European Commission > EJN > Taking of evidence and mode of proof > Portugal

Last update: 09-05-2005
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Taking of evidence and mode of proof - Portugal

 

TABLE OF CONTENTS

I. THE BURDEN OF PROOF I.
1.
a) What are the rules concerning the burden of proof? a)
b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence? b)
2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact? 2.
II. THE TAKING OF EVIDENCE II.
3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion? 3.
4.
a) If the application of a party concerning the taking of evidence is approved, what steps follow? a)
b) In which cases can the court reject an application of a party to obtain evidence? b)
5.
a) What different means of proof are there? a)
b) What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions? b)
c) Are certain methods of proof stronger than others? c)
d) In order to prove certain facts, are certain methods of proof obligatory? d)
6.
a) Are witnesses obliged by law to testify? a)
b) In which cases can they refuse to give evidence? b)
c) Can a person who refuses to testify be sanctioned or forced to give evidence? c)
d) Are there persons from whom evidence cannot be obtained? d)
7. What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via new technology such as television or videoconferencing? 7.
III. THE EVALUATION OF THE EVIDENCE III.
8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment? 8.
9. As a party to the case, will my own statement count as evidence? 9.

 

I. THE BURDEN OF PROOF

1.

a) What are the rules concerning the burden of proof?

The rules concerning the burden of proof seek to define the person involved in a case who has to demonstrate certain facts so that the validity of the argument presented by that person in court can be assessed.

In this area, the general criterion is the following: it is up to the person who invokes a right to provide proof to the court of the facts which give rise to such a right, or rather, the facts which normally produce such a right.

The opposing party must show that abnormal events have occurred which set aside or exclude the effectiveness of the factors generating the right in question.

Thus it is up to the party against whom the right is invoked to demonstrate facts impeding, modifying or terminating the right. Impeding facts are those which act as obstacles to the effective creation of the right. Modifying rights are those which alter the scope of the right which has been established. Terminating facts are those which, after the right has been established as valid, cause it to lapse..

In case of doubt the facts must be considered as constitutive and, consequently, proving them must be the responsibility of the party coming to court to exercise the right in question.

In cases where one party is not seeking a judgment against the other party but merely wishes the court to establish the non-existence of a right or a fact, it is up to the defendant (the party against whom the case has been brought) to prove the elements constituting the right which is being claimed.

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In court actions which must be brought within a certain time limit following the date on which the plaintiff (the party initiating the action) has become aware of a certain fact, it is up to the defendant to prove that this time limit has already expired, unless there is another solution especially established by law.

If the right invoked by the plaintiff is subject to a suspensive condition (an uncertain event in the future on whose occurrence the parties have made the effects of the legal transaction dependent) or to an initial deadline (the moment in time after which the right may arise) , it is up to the applicant to prove that the condition has been met or that the initial deadline has been passed; if the right is subject to a termination condition (an uncertain event in the future on whose occurrence the parties have made the cessation of the effects of the legal transaction dependent) or to a final deadline (moment in time after which the right lapses) , it is up to the defendant to prove that the condition has been met or that the final deadline has been passed.

The above rules are reversed when there is a legal presumption (consequence or inference which the law deduces from a known fact to establish an unknown one) , exemption or release from the obligation to comply with the above rules for the production of proof, or a valid agreement to that effect, when the opposing party has, culpably, made it impossible for the proof to be presented by the party which should produce it, and, in general, whenever the law so determines.

An agreement to reverse the burden of proof is invalid where an inalienable right is involved (one which a party cannot waive merely by making a statement that it wishes to do so) or where it might make it excessively difficult for one of the parties to exercise the right. Similarly, an agreement to exclude any legal mode of proof or to allow a mode of proof other than that provided for by law is also invalid. If the decisions arising from the law in relation to the proof are based on reasons of public policy, such agreements are invalid under all circumstances.

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When proof is presented by the party on which the burden of demonstrating a particular fact falls, the opposing party can present counter-evidence with a view to raising doubts or uncertainties in the mind of the person judging the reality of the event which it is sought to establish. If there is sufficient doubt, then the decision must go against the party which had the obligation to prove the fact in question.

If there is any doubt on who has the burden of proof, it should lie with the party which stands to benefit from the fact.

b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

Yes, there are such rules.

Firstly, proof is not required for well-known facts, in other words those of public knowledge.

In the same manner, a party which has a legal presumption (defined above) in its favour does not need to prove the presumed fact.

As a rule, legal presumptions can be rebutted, that is, refuted by the presentation of counter proof. There are, however, situations in which the law does not allow rebuttal of the presumption. This is the case, for example, when the law considers as always acting in bad faith any third party that acquires a right after falsification has been established (situations where it is sought to demonstrate that, by an agreement between the parties in a certain transaction, and with the purpose of deceiving third parties, there was a discrepancy between the declared transaction and the real intention of the declaring party)

With regard to the presumptions which can be opposed by proof to the contrary, there are several types envisaged by law. The following examples can be given:

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- A person in possession of a movable or fixed object and who has the duty to look after it, and also a person who has taken on the duty of looking after any animals, is responsible for any damages that the object or the animals may cause, except if it is proven that the person was not at fault or that the damage would have occurred anyway, even if that person was not at fault;

- A person who causes damages to another person by carrying out an activity which is dangerous due to its very nature or to the nature of the means used, must repair them, except if it is shown that the person took all precautions required under the circumstances in order to avoid causing said damage;

- It is up to a debtor to prove that his defaulting on or non-compliance with an obligation was not his fault;

- Titled possession is assumed to be honest while non-titled possession is assumed to be dishonest;

- A possessor is presumed to hold the right to ownership except if there is a documented presumption in favour of someone else preceding the start of said possession;

- When there are conflicting documented legal presumptions, priority between them will be that established in the respective legislation;

- The dividing wall between two buildings is presumed to be common to both throughout its height when the buildings are equal in height, and to the height of the lower building if the buildings are not;

- Walls between rural properties, or between patios and gardens of urban properties are also presumed to be common unless there is some indication to the contrary. Indications which exclude the presumption of commonality are: a) The existence of a slope buttress on only one side; b) When, on only one side of the wall, there are protruding stone supporting brackets embedded throughout the width of the wall; c) The contiguous property is not walled in the same way on the other sides. In the first case, it is presumed that the wall belongs to the property on whose side the buttress is located; in the other cases, it is presumed to belong to the property on whose side the abovementioned constructions and indications are to be found; if the wall supports, across its entire width, any construction which is on only one of the sides, it is presumed, similarly, that the wall belongs exclusively to the owner of the construction;

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- It is presumed that the father of a child born or conceived during its mother’s marriage is its mother's husband;

- If an inheritance is accepted under benefit of inventory, only the listed assets in the estate are liable to taxes and other charges, except if the creditors or heirs can prove the existence of other assets;

- If an inheritance is accepted outright, the liability for taxes and other charges cannot exceed the value of the inherited assets. However, in this case it is up to the heir to prove that there are insufficient funds in the inheritance to meet the demands for taxes and other charges;

- If a will is torn or is in pieces it will be considered to be revoked, except when it can be proven that the damage was caused by someone other than the testator or that the testator did not intend to revoke the will or that he/she was not in possession of his/her mental faculties. It is presumed that the damage was caused by someone other than the testator if the will was not found among the belongings of the testator at the time of his/her death;

- The full or partial disposal of a bequeathed item implies the revocation of the relevant part of the bequest; the revocation takes effect even if the disposal is annulled on the basis of proof that the transferor did not want to dispose of it, or even if the transferor has reacquired ownership of the item by other means. Furthermore, revocation of the bequest is justified by the transformation of the item into another, with a different form and name or another nature, when the transformation is effected by the testator. Proof that the testator, when disposing of or transforming the item, did not want to revoke the legacy, is, therefore, admissible.

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2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court freely considers the proof and the judge makes his decision on the basis of his prudent belief regarding each fact. His belief is reached by rational, well-founded mechanisms.

To arrive at this belief the judge can, as a rule, use any mode of proof.

However, when the law requires some special formality for the existence or demonstration of a legally relevant event this cannot be dispensed with. This will be the case, for example, when it is required by law to produce documentary proof or when the law excludes the admission of proof given in testimonies.

The principle of free consideration of proof is also overruled in situations where there is proof from judicial admission or when there is legal presumption.

Since the court cannot abstain from making a judgment on grounds of irresolvable doubt regarding the facts in dispute, it must, in situations where proof is lacking, decide against the party which is responsible for proving the fact.

II. THE TAKING OF EVIDENCE

3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?

The taking of evidence does not always require the application of one of the parties. On the contrary, the law allows for the task of obtaining evidence to be carried out on the initiative of the judge.

It is the judge’s responsibility to carry out or order, including ex officio, all the actions necessary to determine the truth and the true nature of the dispute with regard to the facts which should be known.

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The judge may, at any stage in the proceedings, call for the parties to appear in person to give evidence regarding the facts which are of relevance to the decision in question.

The judge can also, on the basis of a reasoned official decision, require that information be given to the court when he believes that such information is essential to the normal advancement of the case or for understanding the true nature of the dispute. This can happen, for example, in relation to confidential data which may be at the disposal of the administrative services.

It is the responsibility of the court, on its own initiative or at the request of either of the parties, to request information, technical opinions, plans, photographs, drawings, objects or other documents necessary for clarifying the truth. Such requests can be made to official bodies, the parties disputing the case or third parties.

The court, whenever it considers it appropriate to do so can, on its own initiative or at the request of either of the parties, investigate things or people. This must be done in such a way as to safeguard the intimacy of private and family life and human dignity and should be aimed at clarifying any fact which is relevant to the decision in question. The court can carry out an on-the-spot visit or can order a re-construction of events to be undertaken, if it believes this is necessary.

When, in the course of a court case, there are reasons to presume that a certain person who has not been called as a witness has knowledge of facts which are important for making a correct decision in the case, the judge should order that that person be summoned to give evidence in court.

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The judge can, on his own initiative, order evidence to be given by experts.

Those facts that the court has knowledge of by virtue of carrying out its duties do not need to be included in the plea.

The judge must take all evidence presented into consideration whether or not it has come from the party that should have produced it.

4.

a) If the application of a party concerning the taking of evidence is approved, what steps follow?

Evidence is normally given by the parties during the investigation stage, that is, the stage immediately following that in which the facts that need to be proven are defined. As a general rule evidence is taken at the final hearing.

On an exceptional basis evidence can be given at an earlier stage. This can be the testimony of people, expert evidence or evidence obtained through judicial examination. For early presentation of such proof to be made there must be a well founded fear that it may be impossible or very difficult to collect testimony from certain people during the actual court case or to verify certain facts at a later stage.

Except in those cases where circumstances justify the judge changing the order of legal events, at the final hearing the taking of evidence starts with the parties making their statements.

Then, should the evidence include films or sound recordings, these are exhibited.

This may then be followed by verbal clarifications by experts who have been called to appear in court at the request of either of the parties or the court itself.

As a rule, witness testimony is produced at the final hearing.

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After the evidence has been taken, the facts of the matter are debated. In these debates the lawyers seek to establish the facts which should be considered as proven and those which, in their opinion, have not been demonstrated.

After the discussions have been concluded, the court withdraws to consider and to reach a decision. If the court believes that it is not sufficiently informed it can return to the court room to hear the people it wishes to and to order the necessary steps to be taken to clarify the matter in doubt.

b) In which cases can the court reject an application of a party to obtain evidence?

The application to obtain evidence can be rejected if it is presented outside the time limit laid down by law for this purpose.

Likewise, evidence prohibited by law cannot be accepted. Examples of such evidence include testimony from witnesses unable to testify adequately on account of the absence of sufficient physical or mental capacity to do so, statements made by a party involving dishonest or criminal facts of which the party in question is accused, or regarding non-personal facts or facts which the testifying party should have no knowledge of. Also included in this category is testimony from witnesses who have improperly listened to a telephone conversation, acted as private detectives or obtained information through torture or degrading treatment. Other evidence which is not acceptable is the presentation of the private diary of the opposing party and all means involving possible disrespect for human intimacy and dignity or the violation of State or professional secrecy or the secrecy to be observed by public servants.

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In relation to the lifting of such secrecy, a higher court than the one in which the matter has been raised can order the facts in question to be disclosed in the light of the need for higher interests to prevail.

An application to obtain evidence can be turned down if a mode of proof different to that required by law is used (for example, when the law requires the appending of a certain formal document to demonstrate a fact and it is requested that witness testimony be taken for the same purpose) , or if a limit foreseen in the procedural rules is exceeded (for example, when the number of witnesses for a certain type of process is exceeded those which are in excess of that limit must be rejected).

5.

a) What different means of proof are there?

The following means of proof exist:

a) The presentation of moveable or fixed objects;

b) Presumptions (with the meaning given above) ;

c) Documents;

d) The statements of the parties in the case as long as these have prompted judicial admissions;

e) Expert reports drawn up by persons possessing specific technical knowledge;

f) Judicial inspections, that is, the direct confrontation of the judge with the fact which is to be demonstrated;

g) The testimony of witnesses.

b) What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

It is not according to whether the proof is oral or written that there are specific differences in the demonstrative effectiveness of the means of proof.

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In accordance with the principle of free consideration of evidence, which is a general rule in civil proceedings, the judge arrives at his conviction in relation to the materiality of a certain fact or as a result of an internal intellectual process of rational examination of the evidence. The judge’s own experience and knowledge also play an important role. The mere observance of a certain aspect of formality is not important. Therefore, for example, the presentation of a written medium is not necessary for backing up something which is known to be a fact.

In the Portuguese civil process, the following are required: immediacy (personal contact between the judge and the various sources of proof) , concentration (compression and location in limited space and time and, if possible, continuity of the collection of evidence, the discussion of the case and the judgment) , orality (oral discussion) , and the identity of the judge (the judge must attend all the acts of taking of evidence and discussion during the final hearing). In the light of these required factors the distinction proposed in this question is irrelevant.

c) Are certain methods of proof stronger than others?

The law does indeed attribute different degrees of demonstrative force to the various means of proof.

The free consideration of proof is set aside and some means of proof take precedence over others whenever the law attributes a specific degree of importance to a particular means of proof or when it demands some special formality for the existence or proof of a legal fact. In cases of negative legal proof the law forbids the use of certain types of proof by the judge in reaching a decision.

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With regard to the taking of evidence through the collection of witness testimony, verbal hearing of experts (as a general rule, experts are only heard at the final hearing if it is necessary to provide verbal clarifications since the results of their investigations are given in written reports) , judicial inspections, investigation reports and documents not defined by law as having any special significance, the court freely assesses all such proof.

The demonstrative effectiveness of witness testimony is freely considered by the judge. However, witness testimony cannot be used to substitute a document required under the law or to go against or add to the content of certain documents.

The strength of the proof given in the replies of experts is assessed freely by the court and the same applies in relation to the results of judicial investigations.

With regard to authentic documents (that is, those set down in writing by a competent public authority or official in the exercise of their powers) , these are considered to fully prove the facts they refer to as having been carried out by such agents as well as the facts which are attested to in them on the basis of the understanding of the documenting entity (that is, such documents represent a demonstration of proof which can only be rebutted by proof to the contrary; it is not sufficient just to produce some doubt regarding these documents in the mind of the judge). Private documents, with signatures or handwriting that have been authenticated by a notary public, can be used as proof of declarations attributed to their writer but this does not prevent arguments or proof of falsity being lodged with regard to such documents. The facts contained in the declaration are considered as proven when they are contrary to the interests of the declaring party. The declaration must, however, be considered in its entirety.

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d) In order to prove certain facts, are certain methods of proof obligatory?

Yes, this is the case in Portuguese law.

When the law demands, as a form of business declaration, a document with a certain formality, such a document cannot be substituted by another means of proof or by another document except if this has greater force of proof.

When the law demands any special formality for the existence or proof of a legal fact this cannot be dispensed with.

The following are examples of such situations:

- A loan contract (a contract in which someone lends another person money or something which can be specified in terms of its nature, quality and quantity) for an amount greater than 20 000 euros is only valid if concluded by means of a public deed. A loan contract for an amount greater than 2 000 euros is only valid if the document is signed by the debtor (the party asking for the loan) ;

- Contracts for the sale of property assets or the bestowal of property assets are only valid if they are concluded by means of a public deed.

6.

a) Are witnesses obliged by law to testify?

All people, whether or not they are parties in the case, have the obligation to cooperate in the discovery of the truth. They must answer what they are asked, submit to the necessary investigations, supply what they are requested to and carry out acts that are decided on.

b) In which cases can they refuse to give evidence?

The following people may refuse to testify as witnesses, except in cases which have the purpose of verifying the birth or death of children:

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- Relatives in the ascending line in cases involving descendents, and adoptive parents in cases involving the adopted children, and vice-versa;

- A father-in-law or mother-in-law in cases involving their son-in-law or daughter-in-law, and vice-versa;

- Any spouse or ex-spouse in cases where one of the parties is the other spouse or ex-spouse;

- Whoever lives or has lived in a common law marriage in similar conditions to those of spouses with either of the parties in the case.

It is the responsibility of the judge to advise the people referred to above that they can refuse to testify.

Witnesses bound by professional secrecy, the secrecy incumbent on public employees and State secrecy can legitimately refuse to testify in relation to facts covered by such secrecy. Witnesses can also legitimately refuse to testify when complying with the duty to collaborate with the judicial authorities would mean violating the physical or moral integrity of people or encroaching on a person’s private or family life, his home, correspondence or telecommunications.

c) Can a person who refuses to testify be sanctioned or forced to give evidence?

Those who refuse to cooperate properly are fined. In particular cases coercive means can be used.

When a witness, without justification, does not appear at the trial, the judge can order that the witness appear under custody and must fine him.

d) Are there persons from whom evidence cannot be obtained?

There are indeed persons from whom evidence cannot be obtained.

These are people who are unable to testify due to psychiatric disorders and those who are not physically or mentally apt to testify on the facts to be proven.

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It is the responsibility of the judge to assess the competence of the people summoned to testify as witnesses.

People who may give testimony as parties in the case are forbidden to testify as witnesses.

7. What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via new technology such as television or videoconferencing?

Witnesses testify at the final hearing in person or by videoconferencing except in the following circumstances:

- When evidence is taken at an earlier stage (this can be done when there is a well founded fear that it may be impossible or very difficult to collect testimony from a certain person) ;

- Evidence is taken by letters rogatory sent to a Portuguese consulate which does not have technical means for evidence to be given through videoconferencing;

- Evidence is taken in a person’s residence or service headquarters (prerogative granted to the President of the Republic and foreign diplomatic agents under conditions of reciprocity) ;

- It is impossible for them to appear in court;

- The prerogative to testify first in writing is used or the judge authorises testimony to be given in this way in light of the impossibility or serious difficulty in appearing in court. The parties must agree to this.

The president of the court has full powers to ensure the case discussion is useful and brief and to ensure that the right decision is reached for the case. In particular, it is his responsibility to direct the proceedings, to maintain order and respect for institutions, the law and the court, to take measures to ensure than the case is heard in a dignified and calm manner, to point out to the lawyers and the Public Prosecutor the need to clarify points which are unclear or open to doubt and, if necessary, take steps for the facts to be demonstrated to be expanded on.

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The witness is questioned regarding the facts which have been presented or contested by the party which called the witness. The witness will testify in an accurate manner, indicating the reason and circumstances which justify his knowledge of the facts. As far as possible, the reason invoked for the knowledge will be set out in detail and will be well founded.

If the testimony is given to the bench, the questioning is done by the lawyer of the party which called the witness. The lawyer of the other party can, with regard to the facts covered in the testimony, put questions to the witness to complete or clarify the testimony.

The president of the court must prevent the lawyers from being impolite to the witnesses and from putting questions or considerations which are impertinent, suggestive, deceitful or offensive; both he and the assistant judges can put questions which they believe appropriate for determining the truth.

The questioning and cross-questioning are done by representatives of the parties. Members of the court can ask for clarification of any point.

The president of the court will carry out the questioning himself when this is necessary to ensure the witness’s composure or to put an end to inappropriate cross-questioning.

Before the witness answers the questions put to him he can consult the case, demand that he be shown certain documents which form part of the case, or present documents aimed at corroborating his testimony.

Witnesses resident outside the legal district, or the respective island in the case of the autonomous regions, are presented by the parties when the witnesses themselves have stated they will be available. Alternatively, they can be heard by videoconferencing in the courtroom from the district court of their area of residence or, if that court does not have the necessary means for videoconferencing, from the main court of the legal district of their area of residence.

III. THE EVALUATION OF THE EVIDENCE

8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Evidence obtained illegally cannot be considered by the court.

9. As a party to the case, will my own statement count as evidence?

Yes, it will count as evidence if it constitute a judicial admission, that is, if it is unfavourable to my interests and favours those of the opposing party.

Further information

« Taking of evidence and mode of proof - General information | Portugal - General information »

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Last update: 09-05-2005

 
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