Are courts still working?

Courts have never ceased to work since the beginning of the crisis originated by COVID-19. In the first phase of the pandemic, in March 2020, several measures were taken within the justice system to prevent propagation of the pandemic also in this context, but courts have always been partially functioning, namely to ensure urgent proceedings under the terms provided by law, but also non-urgent proceedings, if all parties agreed to perform acts and proceedings through digital platforms which allow their remote performance or through any adequate means of remote communication, namely teleconferencing, video calling, or similar.

As of june 2020, a new regime for the functioning of courts and proceedings came into force, under which judicial proceedings returned, as a general rule, to normality and hearings and procedural acts were be carried out, either in person - in compliance with the health protection rules set forth by the DGS - or through adequate means of remote communication.

However, on February 1st 2021, due to the epidemiological situation which the country is going through, Law no. 4-B/2021 was enacted, establishing again a new legal framework for the suspension of hearings and procedural acts, by amending Law no. 1-A/2020.

More specifically, hearings and deadlines for performance of procedural acts in non-urgent proceedings have again been suspended with effects from January 22nd, 2021. All acts and hearings performed between such date and the date when Law no. 4-B/2021 was enacted were lawfully performed.

Notwithstanding this general rule of suspension, there is a number of relevant exceptions, including in the context of non-urgent proceedings, aiming at allowing the performance of the all acts that can reasonably be performed without jeopardizing the main goal of containing the spread of the pandemic. Furthermore, the urgent procedural acts and hearings (so defined either by law or by judicial decision) shall continue to be performed without any suspension or interruption.

 

Are persons summoned for any procedural acts required to attend?

Trial hearings of non-urgent proceedings shall always be conducted through appropriate means of remote communication. In urgent proceedings, trial hearings are also preferably conducted through adequate means of remote communication if that does not jeopardize the administration of justice.  They shall be conducted in person only if it is impossible to do so through remote means of communication and they can notably take place outside court premises when the interest of justice or other relevant circumstances so justify.

The law safeguards, however, that statements by the defendant and the plaintiff, witness testimony and statements by parties must always be made in court or other public premises, always respecting the rules of health authorities.

Furthermore, in any case and in whichever hearings, people who are required to attend and are over 70 years of age, immunocompromised or chronically ill (considered to be at risk according to the guidelines of the health authority) do not have to appear in court, in which case they may follow the proceedings through adequate means of remote communication, from their legal or professional address.

 

What happens to running deadlines during the epidemiological crisis?

As a general rule, deadlines for performing procedural acts and hearings in non-urgent proceedings are suspended. However, this general rule does not impede their performance when (i) all parties accept it and (ii) all parties expressly state in the proceedings to have conditions to ensure performance through computer platforms which allow performance by electronic means or through adequate remote means of communication.

On the other hand, proceedings which are being conducted in high courts are not suspended; court registries are also allowed to continue their management of the proceedings, and courts and other deciding authorities can also issue final decisions in pending proceedings, in which case deadlines to file for appeal or in other ways react to final decisions are not suspended either.

However, the following deadlines are expressly suspended under the Law: (i) the deadline for the debtor to file for insolvency; (ii) any acts to be performed in enforcement proceedings, except for payments due to the creditor resulting from the sale of the attached goods, as well as those acts which cause serious harm to the creditor’s livelihood or which lack of performance causes him an irreparable harm; (iii) the statutes of limitations and expiry deadlines related to the non-urgent proceedings;  this suspension takes precedence over any regime that establishes mandatory maximum statutes of limitations and expiry deadlines, which shall be extended by the period corresponding to the duration of the suspension.

In enforcement or insolvency proceedings the following acts are also suspended: acts relating to the judicial surrender of permanent dwelling or the surrender of leased property, notably in the context of eviction judicial proceedings, eviction special procedures or proceedings for surrender of immovable leased property, when such acts are confirmed by judicial decision as putting the (ex-)tenant in a weakness situation for lack of permanent dwelling  or for another pressing social reason.

The suspension of statutes of limitations and expiry deadlines on criminal and administrative offence proceedings may raise doubts on its compliance with the Constitution given the prohibition of retroactive application of more severe criminal laws for defendants (article 29 (4) of the Constitution of the Portuguese Republic).

 

How long will the regime of procedural requirements and time limits in force from 22.01.2021 last?

A Decree-Law will be published setting the end date of the exceptional circumstances and the end of this regime.

 

Are there any exceptional rules regarding the service of summons and notices?

Considering the epidemiological situation caused by the SARS-CoV-2 coronavirus and the disease COVID-19, Law no. 10/2020, of April 18, in force since April 19, introduced an exceptional and temporary regime for the service of summons and notices carried out via post, as well as for packaging delivery. Subject to the necessary adaptations, this law also applies to summons and notices made via personal contact.

Thus, since the 19th April:

  • The need to have registered mail and packages signed upon delivery is suspended until the exceptional situation of prevention, containment, mitigation and treatment of the epidemiological infection by SARS-CoV-2 and COVID-19 disease ceases;
  • The signature is replaced by oral identification and by providing the personal identification number, or any other suitable means of identification. The date when such means of identification was provided should be recorded;
  • Summons and notices made via registered letter with acknowledgment of receipt are considered to have been made on the date the personal identification number or any other legal means of identification is recorded.
  • Should data be refused, the postal officer draws-up a note of the incident in the letter or acknowledgment of receipt and returns it to the issuing entity. The summon or notice is deemed as having occurred with the note written by the postal officer.

 

 

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.