Rule of law

Participants agreed that there was no general issue with the independence and integrity of the judiciary, where judges were under ever-increasing scrutiny on their work. Participants considered that Portugal had a very formalist culture in the area of the rule of law as well as in others, which meant that the legal framework was generally good, but that implementing laws was the main challenge. One participant mentioned a survey of Portuguese judges which showed that nearly one out of five believed that legal proceedings were not always in line the rules, highlighting a need for stronger protocols for the early detection of these kinds of issues.

As far as the organisation of the judiciary was concerned, it was explained that judges now made up the majority of the High Judicial Council, and it was hoped that this aspect would not change in the 7/7 future. Several participants believed it problematic that some administrative authorities (such as national regulatory bodies) were making decisions that were essentially within the criminal law sphere including decisions involving multi-million-euro fines – with very limited possibilities for judicial review. It was also pointed out that Portugal was doing well in the area of digitalisation of justice, however judges were not included in the board in charge of controlling the IT system used, which created a blind spot without judicial oversight within the judiciary.

Participants considered the speed of justice to be the most central problematic issue related to the judiciary, which was attributed to a general lack of financial means in the sector. Examples were given of cases which had stalled for more than a decade in the investigation phase. One participant regretted the lack of effective sanctions for exceeding time limits set for investigative phases. There was also a historic tendency in Portugal to favour large-scale trials for complex white-collar crimes, which contributed to the impression that justice was dragging. This added to a feeling of burdensome processes, which affected trust in the judicial system.

There was a consensus among participants that access to justice was also a problem, most notably for the middle class, who did not qualify for legal aid and did not have the means to pay the full cost of judicial proceedings. The criteria for publishing judicial decisions were also deemed unclear. Additionally, it was pointed out that access to justice for prisoners needed to be improved, with participants mentioning the European Court for Human Rights' condemnation of Portugal's prison conditions. The Portuguese authorities stressed that legal aid was accessible to all individuals and entities lacking available funding, but that improvements were possible.

One participant referred to the above-mentioned survey of Portuguese judges that also showed that a quarter of respondents believed that a certain level of corruption existed in the profession – a perception which was much higher among the general population. Other participants, however, felt that the survey in question did not reflect reality. One participant pointed out that a national anticorruption mechanism provided under the National Anti-Corruption Strategy was still in its initial phases. It was also believed that the office of the Attorney General lacked sufficient financial means and a specific structure to carry out investigations in complex corruption cases. On corruption, the Portuguese authorities indicated that a complex legal framework existed, showing political will to take action in this area.

One participant mentioned that there was a general positive perception of authorities' compliance with the rule of law in the context of the COVID-19 pandemic. The Constitutional Court and the Ombudsman office played an active role in reviewing the measures taken by the authorities, which temporarily constrained certain rights, in what was the first use of the state of emergency since the return to democracy. It was felt, however, that the authorities did not always appreciate lawyers' proactivity during that period, which one participant said had led to the introduction of non-lawyers in the bar association's oversight body.