* This text is based on a study (towards a new geography for Portuguese justice) conducted by the Permanent Observatory on Portuguese
Justice at the Centre for Social Studies of the University of Coimbra, co-ordinated by myself and Professor Boaventura de Sousa Santos, the
Scientific Director of the Permanent Observatory on Portuguese Justice. The research team consisted of the following Permanent Observatory
of Portuguese Justice researchers: Catarina Trincão, Fátima de Sousa, Jorge Almeida, Paula Fernando and Susana Baptista. The study may
be viewed at http://opj.ces.uc.pt/pdf/A_Geografia_da_Justica_Relatorio.pdf.
** Permanent Researcher at the Centre for Social Studies of the University of Coimbra (Portugal) and Executive Director of the Permanent
Observatory on Portuguese Justice (cgomes@ces.uc.pt).
1 For the different ways of diagnosing bottlenecks in the Portuguese justice system (i.e. diagnosis from a sociological, political or operational
viewpoint), see B. de Sousa Santos, ‘A Justiça em Portugal: diagnósticos e terapêuticas’, 2004 Revista Manifesto 7, pp. 76-87.
2 The political agenda of several countries in Africa, Latin America and Eastern Europe include reform programmes for the judiciary which
are mostly financed by international agencies such as USAID, PNUD or DANIDA. The reforms of the judicial systems are also an issue that
is receiving growing attention from the World Bank, which has included them in its regional or national intervention policies.
Concerning the global reforms of the law and the courts, see B. de Sousa Santos, Toward a New Legal Common Sense, 2002, pp. 312-351.
3 See A. Zuckerman (ed.), Civil Justice in Crisis – Comparative Perspectives of Civil Procedure, 1999.
4 See, among others, Medidas para uma boa relação custo-eficácia tomadas pelos Estados Membros para permitir uma melhor eficácia da
justiça, 2000, 23rd Conference of the European Ministers of Justice, and H. Fix-Fierro, Courts, Justice and Efficiency, 2003.
5 See, among others, Marco Fabri, ‘Policies to enhance the quality of justice in Europe’, in Marco Fabri et al. (eds.), L’Administration de La
Justice en Europe et L’Evaluation de Sa Qualité, 2005, pp. 69-83.
http://www.utrechtlawreview.org/ Volume 3, Issue 1 (June) 2007 101
The transformation of the Portuguese judicial organization
Between efficiency and democracy*
Conceição Gomes**
Introduction
Since the late 1980s we have been witnessing a movement towards reform of the judicial system
on a global scale. The nature and scope of these reforms in each country however depend on
various factors. First of all, they depend on the sort of problems and bottlenecks considered to
be urgent at any given moment, which in turn is strongly influenced by how these are diagnosed.1
They also depend on the political, economic, social and cultural context of each country. In
addition, in countries where the reform process mainly depends on external endorsement, the
reforms tend to be selective, focusing on the sectors which, in the endorsers’ perspective, better
serve the purposes of economic development and good governance.2
In the central countries, especially in European countries with a civil law tradition, the
reforms of the judicial system began focusing on procedural solutions and on the allocation of
additional human resources and infrastructure to courts.3 Nevertheless, the exponential increase
in the demand for judicial services due to transformations occurring within the State, society and
the economy, whose major outcome was an explosion of debt claims, has revealed the insuffi-
ciency of such measures. This led to a growing investment in a different kind of measures that
influence the demand for judicial services, such as de-judicialization and decriminalization of
certain types of conduct and the creation of alternative dispute resolution procedures.4
In recent years, management reforms have become a major investment in several European
countries.5 Among this type of reforms are the redefinition of territorial jurisdiction and of the
CONCEIÇÃO GOMES
6 These kinds of the reforms have been carried out in countries like the Netherlands, Sweden and Norway. See P. Albers, Territorial
competencies of courts: some experiences of the Netherlands and developments in Europe, 2005; D. Chemla, Territorial Jurisdiction, 2003,
European Commission For the Efficiency of Justice (CEPEJ); J. Commaille, Territoires de justice – Une sociologie politique de la carte
judiciaire, 2000.
7 For a detailed description of the Portuguese judicial system, see Conceição Gomes, ‘Assignment of cases to the courts and within the courts
in Portugal’, in P. Langbroek & M. Fabri (eds.), Case Assignment to Courts and within Courts: a comparative study in seven countries, 2004,
Study Group on Management and Delivery of Justice (EGPA).
102
judiciary’s organizational structure.6 The uneven socio-economic development of the different
parts of the territory gives rise to the need for a debate concerning a new territorial organization
of justice. Although the debate on this issue focuses on different organizational solutions in each
country, there is a general tendency to provide a wider concentration of the judicial institutions.
The development of new communication and information technologies (NCIT), as well as the
development of the road network, which has enhanced accessibility, sustains the trend of these
reform processes.
As in other countries, in Portugal interest in the debate on the redefinition of territorial
jurisdiction has also increased. The current Government has placed the reform of the judicial
organization and the redefinition of territorial jurisdiction on the political agenda. The debate has
since been initiated. Viewpoints differ widely among judges, public prosecutors and lawyers.
Some are concerned that the Government’s proposals imply giving a wider scope to fewer courts,
which could restrict access to justice.
This article is based on the Portuguese process of reform of the judicial structure. It focuses
on the main strategic goals and guidelines that, in my opinion, must give direction to this kind
of reform. I am convinced that most of these principles and concerns are common to the large
majority of European countries with a civil law tradition and may very well also apply to them.
The paper has the following structure: first I will provide a brief description of the Portu-
guese judicial system and explain some statistical data related to the demand for judicial services;
second, I will explain why a territorial reorganization of first instance courts is necessary in
Portugal. Finally, I will present the main strategic goals that should guide the territorial reorgani-
zation of justice.
1. A brief description of the Portuguese judicial system
The territory of Portugal is divided into four judicial districts, whose centres are in Lisbon,
Oporto, Coimbra and Évora. These judicial districts are divided into a further 58 judicial circuits.
Judicial circuits can comprise one county (such as the Lisbon judicial circuit) or several counties.
The law establishes that there are 233 counties.7
The Constitution and the law establish that the following courts shall be part of the
Portuguese judicial system: the Constitutional Court, the Supreme Court of Justice, judicial
courts of first and second instance, the Administrative Supreme Court, administrative courts of
first and second instance, the Court of Auditors, arbitration tribunals, and justices of the peace.
The courts of first instance (administrative matters are dealt with in the separate administra-
tive court hierarchy) are organized according to subject matter (specialized courts and special
courts), territory, the value of the claims brought to court and procedure. The law provides for
the creation of specialized and special courts in a specific county (for both civil and criminal
The transformation of the Portuguese judicial organization: Between efficiency and democracy
8 There are six types of courts that are both specialized and special:
1) Varas Cíveis: these courts generally decide on civil cases (therefore they are specialized) when the value of the case represents over
14.963,94 Euro (therefore they are, special courts);
2) Varas Criminais: these courts decide on criminal cases (and are, therefore, specialized) when the trial should be held before a tribunal of
3 judges, or involves a jury (therefore they are special courts);
3) Juízos Cíveis: these courts decide on civil cases when its value is between 14,963.94 and 3,740.98 Euro;
4) Juízos Criminais: these courts decide on criminal cases when the trial should be made by only one judge;
5) Tribunais de Pequena Instância Cível: these courts decide on civil cases when their value is under 3,740.98 Euro;
6) Tribunais de Pequena Instância Criminal:these courts decide on criminal cases that follow a special procedure (misdemenaours).
9 Low intensity disputes are disputes in which the courts are used instrumentally for certification purposes only. See B. de Sousa Santos et al.,
Os tribunais nas sociedades contemporâneas – o caso português, 1996, p. 157.
103
cases and according to the kind of procedure and the value of the action), when the number of
cases or the complexity of the subject matter so requires.8
Specialized courts may have territorial jurisdiction over more than one county or over more
than one judicial circuit. In special circumstances, a judge may be appointed to more than one
county court. The courts of specialized jurisdiction are: criminal investigation courts; family and
juvenile courts; labour courts; commercial courts; maritime courts; and judgment-execution
courts. Some counties, especially those of the larger cities have all of these courts, such as Lisbon
and Oporto. Other have only some of them. Coimbra, for example, does not have Tribunais de
Pequena Instância Cível and Tribunais de Pequena Instância Criminal. Therefore, cases that
should be decided by those courts are instead decided by the Juízos Cíveis and Juízos Criminais.
Most counties in Portugal do not have any of the courts mentioned above (the so-called
specialized and special courts). Therefore, all cases, both criminal and civil, are decided by the
county courts (tribunais de comarca) These tribunais de comarca are courts of general jurisdic-
tion that are competent to decide on all cases not submitted by law to another court.
2. The demand for adjudication
The Portuguese courts, like in the early 1990s, are still mostly preoccupied with low intensity
disputes,9 a large number of ‘false disputes’ and with ‘mass’ criminality consisting of crimes such
as driving without a licence, driving under the influence of alcohol or issuing uncovered cheques.
In the period 2000-2004, civil litigation represented on average 83% of all cases brought before
the courts. This percentage can be broken down as follows: 53% civil cases (consisting of 29%
executions and 24% declaratory actions); 26% injunctions; and 3% child custody actions.
Criminal cases represent 18% of the caseload. With different relative weight attached to cases,
civil litigation (consisting of the total of declaratory actions and executions) prevails in almost
all counties.
Portuguese courts are still overused when it comes to debt claims, which largely dominate
civil litigation, especially in large urban conglomerations, mostly in Lisbon and Oporto. In the
period 2000-2004, debt claims made up 60% of the caseload. In Lisbon and Oporto this percent-
age rose up to 85 and 73.5% respectively. In most cases, the value of such claims is only minor.
For instance, 50% of the declaratory actions in debt claims represent a value of less than 1,000
euros (in Lisbon, 66%) and an average of 35.4% represent a value less than 500 euros.
The relatively high burden of debt claims weighing on the civil litigation process reveals
that corporations (mostly financial or commercial companies) represent the bulk of plaintiffs in
the civil judicial system. Between 2000 and 2004, 74.2% of all civil cases were brought by
corporations. In Lisbon and in Oporto, the corporations’ share in the caseload rose up to 92.8%
and 87.6% respectively.
CONCEIÇÃO GOMES
10 In the late 1980s, an attempt was made to create circuit courts with wider territorial jurisdiction, which was however unsuccessful.
104
A large number of these debt actions are initiated by ‘repeat players’ (such as cable
television operators, cellular phone companies, insurance companies, banks and consumer credit
companies), i.e. litigants that repeatedly engage the courts for similar disputes. Their demand for
judicial courts is quite selective and focuses on frequent litigation against sporadic partners; that
is, on debt collection, mainly where the debtors are individuals or less economically powerful
corporations. Over the past few years, new ‘repeat players’, such as for instance cellular phone
companies and cable television operators, have emerged. This means courts are being intensively
utilised by institutions that have the economic capacity to manage their litigation in a rational
manner.
The type of offences that commonly reach trial is, as mentioned before, dominated by
crimes that include misdemeanours and crimes of medium seriousness, part of which are what
is termed ‘mass’ criminality (such as driving without a valid driving licence and driving under
the influence of alcohol). These two types of crime and the crime of issuing an uncovered cheque
represented in total about 40% of the offences to reach trial in the period 2000-2004. Road traffic
offences dominate in the counties, except for in Lisbon and Oporto, where the crime of issuing
an uncovered cheque is the most common by 31% and 36% respectively. Crimes such as
corruption, trafficking and environmental crimes, are only residually expressed in the statistics
in most counties. Nevertheless, the social perception is that actual criminality is much higher than
what is expressed through the judicial system. Some of the crime so perceived is part of the more
serious crime which cannot be analysed from a quantitative perspective. This type of crime
requires special responses from the judicial system, which in the current organization of the
justice system are not fully forthcoming.
3. Reasons for the territorial reorganization of Portuguese courts
In my opinion, there are three main reasons to discuss the current model of territorial organiza-
tion of the Portuguese courts. The first one is that the structure of the judicial organization, which
dates back to the 19th century, has never taken into account the political, social and economic
transformations that have occurred since. The only relevant changes made in this existing
framework of judicial organization were those required by the Portuguese democratization
process in the mid-1970s.10 Reforms in the organization of the justice system have mainly had
the purpose of responding to the exponential growth of the demand for judicial courts, initially
through the allocation of more human and material resources and a simplification of the proce-
dures coupled with de-judicialization, and, more recently, through the reinforcement of the
computerization of the courts. None of these reforms implied any modification to the organiza-
tional model of the justice system.
The second reason why the territorial organization of the judicial system needs discussing
lies in the outcome of the transformations in society and in the economy. Portuguese society has
undergone considerable changes over the past few decades. Some of these have had strong
repercussions on the judicial system. In fact, the quantitative and qualitative changes in the
structure of the demand for judicial courts since the mid-1980s (brought about both by the
intensification of the demand concerning traditional disputes, such as that caused by the dramatic
growth of debt claims brought by corporations against individuals, and by increasing demand in
new fields of litigation); the greater visibility of certain types of crime (economic crime,
The transformation of the Portuguese judicial organization: Between efficiency and democracy
11 Source of the statistical data: Department of Planning of the Ministry of Justice.
105
trafficking of human beings, drugs and weapons); the mediatization of justice; the globalization
of law; the deepening of societal differences; the emergence of new public risks in various
domains; and the economic demands in respect of the functioning of the justice system are all
changes which, among other things, force a re-thinking of the structure of the justice system.
These transformations alter the social context in which the judicial institutions function
nationwide. However, not all counties and courts throughout the national territory are affected
in the same way. The great heterogeneity of social and economic development processes in the
territory has given rise to deep socio-economic and demographic asymmetries in Portugal. The
areas that attract most of the population are those which reveal greater economic dynamism or
greater specialization in the industry and services sectors. The main manifestations of such
processes are widely known: intense inter-regional movements; a rural exodus; the growth of
extended peri-urban areas, mostly in the Lisbon area; an increase in regional asymmetries; the
intensification of the process of territorial metropolization; and the growth of urban intensity in
small and medium-sized towns.
The consolidation of such tendencies has accentuated the contrast between the coastal areas
and the interior and between rural and urban spaces. This is reflected by a strong decrease in the
number of residents in the rural areas coupled with the resulting expansion of the urban centres.
The demographic dynamics that occurred are based on two complementary tendencies: the
depopulation of vast rural areas and the urbanization of the population. In 2001, ¾ of the resident
population was concentrated in areas with predominant urban characteristics.
The different territorial development dynamics have also caused deep asymmetries in the
demand for judicial courts, thus creating what is referred to as multiple ‘judicial countries’ within
the same country. The volume of the local/regional demand for judicial courts shows a close
relationship with the population density. With strict rules for the territorial jurisdiction of the
courts, the demand for judicial courts has followed the dynamics of the territorial concentration
of the population and of the economic sectors, revealing a clear juxtaposition between the areas
of greater socio-economic development and the intensity of the demand for judicial courts . The
courts located in smaller-scale urban centres, especially in the country’s interior of the country,
have been losing case volume.
Comparing the early 1990s with the average over the period 2000-2004, about 170 county
courts have registered a decrease in the number of cases brought, while between 2000 and 2004,
40 county courts witnessed a decrease in the number of cases brought. This reduced caseload is
also attributable to other factors, especially to legislative reforms, which withdrew from the
courts some of the cases formerly actionable before them, and by the creation of new counties,
which affected the demand in the adjoining counties. However, the transformation was mostly
induced by the socio-economic and demographic dynamics described. Nowadays, most of the
county courts deal with an annual average of cases brought of under 1,000 (54%, 123 counties),
with 32% (73 counties) dealing with an average number of cases of under 500. From the 233
counties, only 26 list an average number of cases brought that is over 5,000, and 10 of these,
corresponding to 4% of the counties, of over 10,000.11
These asymmetries and the heterogeneity of the ‘judicial country’, not only in respect of
the volume of the demand, but also in respect of the nature of the litigation, demand a thorough
re-thinking of the current model of judicial territorial organization. The new model must provide
CONCEIÇÃO GOMES
12 See M. Manuel Leitão Marques et al., ‘The Portuguese System of Civil Procedure’, in A. Zuckerman (ed.), Civil Justice in Crisis –
Comparative Perspectives of Civil Procedure, 1999, pp. 413-441.
13 The justices of the peace are non-judicial courts which can decide on low value civil disputes (e.g. disputes emerging from condominium
rights and duties), and on civil compensations resulting from misdemeanours. However, they are not competent to decide on family disputes,
torts and labour cases.
14 Labour mediation is a very recent phenomenon that became possible through a protocol signed between the Ministry of Justice and several
trade unions in December 2006. It includes labour disputes that do not concern industrial accidents or the refusal of rights. Labour mediation
is not mandatory and implies the agreement of both the employee and the employer.
15 Criminal mediation has not yet come into force in Portugal. However, the current Government has presented to Parliament a proposal which
provides for the possibility of mediation in case of misdemeanours.
106
a differentiated judicial framework, which takes into account not only the volume and the nature
of the litigation, but also the social and economic characteristics of such localities and regions.
The third reason that justifies the territorial reorganization of justice is that the current
model of judicial organization and the general reforms introduced in the judicial system have not
been able to grant an effective, efficient and high-quality standards response to the demand for
judicial courts . Over the past ten years, some important changes have been made to the judicial
system in Portugal. Those changes can be divided into three main groups of reforms: reforms
aiming at de-judicialization and decriminalization of certain types of conduct and at the creation
of alternative modes of dispute resolution, procedural reforms and organizational reforms.12
Concerning the first group, there has been a reformist tendency to expand the number of
cases that can be resolved by alternative modes of dispute resolution, especially with the
implementation of the institution of the justice of the peace (Julgados de Paz)13 (16 in total) and
the reinforcement of mediation. Traditionally, civil and commercial disputes could already be
resolved by arbitration (institutional or ad hoc). Arbitration and mediation have since evolved
towards other areas, such as family disputes and, more recently, labour litigation14 and the trying
of misdemeanours.15 Although the tendency for legal reform in this direction is strong, the
relative share of these alternative modes of dispute resolution in the effective resolution of social
litigation is not yet significant.
In 2003, one of the most far-reaching reforms in the civil judicial system concerned the
action for execution. A new legal profession (solicitador de execução) was introduced that
reduced the intervention of judges in such proceedings.
The de-judicialization of the mutual consent divorce and the decriminalization of the
issuing of an uncovered cheque up to a certain amount have also had a major impact on the
demand for judicial courts .
However, the most relevant changes have been the procedural reforms, aiming at simpler
and faster civil and criminal procedures. An example of these reforms is the creation and,
afterwards, widening, of the special declaratory procedure, in order to obtain a faster judgment.
To simplify debt recovery, an injunction procedure was created in 1993.
In criminal procedure, the purpose of the reforms has also been the simplification of the
process related to minor crimes, with the introduction of special procedures: a summary and a
very summary procedure (introduced in 1987) and a shortened procedure (introduced in 1995).
A third kind of reforms is related to the organization and administration of justice. Over
the pas ten years, the tendency had been to increase the number of both human and material
resources available in the judicial system, coupled with investments in new technologies. Where
the organization of the judiciary is concerned, the main changes concern the creation of special-
ized courts, especially in the area of family law, and specific courts. Considering the importance
of debt recovery in civil litigation and minor crimes, small claims courts were created in Lisbon
and Oporto.
The transformation of the Portuguese judicial organization: Between efficiency and democracy
16 According to the official Portuguese statistics on justice, in 2004, the number of pending cases in the Portuguese courts was over 1,400,000
and, in 2006, grew to about 1,500,000. The number of pending cases tends to increase in nearly all counties, even in those where only a small
number of cases are habitually brought.
107
With all of these reforms, the question that arises is the following: why did some of those
reforms have such little positive impact? And why did some even have a negative impact? In fact,
even though there has not been any dramatic deterioration in the functioning of the Portuguese
justice system in recent years, the truth is that there has not been a significant improvement
regarding efficiency, effectiveness and quality either. In fact, the average duration of proceedings
has increased. In most counties, the judicial system remains unable to respond to the demand
swiftly, leading to high numbers of pending cases in several courts, mostly in the courts of the
large urban centres.16
The quality of the response of the judicial system cannot be measured only by the volume
of pending cases. Nevertheless, the swiftness of the judicial response to the demand from society
is an essential component of its quality. The increase in the amount of cases pending in court
indicates a pattern of inefficiency in the judicial system that cannot be altered only by measures
acting upon the demand. It requires other interventions, namely of a procedural nature, that are
able to make the procedures less bureaucratic and, most of all, measures that allow for a profound
change in the management of courts. One of the major problems faced by the Portuguese courts
is that of management inabilities. The reform of the judicial organization may be an excellent
way to introduce changes in the management of human and material resources and of judicial
cases.
4. The main strategic goals of the territorial reorganization of justice
4.1. Reaffirmation and promotion of the citizens’ access to the law and the courts
This is one of the constitutionally enshrined rights that is central to the judicial system. The State
establishes a system of access to the law and to the courts, the aim of which is to encourage all
citizens to get to know, claim, or defend their rights, regardless of their economic, social or
cultural situation. According the Portuguese Constitution, this right takes on three different
forms: legal information, legal consultation and legal aid.
Firstly, any reforms of the judicial system must not only never restrict these rights, but,
moreover, seek to enhance them. In this sense, the reform of the map of the judiciary by provid-
ing a judicial reorganization of the territory must also attempt to eliminate asymmetries and
social, economic and cultural constraints, for example by promoting awareness of these rights
and affirming the possibility of claiming them (for instance, through the establishment of public
offices for legal consultation) , or by promoting the use of the courts by the citizens. The reform
must not, therefore, aggravate the costs of litigation, especially not for citizens. On the contrary,
the reform should promote greater access to justice in areas that, until now, have proven to be
struggling with serious accessibility constraints, mostly of a geographical nature. Access in
conflicts related to family and juveniles is a paradigmatic example, as such cases are heard in
centralized courts that are located in the judicial circuit town. Our proposals for reform envisage
a multipurpose network for justice services which would include judicial courts and services such
as front offices with hearing rooms, and the implementation of an itinerary justice system. I think
that these would be innovations with great potential to promote access to the law and to the
courts.
CONCEIÇÃO GOMES
108
Secondly, if we consider the right to access to justice, we have to think of a new paradigm
of the public policy of justice, which is not too dependent on the courts. The courts of law are,
indeed, a major source of public justice, but not the only source. The current consensus is that
courts cannot decide all cases and that alternative modes of dispute resolution play an important
role in access to justice. However, courts should not, as is still the case in Portugal, be so
intensely preoccupied with ‘mass’ litigation, or with cases in which there is no real dispute, or
cases whose major plaintiffs are corporations and usually ‘repeat players’. The courts must
refocus on ‘real disputes’, on high intensity cases, independent of the nature of the plaintiff, in
response to serious criminality and in the promotion of citizens’ rights. For that, the judicial
reforms should be conducted with a view to establishing an integrated system of dispute resolu-
tion. Alternative modes of dispute resolution (like mediation, arbitration, justices of the peace)
are constantly referred to in speeches on the reform of the judicial system. However, in Portugal
attempts towards more alternative dispute resolution have so far been of little effect.
4.2. Enhancing the quality of justice
In Portugal, the debate concerning the judicial reforms continues to be highly dominated by
issues related to quantity: pending proceedings and delays. Nevertheless, the quality of the
judicial system is also more and more becoming a matter for debate in several countries and in
international forums. This subject can be viewed from several angles, which range from effi-
ciency and effectiveness to access, the relationship with the citizen and the quality of sentences.
The arising of highly complex cases in the new social context of justice provides a serious
challenge to the judicial courts.
In order to live up to this challenge it is necessary to create differentiated judicial organiza-
tions for hearing cases. The complexity of disputes varies and therefore requires from the judicial
system a varied response. Therefore, prior to any reform process, it is fundamental to acknowl-
edge fully the volume and nature of the litigation. The solutions for judicial reorganization
accordingly proposed shall seek to respond efficiently to different types of litigation. The
reorganization of the justice system must distinguish between different levels of complexity of
litigation, not only aiming at improved effectiveness, efficiency and quality, but also at promot-
ing that courts are also seized of other matters coming under the heading of high intensity
litigation.
4.3. The increase of efficiency, effectiveness and transparency of the judicial system
As previously mentioned, the judicial system keeps revealing strong deficits of efficiency and
effectiveness, whose main symptoms are the high level of pending cases and the delays.
This situation has given rise to the mainly functional operation of the system which is
mostly based on routine and a tendency towards quantitative productivity with the ‘litigation
volume’ indicator as the point of reference and no special consideration given to the nature of the
litigation. It is, for instance, frequently advocated that an exact number of cases be defined per
judge (workload) without any specification as to the type of case. A rational reorganization of
justice that is able to distinguish cases based on their nature and complexity would not only
increase the efficiency and the efficacy of the justice system, but also its transparency, allowing
for a more qualitative evaluation of its functional performance.
4.4. Reinforcement of the management of the judicial system
There seems to be quite general consensus that the deficit of organization, management and
planning in the Portuguese judicial system is responsible for most of the inefficiency and
The transformation of the Portuguese judicial organization: Between efficiency and democracy
17 See Conceição Gomes (coord.), Como gerir os tribunais? Análise comparada de modelos de gestão e organização dos tribunais, 2006,
Permanent Observatory f the Portuguese Justice, Centre of Social Studies, Coimbra, and A Administração e Gestão da Justiça: Análise
comparada das tendências de reforma, 2001.
109
inefficacy of its functional development. Therefore, it is fundamental to implement urgent
measures in order to alter the work methods, to provide a better and more efficient management
of human and material resources and better communication between courts and other comple-
mentary justice services.17
The introduction of such measures will require the definition of wider territorial boundaries
beyond those of the counties, which will offer the benefits of scale. In this way it will become
possible, for instance, to define policies for the flexible employment of human resources, to
create auxiliary services to the functioning of justice (technical support, probation services, etc.)
or to define case allocation rules according to the nature, the complexity and the specificity of
cases.
5. Related strategic reforms
In addition to these guidelines and goals, other reforms, which are also of strategic importance
for the judicial system, can be perceived as significant for the success of the territorial reorgani-
zation of justice.
5.1. Computerization of the judicial system and its network
The new communication and information technologies (NCIT) present an enormous potential for
transforming the judicial administration system where the administration and management of
justice (more productivity, efficiency and cost reduction), the transformation of the daily practice
of judicial actors and the promotion of access to the law and to the courts are concerned. The
NCIT enable an increased circulation of information which has a highly positive effect on the
information and communication management within the judicial system, as well as allow closer
and more transparent access to information relevant to the exercise of rights. It is nowadays
recognized that the NCIT have a fundamental role in the interface between courts and the general
public. The model of the judicial map which I support implies an integrated system of computer-
ization which makes it possible, for instance, that the citizen may obtain information or deliver
documents concerning his/her case at a front office.
5.2. New procedural paradigms, both in civil and criminal law
Among judicial agents, there appears to be consensus about the idea of a new paradigm of
procedure, which is less complex and less bureaucratic, and, as a consequence, less prone to
causing delays and more adequate to the expectation of citizens. This new paradigm of procedure
is mostly determined by the principles of oral hearing, swiftness and simplification. The rules of
procedure must also distinguish between on the one hand high intensity and low intensity
litigation and on the other hand between minor crimes and more serious criminality. For instance,
in the case of criminal justice, it is fundamental that new measures be implemented that allow
for the wider use (in some cases, the compulsory use) of the mechanisms of expediency and
consensus.
CONCEIÇÃO GOMES
18 See Marco Fabri et al. (eds.), L’Administration de la Justice en Europe et L’Évaluation de Sa Qualité, 2005, and B. Ostrom & R.A. Hanson,
Effciency, Timeless and Quality: A New Perspective from Nine State Criminal Trial Courts, 1999.
110
5.3. New model for training and appointment (which would have territorial boundaries as a
reference point) of magistrates and court clerks
The recruitment and the initial and continuous training of magistrates occupy a central position
in any project for the reform of the justice system, aiming not only to increase efficiency, but also
to improve the quality of justice and to create a new judicial culture. One of the essential
components of any future structural reform of the judicial system is the manner of training and
appointment of judges and public prosecutors. The preference for differentiated treatment of the
different types of litigation as advocated in our proposals for reform requires a larger investment
in continuous training, as well as in specialized training. It also implies a change in the current
models of career organization and appointment, which are mostly based on criteria which focus
on the length and classification of service and not on the technical preparation and the suitability
of the candidate’s profile in view of the tasks to be performed. This is especially important in the
specialized jurisdictions, such as for example family and juvenile courts. The lack of specialized
training of the judicial actors contributes to the tendency towards feeble judicial judgment in the
more complex or more specific cases, which in turn contributes to the erosion of the legitimacy
of courts as mechanisms for the resolution of legal disputes.
The appointment of magistrates and court clerks should have the territorial scope as a
reference point, not a specific court.
5.4. Evaluation of the judicial system
As mentioned above, the massive increase in litigation, mostly ‘mass’ litigation, aggravated the
tendency for evaluating court performance and court actors in terms of quantitative productivity.
This leads to the kind of judicial performance which is based on routines, is increasingly selective
in terms of the efficiency with which it can respond to the demand for judicial courts , and tends
to avoid cases and legal fields which require more complex, innovative or controversial deci-
sions.
In democratic societies, the judicial organization, like other State organizations, must be
subject to a process of external evaluation and must give account of its performance. The creation
of indicators and quality patterns which allow the evaluation of the judicial system is a subject
that is currently being debated in several European countries - a debate which Portugal must take
an active part in.18
6. Conclusion
Reforms of the judicial system are on the political agenda in many countries. However, although
the movement toward reform is a universal movement, the kind of efforts and measures devel-
oped in each country may vary depending on diverging factors.
In Europe, especially in countries with a civil law tradition, the reforms of the judicial
system began to focus on procedural solutions and on the allocation of more human resources
and infrastructure to courts. Nevertheless, the exponential increase in the demand for judicial
courts which was the result of transformations occurring within the State, in society and in the
economy and whose major outcome was an explosion of debt claims, has revealed the insuffi-
ciency of such measures. This led to a growing investment in other types of measures that
The transformation of the Portuguese judicial organization: Between efficiency and democracy
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influence the demand for judicial courts , such as de-judicialization and the decriminalization of
certain types of conduct and the creation of alternative modes of dispute resolution.
More recently, reforms of the management of the administration of justice have become
a major investment. The redefinition of territorial jurisdiction and of the judiciary’s organiza-
tional structure became important issues in the debate as a result of various factors, especially
the uneven socio-economic development of different parts of the Portuguese territory.
The redefinition of the justice territories and of the judicial organization structure is now
a central issue in the debate concerning the justice administration system in several European
countries where reforms or discussions of the territorial organization of justice are taking place.
The Portuguese Government has also included the reform of the judicial organization on the
political agenda. This type of reform intends to achieve objectives such as the rationalization of
costs with infrastructures and resources which have proven to be unnecessary due to the uneven
socio-economic development of different parts of the territory, in addition to objectives of
effectiveness, efficiency and the quality of the administration of justice.
The reforms of the territorial organization of justice do not solve by themselves all the
bottlenecks and problems faced by the judicial system. Nevertheless, if these reforms were to be
incorporated in a wider strategic agenda of reforms, they may not only positively contribute to
the resolution of such problems and bottlenecks, but also boost the strategic reform process for
the whole of the judicial system.
The territorial reorganization of justice is a complex reform, both as to the definition of the
model to be followed, and as to its completion. The reform must attempt to achieve a more
adequate balance between the division of judicial tasks in the organization and the territorial
socio-economic and demographic dynamics and the evolvement of the number of cases brought,
pending and disposed of.
The reform must also permit that the restructuring of the justice system as a whole is
effectuated in such a way as to allow an effective and efficient response, whether this concerns
the new sociological profile of the courts’ performance (quantitative and qualitative changes in
the type of litigation, globalization and the new frontiers of the law, economic demands made of
the functioning of the justice system, new types of criminality, corruption, the mediatization of
justice, increased tension between political powers and judicial powers), or whether it concerns
the new social context of justice arising out of factors such as the deepening of societal differ-
ences, increased cultural and religious diversity and the emergence of new public risks in the
fields of the environment, health, and the NCIT.
However, most of all, its main goal must be to seek the better quality, efficiency and
effectiveness of and wider access to the law and to justice, thus allowing for the re-centring of
the courts’ functions on high intensity disputes, on the response to serious crime and on the
promotion and defence of citizens’ rights. These must be the main guidelines of the reform.
