Justice of the Peace
In the Justice of the Peace the procedural requirements are simplified and the parties may even submit their cases orally. The disputes may be solved through mediation, conciliation or through a court hearing. If the agreement is not reached through mediation, the case runs its course and the judge tries the conciliation. If there is no conciliation, there is a hearing, presided by the judge, where the parties are heard, evidence is produced and a sentence is delivered by a judge.
The Justice of the Peace are competent to hear and decide on civil declarative actions, whose value does not exceed 15.000€, except those regarding family law matters, law of succession and labour law.
Resorting to the Justice of the Peace is subject to a single tax of 70€, which is paid by the party that loses the case; the judge may also decide to divide such value between the claimant and the respondent. Should they reach an agreement during the mediation, the value is 50€, divided by both parties. According to law, Legal Aid may be provided to cases that run in the Justice of the Peace.
Decisions given by the justice of the peace in cases whose value exceeds half the value of the ceiling set for the first instance court (from 2500€) may be appealed against in the county court where the justice of the peace has its seat.
The parties have to be present, in person, and may if they so wish be accompanied by a lawyer, a trainee lawyer or a solicitor. Notwithstanding, to have a lawyer is always compulsory in the cases specially provided for in law and whenever an appeal against a sentence occurs.
Law on the Organization, Competence and Functioning of the Justice of the Peace – Law n. º 78/2001, of 13 July, amended by the Law n. º 54/2013, of 31 July.
In Arbitration, the parties, through an agreement of will named arbitration convention, submit the decision to arbitrators of their choice, insofar as the dispute is not specifically allocated to a court or to compulsory arbitration and does not concern unavailable rights.
The arbitration convention may be of two kinds. It is named arbitral compromise when the arbitration convention has a current dispute for object, even if it is allocated to a judicial court. It shall be a compromise clause whenever it comprises future disputes resulting from a certain contractual or extra-contractual legal relation.
The entities that wish to formally promote the voluntary arbitration must request the Minister of Justice to establish Arbitration Centres, taking into account, in particular, the provisions set out in the Decree-Law 425/86, of 27 December.
The arbitration centres are entities that, besides providing information, make available, to the citizens, mediation and conciliation and if an agreement is not reached through any of these forms, the arbitration, in the form of an Arbitration Court. The Arbitration Centres function within their own territorial jurisdiction (geographic area), according to the subject-matter (type of disputes that they may solve) and, as a rule, according to the value (ceiling set for the disputes).
Due to basically social reasons and bearing in mind the relevance of certain areas, GRAL supports some Arbitration Centres: seven Arbitration Centres in the consumer area, two in the automobile sector, one in the industrial property, domain, trade and corporate names sector (ARBITRARE) and, lastly, the Administrative Arbitration Centre – CAAD.
Law on Voluntary Arbitration - Law n. º 63/2011, of 14 December
Through Mediation, the parties, with the help of an impartial third party, the mediator, try to reach an agreement as regards the dispute that opposes them. Unlike the judge or the arbitrator, the mediator has no power of decision and as such does not make any judgement. As an impartial third party, the mediator guides the parties, helps them to communicate with one another so that they may find, by themselves, the basis of an agreement able to end the conflict. The parties are therefore responsible for the decisions they make with the help of the mediator.
The mediator is an extremely important actor, insofar as he/she helps the parties to reach an agreement that contributes to maintain and, in certain cases, reset social peace. Mediation has a voluntary and confidential nature and the contents of the sessions cannot be disclosed nor used as evidence in a court of law.
There are three public mediation systems – family, labour and criminal. Civil mediation may also take place in the Justice of the Peace not only regarding proceedings that are running in the peace courts but also in cases where the dispute is out of their area of jurisdiction.
Law on Mediation – Law n.º 29/2013, 19 of April
Access to Law and Judicial Protection
The right of access to the law and to effective judicial protection is a fundamental right foreseen in article 20 of the Constitution of the Portuguese Republic enshrines the access to the law and to the courts, to legal information and to legal protection; this latter comprises the legal consultation and legal aid.
- Legal information is deemed crucial as far as information on the citizens’ rights and duties is concerned. In this context, the State plays a relevant role in the dissemination of the Law applicable to the citizens;
- Legal protection is granted in certain matters or in specific court cases, whenever the user has a particular interest and shows that he is in a difficult economic situation and whenever at stake are rights that may be in danger or likely to be in danger. The legal protection comprises the legal consultation and legal aid:
- Legal consultation means the technical clarification on the law applicable to specific matters and cases and on the existence or not of the legal grounds of claims;
- Legal aid must, as a rule, be required before the first procedural intervention and may include the following models: exemption from justice fees and other burdens with the proceeding, appointment and payment of the lawyer and of the lawyer appointed by the court, payment by instalments of the lawyer and of the lawyer appointed by the court and appointment of a civil enforcement agent.
National citizens and European Union citizens as well as the foreign and the stateless persons that legally reside in a Member State of the EU have the right to legal protection, should they be able to demonstrate that they are in a situation of economic deficiency. Profit oriented legal persons and the Limited Liability Sole Establishments do not have the right to legal protection. Non-profit legal persons have access to legal protection only as far as legal aid is concerned.