has been presented, in September 2007, by a working-group set up for such purpose composed by
representatives of DGAJ, of the High Council of the Judiciary, of the Public Prosecution, of the Bar and of the Council of Justice
Officials. Based on this report, the Law 52/2008, of 28 August was drafted.
Given that the Law 52/2008 did not specifically define the form the judicial
supply should take in each of the new county courts to be set up, such has
been globally sketched in a report elaborated in November 2010 by a working
group2 designated for such purpose and of which were part representatives of
the Ministry of Justice (MJ)’s several bodies (DGAJ, DGPJ, IGFIJ and ITIJ). In
January 2011 a report drafted by the MJ intervening bodies and coordinated by
the General-Director of DGAJ ended with a proposal to extend this model to the
counties of Lisbon and Cova da Beira; it was prepared and approved the
Decree-Law 74/2011, of 20 June that provided for the setting up of these two
counties until December 2011.
Even though comparative data are not deemed enough to justify a more indepth assessment, the experience obtained by extending the model nationwide,
has raised some issues that must be improved; such has led one to consider, at
the time these two counties (Lisbon and Cova da Beira) were about to be
installed, the territorial matrix based on NUTS (type III)3.
II. Decision to suspend the extension of the reform
If the specialized vectors of judicial supply and the new management model are
positive – justifying thus their maintenance and reinforcement, in particular as
concerns the competences of the county’s management bodies and of the
structures linked to the community – some issues should be reconsidered, the
more so when the optimization of the resources available to the citizens is
deemed absolutely critical.
Moreover, in the main objective of any judicial system alteration – which is to
always improve its efficiency, maintaining the quality of the service provided to
the citizen – concur not only the organization of the services but also the
procedural law in force; it is important to ensure that both realities converge.
For that matter, Her Excellency the Minister of Justice, has considered
necessary to improve the ongoing reorganization model and adapt it to the
2
By the Minister of Justice’s Order 9961/2010, of 14 June 2010, a working group was set up to extend the judicial map (GTAM),
presided by the then Justice Secretary of State, Mr. João Correia, and involving the following entities: Directorate General of
Justice Administration (DGAJ); Financial Management and Justice Infrastructures Institute (IGFIJ); Institute for the Justice
Information Technologies (ITIJ) and the Directorate General for Justice Policy (DGPJ).
3
NUTS III have resulted from the subdivision of statistical regions and do not have an administrative meaning. The only purpose of
NUTS III is to join adjacent municipalities, with similar problems and challenges and, thus, obtain data required for the economic
planning, in particular. In fact, most of the citizens, even those that live in such regions, do not know about this territorial
organizational structure or its name.
structuring lines of the procedural laws reform, before proceeding with its
extension.
To this effect, the establishment of 20 counties, corresponding to the
Administrative Districts and Autonomous Regions, is deemed to simplify the
judicial organization, possibly more in line with the remaining territorial
organization of the public services. The purpose is to simplify even more the
internal structure of the judicial supply in every county.
On the other hand, since the definition of the new procedural framework would
only be concluded by the end of 2011, it was necessary to halt the progress of
the ongoing judicial reform model, bearing in mind their simultaneous
implementation4. In this context, the aforesaid Decree-Law 74/2001, of 20 June,
has been repealed by the Decree-law 113-A/2011, of 29 November, without
prejudice to the extinction of some divisions and benches that were no longer
justified and the subsequent redistribution of the cases by the remaining
structures.
As such, besides trying to enhance the advantages of the reform and to correct
the deficiencies found in the model to be implemented, one purports to go
further and set up structures that may provide an increased mobility of
resources in conjunction with the new definition of professional statute that has
to be carried out5.
Bearing in mind that in the present moment the final result on the reform of the
procedural laws is not known and considering that definite solutions must also
be envisaged with the other justice operators, DGAJ has tried to test
organizational solutions to be submitted to a wide-ranging review prior to its
translation into a legal text.
III. Scope of the present document
This is a work-study under the remit of DGAJ that wishes to embody the
instructions submitted by the Office of the Minister of Justice after the first
4
In fact, joining small and medium instances has consequences in the sketch of the county courts and in the human resources
organization; the same shall happen if changes in the specialization are to be adopted.
5
In this sense, the idea of a global structure pertaining to a district court is enhanced, with sections functioning in several spots
within the county; such has an impact in the definition of the court registry and implies a career restructuring as regards in
particular the concept of “right to a place” of the Justice Officials.
evaluation carried out by Troika6, in September 2011, and then again after the
second evaluation7, in November 2011; it is a working document to be subject
to ministerial decision and further discussion in the sector, either because its
implementation involves services that were not consulted in its elaboration,
such as DGPJ, IGFIJ, IP and ITIJ, IP, or because it is important to hear the
judicial structures such as CSM, CSMP and COJ. In addition, not only the
proposals hereby presented imply alterations to the professional statute of
those involved, which cannot be changed without public discussion, but also the
concept of judicial court, such as it currently exists, is deeply altered.
More than aggregate different courts under just one management entity, one
intends to consider the several courts belonging to a district as sections of one
single district court.
The present document tests the organization of the counties taking into account
the number of incoming cases and proposes that, at the same time, structures
of automatic processing be set up to deal with case backlogs8, accompanied by
a team of officials to specifically handle pre-determined acts, such as
conducting court-hearings and other acts. These teams, whose management
should be entrusted to CSM, PGR and DGAJ should act at the request of the
administration of the district courts, being the priorities in charge of the
management entities.
IV. Guiding principles of the assessed model
The judicial organization that one intends to implement in Portugal is based on
a structure of a single court, per district, which shall function in sections
throughout the district; rather than being autonomous these sections shall be
part of one single court.
These sections shall have a generic or specialized competence, depending on
the historical demand, on the evolution predicted and on the mobility conditions
6
The first review made to the Memorandum of Understanding, signed in 17 May 2011, between the Portuguese State, the
European Commission, the European Central Bank and the International Monetary Fund in 1 September 2011 has eliminated the
measure set out in item 7.4 of the first version of the document, where it was determined the establishment of the county of
Lisbon and of another county, in accordance with the 2011 new management model.
7
Document drafted in December 2011.
8
As it is known, the resolution of the “courts’ backlogs” was consigned in the MEFP (Memorandum of Economic and Financial
Policies) and in MOU (in items 44. and 7.1 and 7.2, respectively) as an objective to be achieved by the Portuguese State within 24
months.
of the territory and shall function under the remit of the organic structure of the
court’s presidency.
This court organization has consequences in the judicial organization and in the
support structures (court registries and case-sections) and is directed towards
an increased mobility of resources, human and material, and of cases or, at
least, in the performance of procedural acts.
In some cases no changes in terms of supply are foreseen; it is however
considerably significant the fact that where today are several court registries,
with their own board of staff and able to handle autonomously the cases, all
these resources could be part of the same structure, subordinated to a joint
management, with a single budget and with a common definition of procedural
objectives.
Notwithstanding the issues still open and in order to draw the judicial map, it is
crucial to consider some assumptions. Thus, the following guiding principles
were adopted:
1. To alter the territorial division of the NUTS ongoing reform for the
Administrative Districts and Autonomous Regions, whereby each
administrative district and autonomous region shall correspond to a
county court with its seat in the capital of the district or region;
2. To establish a Central Instance, per county court, that may be divided
into a Civil Section and a Criminal Section that shall mainly deal with
cases with a higher value and whose competence falls under a collective
or a jury court as well as into Sections of specialized competence,
bearing in mind the pre-existing supply and procedural-flow, by type,
recorded;
3. To establish Local Instances, with Sections of generic competence,
taking into account the pre-existing supply and procedural-flow, by type,
recorded;
4. To include these Instances in the same District Court, that shall have
only one budget and board of staff, incorporated into only one court
registry which shall function in several places of the county. In
compliance with the legal limitations, the working posts may be relocated
within the county;
5. The number of judges, per county, may also be globally defined and their
work may be carried out in more than one place within the county;
6. Without prejudice to the rules on territorial jurisdiction, any section should
be able to receive documents and provide information (if available in the
computer system) on cases under the County’s jurisdiction; they should
also be able to handle cases insofar as such is determined by the
management bodies of the County;
7. The management structure composed, as a rule, by a president-judge, a
coordinator-prosecutor and a court-administrator remains the same; this
latter may however extend his power of delegation. The setting of
procedural objectives for the county remains;
8. To extinguish the courts whose procedural-flow is under 250 incoming
cases per year;
9. To favour the proximity to the citizen, whenever possible;
10. To think over the reform bearing in mind the current physical structures
without increasing the number of human resources, except for the
situations that already have obvious deficiencies;
11. In the definition of the courts, take into account the results of the 2011
Census as concerns in particular the information on population;
12. The possible existence of first instance courts of national (specialized)
jurisdiction.
V. The new judicial organization
It is obvious that we stand before organizational options that bring about deep
changes in the way one looks at and thinks about the judicial system, centred in
a new system of governance that implies a reflection and the involvement of all
the different intervening parties.
It is not only in Portugal9 that issues related to the need of giving a more
adequate response that effectively ensures the citizens’ legal rights, and in
particular the time taken to obtain a judicial decision, are being discussed.
9
The Portuguese Justice Permanent Observatory (OPJ) set up in 1996 in the Centre for Social Studies of the Economy Faculty of
Coimbra University, has produced and disclosed, within the scope of a protocol established with the Ministry of Justice, several
works, seminars and courses related to the Portuguese justice system, contributing also to the dissemination of the works of the
European Commission for the Efficiency of Justice (CEPEJ) and of comparative law systems. It is highlighted, in this work and
among all the other documents produced by the Observatory, those prior to the Law 52/2008 and which have influenced it, the
It is evident that this question of celerity does not encompass all that is
demanded of a country’s justice system – besides celerity, one wants a fair
judgement - and, even if such may have different perspectives, one wants it to
be more centred in economic efficiency or directed to the citizen and the social
rights. In any case, whenever a debate on justice systems occurs, the celerity
issue or the questions related to case-backlog do come up; we refer to the main
conclusions reached by the Commission for the Operational Efficiency of
Justice10, contained in the report published in May 2011.
Calling to mind the current doctrinal theories11, one may consider the three
functions inherent to justice in contemporary societies: instrumental functions,
political functions and symbolic functions. Are instrumental functions those that
run in a certain functional and social context, deemed to be attained when
effectively accomplished (traditionally, they are the alternative dispute
resolution, social control, the administration and the establishment of law).
Political functions are those that result from the performance of the instrumental
functions and that contribute to make legal or maintain a political system.
Symbolic functions are a set of social orientations that result from the
combination of the instrumental and political functions and that contribute to the
maintenance or destruction of the social system as a whole.
All these functions must be thought of in a judicial reorganization so as to
ensure that the legitimacy of the system is maintained, either from an inside
point of view or from the perspective of the citizen (user of the system).
It is thus important, in this measure, to involve the justice officials in the
reflection of the main issues at stake in the reorganization proposed: to deepen
the management mechanisms and the role of the justice officials, the rules on
case distribution deriving from the new courts’ and court registries’ structures as
well as the professional statute of the justice officials and of the judges.
The management mechanisms12
survey carried out on the judicial systems of other countries and the analysis made on the pilot-county courts, in March 2010. All
these documents are available at http://opj.ces.uc.pt.
10
This Commission was set up by the Order 9960/2010, of 14 June and is composed of representatives of the High Council of the
Judiciary, the Public Prosecution, the Bar, the Ministry of Finances, the Ministry of Justice, the Secretary of State of Justice and for
Judicial Modernization, DGAJ, DGPJ, IGPJ, IGFIJ, IP, ITIJ, IP, OPJP and of two experts from the Mackinsey organization.
11
“The judicial system and social complexity challenges”, Report of OPJP, June 2011.
12
Item 7.5 of MOU, 2nd Review.
The management mechanisms proposed are in line with what is laid down in
the Law 52/2008 for the three pilot-county courts. They avail themselves either
of the path and reflection carried out by the High Council of the Judiciary and of
what the experience has taught us; it is highlighted the need to invest in the
president-judges’ training and in the setting of offices able to assist the
president-judge in larger counties, should the redistribution of resources be
possible.
The option of the Portuguese system remains updated as it is part, at the
outset, of a more global dynamic change occurring in the public administrations
oriented by concepts of quality and of excellence. One has tried to implement
these concepts in the judicial system either by managing the (procedural)
objectives or by increasing transparency values and the communication with the
citizens and the communities, in line with a desirable system of higher
accountability, based on responsibility and on the rendering of accounts.
The virtues of the management system of the county courts, as set forth in the
Law 52/2008, are far from exhausted and, if one considers the jurisdiction
attributed to the president-judge, it constitutes an unprecedented innovation in
the national judicial organization, inasmuch as the president-judge had so far a
mere administrative presidency.
The management of the pilot-county courts is ensured by a president, a judge
appointed for three years by the High Council of the Judiciary, a coordinatorpublic prosecutor, appointed by the High Council of the Public Prosecution that
runs the MP services and a court-administrator appointed by the president of
the court and chosen from among those proposed by the Directorate General of
Justice Administration. Coordinator-judges, selected by CSM under proposal of
the president-judge, may also be appointed to perform acts delegated by the
president-judge in the scope of the respective divisions.
As concerns the management of counties with a high number of cases (higher
than 50.000), such as those of Lisbon and Porto districts, the structure of the
presidency shall comprise vice-presidents, with powers delegated by the county
president as well as an additional number of coordinators-public prosecutors
and court administrators.
From the competences entrusted to the president-judge of the pilot-county
courts, reference should be made to those set forth under article 88(4) of the
Law 52/2008 related to procedural management.
It is determined that the president-judge is competent to “implement working
methods and quantifiable objectives for every organic unit, without prejudice to
the competence and attributions pertaining to the High Council of the Judiciary
in this field, in particular as regards the establishment of adequate procedural
volume indicators; to follow up and assess the court’s activity, in particular the
quality of the service provided to the citizens; to follow up the court’s case-flow,
identifying specially the cases that have been in backlog for a period of time
deemed excessive or which are not decided within a reasonable period of time,
informing the High Council of the Judiciary and proposing reasonable
measures; to promote the application of simplifying and management
measures; to propose to the High Council of the Judiciary specialized sections
within the divisions; to propose to the High Council of the Judiciary the
reallocation of judges within the county, bearing in mind a rational and efficient
service distribution; to carry out the reallocation of staff within the county taking
into account the limits legally defined; to request an additional response in
particular via the complementary board of judges”.
The president-judge is also in charge of the annual and multiannual activity
plans and related reports as well as of preparing the draft budget and of
planning the human resources needs. It should be referred that as regards
these issues there are some conflicts of competence in the public
administration, the more so in a context of budgetary constraints and
considering that the most significant part of the budget (around 90%) is to
support the expenditure on personnel, ensured at central level by the public
administration services competent in this field. Global harmonizing needs as
concerns the judicial response and the promotion of gains and scale economies
which have led to the centralization of the needs and their satisfaction should
not be discarded. Once again, such tension does not solely pertain to the
national context but is referred to in comparative law studies carried out in the
sector.
Nevertheless, such does not impair the wish to deepen the structures and the
competences of the county’s management bodies by harmonizing what is
established in the management scope with the situation of the justice officials as
regards, in particular, the setting of objectives and respective evaluation.
Therefore, the conclusions reached by the Commission for the Operational
Efficiency of Justice remain updated, in particular, where it refers “to the need to
establish objectives for the functioning of justice and its officials, as well as the
need to assess and supervise the compliance with those objectives, in order to
increase operational efficiency...”, or that “the creation of structures of
management control composed by persons with adequate competence and
training, with the necessary powers and autonomy to, together with the judges
and the justice officials, draw up budgets, set objectives and monitor the
performance in these areas; these persons shall have to report to the Minister
of Justice the conclusions related to the county’s performance”.
It is also important to develop, from the initial matrix, statistical indicators
mechanisms able to follow up the progress of the system and the definition of
management measures in due time. The articulation with the Information
Society Action Plan shall be the key to build a coherent whole able to promote
reliable and standardized management indicators for the courts and for the
administration and judicial entities competent in these areas.
In the field, the county’s administration structure reflects already the
coordination and articulation between the judicial and administrative authorities
by engaging all the agents in the pursuit of established objectives, of a
procedural nature, to be defined between the President-Judge and the High
Council of the Judiciary or of financial management objectives, to be articulated
between the Judicial Administrator and the Justice Administration, with the
involvement of the President-Judge.
As aforesaid, perhaps the most pioneer element which is now introduced in the
Portuguese
judicial
organization
is
the
extension
(geographic
and
organizational) of the court and the blurring of “case-sections” structures that
currently exceed the physical space of the courts; they shall be joined under
only one organizational structure, per district, being the human and material
resources placed under one single court registry, though divided in several
places throughout a certain area. Thus, a bigger mobility in the allocation of
resources, identified as an obstacle to the improvement of the judicial system
response is sought13.
Such structural change in the court’s organization breaks with the traditional
isolation of all the small judicial structures that from now on are to be comprised
in a larger structure, presided by a judge deemed more than the traditional
president-judge; such shall imply a reformulation of the judge’s own role in the
small court. It should be referred that the distribution shall be centralized
(naturally by computer means) at the county’s seat, which for every district is
located in just one place.
Nonetheless, if the blurring and extension of the structures do not bring about
the possibility of reallocating the cases in certain phases or moments, the
advantage that such changes may beget is lost.
Moreover, the promise of improving the functioning of the system as a whole –
and, in this way, of improving its own legitimacy that stems from the way it
performs its instrumental functions – justifies the need to consider the best
option to ensure not only what the distribution rules linked to the principle of the
natural judge try to secure (to guarantee the neutrality and a balanced workload
for every judge) but also what an increased mobility may bring about.
In this proposal, the president-judge is entrusted with the definition of the
county’s procedural objectives, subject to approval by the High Council of the
Judiciary; the same judge should also have competence to reallocate the cases
on the basis of criteria previously established with the CSM or, in special
situations, by specific proposal submitted to CSM (which the current law already
foresees for the pilot-county courts). The placement of judges beyond those
inscribed in the board of personnel should be articulated between the presidentjudge and CSM; the question of transferring a judge from a certain section to
another or even the option for his specialization due to the distribution of cases
of a certain nature may also be posed.
As concerns the placement of judges, what is proposed is that the judges, even
though they should apply to a specific post, should be placed in one single map
of the County which cannot be altered by mere decision of the president-judge.
Such does not mean that they shall not be called to work in other cases or even
13
Vide, on this matter, the OPJP report “The management of the courts: a view on the pilot-county courts experience” of March
2010.
that they shan’t need to travel to another place within the county to perform a
certain act, should such be determined by the president-judge, bearing in mind
a rational and efficient distribution of the service.
Personnel management and definition of HR in accordance with the
procedural volume14
The changes in the courts’ organizational structures, as well as their geographic
extension, contribute not only to increase the human resources mobility but also
to quickly allocate resources to where they are most needed (this shows the
need to have adequate management indicators). To be able to foresee the
possibility to allocate human resources to the handling of certain types of cases
according to the needs of the moment is considered crucial.
The board of staff shall be adapted to the regular procedural-flow, where the
volume of incoming cases, by type, evaluated in accordance with the Values of
Procedural Reference (VRP)15, shall determine the board of a certain court.
The VRP have resulted from the sorting of data related to the average number
of completed cases, per judge, in a period of 3 years and according to the
nature of the courts, where the VRP corresponds to the values recorded by the
last court placed in the first third of the list.
Besides the regular flow - from the processing to be given to the incoming
cases up to the moment of the final decision - there are other acts that have to
be performed, most of them by the court registry. This is the case, in particular,
of the extraction and delivery of certificates, criminal records, procedures
designed to give an end to objects, requests of reports, elaboration of fees and
corresponding notifications, registration of case-filing, etc.
Even though there are not enough elements to pinpoint the precise number of
resources required to perform these acts, it is deemed necessary to reinforce
the courts’ board of staff in order to provide an adequate response should the
need arise. Considering the current resources, one has chosen to set up a
supplementary board of staff, proportional not only to the personnel already
placed but also to the procedural-flow recorded; one believes that productivity
14
Items 7.6 and 7.13 of MOU, 2nd Review.
There was a first definition of VRP consigned in the Minister of Justice’s Order 9961/2010, of 21 May. These values have been
reviewed and updated by DGAJ and CSM at the end of 2011, as referred in Annex 1 of this document.
15
linked to this type of tasks shall be improved by being separated from the other
tasks pertaining to the regular running of the cases.
It was agreed upon that this supplementary board, just for the justice officials,
should be around 6% of the total of the personnel allocated to every court
registry.
In addition, the backlog (whose definition should be harmonized, although able
to provide a more casual appreciation by the county’s management body) shall
be handled by groups specially allocated to such purpose, separating the
human resources required for the regular running of the court from those that
handle the backlog-cases.
Likewise, the review to be made on the justice personnel statute shall update
their regime, by changing and unifying the rules in respect to the different
categories due to different professional contents. In this scope, the alteration in
the evaluation regime and its coordination with the definition of objectives by the
county’s president-judge (currently the evaluation is entrusted exclusively to the
Council of the Justice Officials), on a yearly basis (the periodicity varies today),
means having a more adequate human resources management.
These changes allow a closer management to be carried out by the county’s
presidency, while keeping the personnel under the remit of DGAJ.
VI. Reflection criteria for the elimination or maintenance of courts
While materializing the above mentioned principles it is necessary to establish
some rules for the evaluation of the situations in which the closing of courts is
justified, not only as they currently exist (that is, in a moment prior to the district
court structure) but also while future section of a district court. In this field, the
citizens’ perspective has always crossed the perspective of the efficiency of the
judicial system as a whole, thus becoming a critical point to which we must
respond in the best possible way, assessing at every moment the interests at
stake and also the social, economical and technological progress that today
provides for solutions once unthinkable.
However, we are well aware that the decision to eliminate courts shall entail
local contestation from the population and from municipal responsible bodies
who shall have to be fully enlightened as to the options to be considered.
The following criteria for the elimination of services were established:
1. Expected subsistent procedural volume after the re-organization of less
than 250 incoming cases;
2. Distance between the court to eliminate and the one that shall receive
the case likely to be made in less than one hour16;
3. Quality of the facilities and the fact that there are property of the Ministry
of Justice or rented;
4. Evolution of the local population in accordance with the 2011 Census;
5. Supply of alternative dispute resolution means;
6. Central services available, or such possibility, of citizen’s service points.
VII. Elements given by the 2011 Census
As is known, in 2011 there was a population census in Portugal, and the
preliminary and provisional (as from 07.12.2011) data are already available at
Statistics Portugal’s website17.
This Census has shown an increase in the national population of about 2%,
mostly due to the immigration, the aging of the population and the increase in
the education level. The country has accentuated the previous decade tendency
to live by the coastal areas and has reinforced the concentration of the
population near the metropolitan areas of Lisbon and Porto.
Hence, it is expected that the pressure on the coastline services shall increase,
reducing in other parts of the territory, once most of the municipalities in the
interior have lost population.
These factors were carefully taken under consideration in the organization of
each county organized by district18, as referred in the respective Annex.
VIII. Structure of the 1st instance courts
In the proposed structure for the 1st instance courts, the county shall adopt the
name of the seat of the judicial district and it shall include the Judicial District
Court (name of the district)19 that shall be divided into:
16
The network of public transportation was also pondered but that criteria didn’t work as a differentiator since the supply
regarding the places under analysis was practically null in all cases.
17
The provisional results of the 2011 Census, with reference to 21 March 2011, indicate that the resident population in Portugal as
grown about 2%, being established at 10 561 614. In regional terms, the Alentejo has again lost population during the last decade
(-2,5%) and the Centre also registers a slight decrease (-1%). The Algarve and the Madeira Autonomous Region have had
considerable population growth in view of 2001, respectively +14,1% and +9,3%. In the North the population has stabilized and the
Azores present a slight increase of 2%.
18
Annex 2 contains a summary of the main elements extracted from the 2011 Census.
1. Central Instance of the Judicial District Court of (...), with jurisdiction
over all the geographical area corresponding to the district, composed of:
Civil Section: Handles and judges, as a rule, the declaratory actions that
shall take the form of ordinary proceedings, in accordance with the
stipulations of the Law on Organization and Functioning of Judicial
Courts, concerning the entire county (district);
Criminal Section: Handles and judges the criminal cases under the
jurisdiction of the collective court or court by jury, concerning the entire
county (district);
Specialized Jurisdiction Sections: There will be as many as deemed
necessary, as regards the number of cases of the speciality at stake. As
a rule, they shall have jurisdiction over more than one municipality and
may even cover an entire district. These specialized jurisdiction sections
may be located in the seat of the county or in other locations (local
courts). They must be designated by the subject-matter they handle:
Commerce Section, Enforcements Section, Enforcement of Sentences
Section; Family and Minors Section, Prosecution Section, Labour
Section.
These specialized sections, when located in the county’s seat, may have
their jurisdiction expanded to those cases that must be judged in the
Central Section due to the lack of a court of specialized jurisdiction in the
competent municipality.
2. Local instances, constituted by Generic jurisdiction sections, which
may be divided into civil and criminal and that shall handle the cases that
were not attributed to the central instance, with jurisdiction usually limited
to one municipality (without prejudice to the possibility of handling other
cases, within the scope of the procedural management powers of the
president-judge).
There will be as many generic jurisdiction sections as established in the
municipalities that constitute the district and they shall be designated by Court
of (... municipality A): Generic jurisdiction section of (...Municipality A) of the
19
The option was Judicial Court followed by the name of the district once it is more intuitive for the citizens.
District Judicial Court of (...), Court of (...municipality B): Generic jurisdiction
section of the District Judicial Court of (...), etc.
In the cases of the local instances with a high number of cases, the sections
may still be divided into levels of specialization, provided the volume and nature
so justifies it, either by legal definition or by a county management decision.
Example:
The Judicial District Court of Évora is divided into:
Central Instance: Civil Section of the Évora District; Criminal Section of the
Évora District; Labour Section of the Évora District; Family and Minors 1 st
section of the Évora District; (Municipalities of ... and of ...); ...
Local instances: Évora Court (Generic jurisdiction section or, in case of
division, civil jurisdiction section and criminal jurisdiction section), Arraiolos
Court
(Generic
jurisdiction
section);
Montemor-o-Novo
Court
(generic
jurisdiction section).
In some cases there may be no obvious changes in terms of supply, except for
the Central Instance, but it is however quite significant the fact that today there
are still several court-registries, with their own staff, that handle their cases
independently. All these resources are now part of the same structure, with a
common management, a single budget and common procedural goals.
The model broadly defined does not prevent the adoption of “solutions by
measure” in counties of larger procedural dimension or with geographic
specificities.
IX. Proposals to reorganize the counties
The proposals presented in annex20 compare the current supply and
organizational status in the district and the respective human resources with the
new model.
231 county courts and 77 specialized jurisdiction courts were evaluated, as
defined by Law 3/99, of 13 January21, and it is proposed to transform them in 18
district courts, 1 Azores court and 1 Madeira court, thus substituting 308 judicial
courts.
20
Proposals to reorganize the counties, presented by alphabetical order of the districts.
One of the counties of the Beja district (Odemira) currently belongs to the County of Costal Alentejo, in accordance to Law
52/2008, of 28 August.
21
It is proposed to extinct 46 courts and 1 bench22 and an attempt was made to
privilege the specialization whenever deemed adequate and possible. The
concrete form of the judicial supply must still be analysed by the current
structures, namely the High Council of the Judiciary and the High Council of the
Public Prosecution Service, aiming the final definition of the supply in each
district.
The definition of the boards of staff was based on the concept of VRP – to
calculate the VRP the procedural flow of the years 2008 to 2010 regarding
completed cases was analysed, according to the nature of the courts. Such flow
was listed by decreasing order of the values of completed cases and a
correspondence was made with the respective values of VRP recorded by the
last court of the first third of the respective list. In what regards the criminal
prosecution benches and the commerce benches it was especially determinant
the collection of empirical elements near several judges. The same occurred on
the enforcement benches, namely regarding the adaptation to the current
regime of the enforcement action.
In what concerns human resources, the global board of justice officials and
judges allocated to the handling of cases varies as is shown in the following
chart. To the number of allocated officials established for each court it shall be
added a group of officials to perform acts following the final decision, amounting
to 6% of the global number of the reallocated resources.
The reallocation of the resources not placed in pendency recovery teams is
envisaged.
As shown in the chart and excluded the elements that shall belong to the
management structures of the judicial county courts, it is foreseen the possibility
of allocating about 300 judges, 80 public prosecutors and about 400 officials 23,
to pendency recovery teams or structures who shall work throughout the
national territory thus contributing to a more adequate response to this
situation24, without burdening the permanent boards with an excessive number
of resources.
22
Annex 4 constitutes the list of courts to extinct. Annex 5 represents the propositions for extinction in the map of Portugal.
Between June 2011, date of the analyzed data, and January 2012, 159 justice officials retired.
24
The study and the proposition of organization for the recovery of cases are in an autonomous document.
23
X. The Courts of Commerce25 26
There are currently four courts of Commerce in Lisbon, Vila Nova de Gaia and
the benches of Aveiro and Sintra.
By the end of 2010 the total of the pending cases in these four courts amounted
to 19.471 of which only 1.077 were insolvency cases. In that year 11.586
incoming cases were registered in those courts of which 2.883 were
insolvencies and in the same period 2.858 insolvency cases and 6.385 “other
cases” were completed27.
Once we analyse the procedural flow in the courts of Commerce we conclude
that in 2009 and 2010 they were able to respond adequately to the insolvency
cases, apparently to the detriment of the remaining cases.
The insolvency cases are handled promptly and end by the declaration of
insolvency of the debtor. However, these insolvency cases are associated to a
high number of “other cases” that can carry on even after the former have
ended and that correspond to the majority of the cases handled by the referred
courts of Commerce and that render the declarations of insolvency effective,
settling the property of the insolvent person and promoting the satisfaction of
the debtors.
Besides these cases that may be considered as part of the universe of the
insolvencies, the remaining issues that make up the set of cases decided in the
courts of Commerce - namely in what regards brands, patents or the validity of
social deliberations – have a residual character, not being, on their own, an
obstacle to the celerity and efficiency of the courts, because the insolvency
cases and respective incidents, attachments and appeals, are urgent and gain
precedence over the court’s ordinary service28.
Furthermore, a significant part of such matters shall fall under the nationwide
jurisdiction of the Competition, Regulation and Supervision courts and of the
court of Industrial Property, to set up in 2012.
In such measure, the flow of the courts of commerce is greatly related to the
insolvency cases and their attachments.
25
Point 7.10 of the MOU, 2nd Review
This chapter has had the contributions of the DGPJ.
27
According to the Insolvencies and Business Rescue Code, the insolvency action ends by the judicial declaration of insolvency. At
that moment the insolvency case is considered as complete for statistical purposes.
28
In accordance with article 9 (1) of the Insolvencies and Business Rescue Code.
26
All specialized operators in the insolvency area are required to possess
knowledge in areas quite similar to the ones required to those who deal with the
remaining commercial issues, namely to know about commercial law,
economics and the fundamental rules of accounting and management. Only
through this specialized knowledge of the interveners in this issues and, in
particular, of those who take decisions in these matters, may we reach the set
of disputes that are likely to occur and for which an intervention is required in
order to obtain a fair decision.
Thus, and without prejudice to the fact that new measures may be introduced to
reinforce the answer in the insolvency’ universe, it is not considered pertinent to
set up insolvency specialized units. It is also under consideration, within the
structure of judicial organization now proposed, the permanent specialization by
judge, to occur within the scope of the courts of Commerce, eventually in what
regards the cases other than insolvencies.
XI. The courts with jurisdiction over all the national territory
Similar to what is currently consigned in the domestic legal order, it is foreseen
the continuity of structures that handle and judge cases on specific matters, with
jurisdiction over all the national territory. In effect, if on one hand the specificity
of the matter advices the establishment of a specialized structure, the number
of cases and their dissemination throughout the territory, as well as the
possibilities of computer processing, may recommend that they be handled by a
single nationwide unit.
The management structures of these courts are adequate to the new model of
management and organization, after pondering the scope of their jurisdiction. In
these cases it shall be justified to separate the procedural management
attributions, to be attributed to the president judge of the competent court for the
entire national territory, in direct articulation with the CSM, and the remaining
management attributions to be taken on by the county’s presidency where the
court with jurisdiction over all of the national territory is to be located29.
XII. The courts of Appeal
29
Annex 6 is a list of courts with jurisdiction over the entire national.
The Portuguese judicial organization has currently five courts of appeal (2 nd
instance), two being in the judicial district of Porto, one in Lisbon, one in
Coimbra and another in Évora.
The Law 3/99, of 13 January also foresees the existence of a court of appeal in
Faro that has never been set up.
Considering the final layout of the judicial organization to be adopted, the
possibility of setting up subdivision units of these courts may be thought of,
preferably resorting to competences already set up in the counties (facilities and
human resources).
XIII. Some tasks for the implementation of the reform
The different tasks to be developed to set up a new judicial organization are not
entirely DGAJ’s responsibility for it is not possible to make a complete
chronogram of the works. Nevertheless, we will give notice of the main tasks to
carry out.
First, one must conclude the organizational model and evaluate integrated
solutions for the entire national territory. Afterwards, one should alter the
legislation, the facilities and the information systems. The following list is not
meant to be exhaustive.
Amendments to the legal organizational framework
To amend the entire legal framework in force; such can only take place after the
approval of the civil procedure regime. Thus, it matters to amend the hereby
listed legal diplomas:
a. Law on the Organization and Functioning of the Judicial Courts
(LOFTJ, Law 3/99, of 13 January and Law 52/2008, of 28
August);
b. Decree-Law regulating the LOFTJ (DL 186-A/99, of 31 May
and DL 28/2009, of 28 January);
c. Order defining the staff boards for the new court-registries
(Order 721-A/2000, of 5 September and Order 170/2009, of 17
February)
Amendments to the professional statutes
Simultaneously, it should be amended the following professional statutes:
a. Statute of the court officials (Decree-Law 343/99, of 26
August),
b. Statute of the judges (Law 21/85, of 30 July) and
c. Statute of the Public Prosecution Service (Law 47/86, of 15
October).
Training and allocation of head officers and others
On the other hand it is necessary to appoint the head officers and to ensure the
training required to the new attributions, mainly in managing positions.
It is also inevitable to transfer officials to the new structures, which will be more
complex in the cases where the number of places in the new staff board is
lower than the current one; it is important to insure that the persons are
informed of the possible allocation options in advance.
These appointments shall be made as the new counties are set up; it is vital
that the respective legal diplomas are approved at least three months in
advance as of the date foreseen for the setting up.
Alteration of the physical structures30
In order to set up a new county one has to prepare the physical structures either
for receiving the new managing bodies or to organize the court-registries and
the public attendance that arise from the model of internal organization. Such
implies the evaluation of the current supply, organized by district, and the
drafting of layouts adequate to the desired disposition, as well as the eventual
intervention on the buildings, lease revocations, physical alterations, etc.
Alterations to structures and to information systems and electronic
transfer of cases31
It is necessary to make the electronic transfer of cases from the old structure
into the new one, with the necessary renumbering operations (and, in case of
extinctions or specialization, to do the physical transfer of the cases). The ITIJ is
responsible for carrying out this task and its time limit depends on the previous
30
31
It may imply expenses with assets and services.
See previous note.
definition by the CSM of the criteria for redistribution of the cases, to be
established after the legal definition of the structure of the new county.
Nevertheless, experience shows that the alterations envisaged by the proposed
reorganization have a strong impact in the different information systems
associated to the judicial cases, such as the costs system and the statistical
system, in charge of, respectively, the IGFIJ, IP and the DGPJ. In such
measure, contacts have already been made to allow such entities to prepare
the alterations resulting from the structure of judicial court to implement, even
before the respective legal board is definitively established.
Definition of implementation timings
Experience shows that there are fewer disturbances to the functioning of the
judicial system when the alterations occur during the judicial holidays, since the
number of users is then reduced, although it is also then that the human
resources available to help with the alterations are less; such requires a stricter
planning ahead.
As
soon
as
the
inter-services
structure
that
must
accompany
the
implementation of the reform is defined, a chronogram must be developed with
a detailed discrimination of tasks and responsible persons that allows setting
concrete targets and time limits for the implementation of the new judicial map,
therein including the specific tasks agreed with the Troika.
DGAJ, 20 January 2012