The role of judges is to administer justice and ensure that legal decisions are enforced.
The Portuguese judiciary – a single body of judges in the Portuguese courts of law – comprises judges of the Supreme Court of Justice (with the official title of conselheiros), appeal court judges (known officially as desembargadores) and other judges at law.
Judges in the administrative and tax divisions also form a single body.
Access to the profession is open to Portuguese citizens with full political and civil rights who have held a law degree from a Portuguese university – or an academic qualification considered as equivalent under national law – for at least two years at the start of the competitive admission procedure, who have successfully attended training courses and attachments and who meet the other legal requirements for appointment as public officials.
The appointment of court judges is the responsibility of the Supreme Judicial Council (Conselho Superior da Magistratura), which is also responsible for the assignment, transfer and promotion of these judges and the exercise of discipline over them as stipulated by law.
The appointment, assignment, transfer and promotion of judges in the administrative and tax courts, as well as disciplinary proceedings, are the responsibility of the respective Supreme Council (Conselho Superior).
Judges for the second-level courts of justice are recruited from among judges of first instance by a system of competitive submission of curricula, selection being based on merit.
Access to the Supreme Court of Justice is by competitive submission of curricula and is open to judges, public prosecutors and other meritorious members of the legal profession.
Judges make judgements solely in accordance with the Constitution and the law and are not subject to orders or instructions, except for the duty of the lower courts to respect decisions made on appeal by the higher courts. The duty of obedience to the law includes the obligation to respect legal precedents, even where they are applied to situations not specifically contemplated.
Judges may not be transferred, suspended, retired or removed from office except in the cases laid down by law and may only incur civil, criminal or disciplinary liability as a result of matters occurring during the exercise of their office in the manner laid down by law. Civil liability may only arise on an action brought by the State against the judge for deliberate transgression of duty or serious misconduct and after primary liability has been accepted by the State itself.
Prosecutors in the Public Prosecutor’s Office are responsible for representing the State and defending such interests as the law may lay down and for participating in the implementation of the criminal policy defined by the bodies exercising sovereign power, conducting penal action in accordance with the principle of legality and defending the democratic rule of law.
The requirements detailed above for the exercise of the office of judge in the courts of law are also applicable to Public Prosecutors. Foreigners are barred from exercising this role.
The appointment of prosecutors in the Public Prosecutor’s Office is the responsibility of the Attorney General’s Office. This also applies to their assignment, transfer and promotion and to the exercise of discipline over them.
Prosecutors in the Public Prosecutor’s Office are a parallel body to their counterparts in the courts of law and are independent from them and autonomous.
They are accountable judicial officers and subject to a hierarchy; they may not be transferred, suspended, retired or removed from office except in cases provided for by law.
Lawyers are independent professionals holding a Law degree who represent their clients at law and provide legal advice on a professional and paid basis.
Only lawyers and probationary lawyers currently registered in their respective Association may practice professionally and, in particular, represent their clients at law or provide legal advice as paid independent professionals. The above does not apply to Legal Agents (Solicitadores) registered in their own professional association and who have their own particular status. The provision of legal advice by persons holding a law degree who are public officials or who operate in an employed capacity does not require registration in the Portuguese Bar Association where the advice is given to the individual's employer. Teaching staff in faculties of law who merely provide written legal opinions are not considered to be practising lawyers and are not, therefore, required to be registered in that Association.
A pre-requisite for registration is to have completed a probationary period, although this is waived in the case of teachers and former teachers from Faculties of Law and holders of a doctorate in Law.
Foreign citizens who obtained their degree in Portugal may be registered in the Portuguese Bar Association in the same way as Portuguese citizens if their country of nationality grants identical rights to Portuguese citizens.
Persons authorised for professional activity in their respective European Union Member State under one of the following professional titles are recognised as lawyers in Portugal and are therefore permitted to work in the profession: In Belgium: Avocat/Advocaat/Rechtsanwalt; In Denmark: Advokat; In Germany: Rechtsanwalt; In Greece: δικηγόρος; In Spain: Abogado/Advocat/Avogado/Abokatu; In France: Avocat; In Ireland: Barrister/Solicitor; In Italy: Avvocato; In Luxembourg: Avocat; In the Netherlands: Advocaat; In Austria: Rechtsanwalt; In Finland: Asianajaja/Advokat; In Sweden: Advokat; In the United Kingdom: Advocate/Barrister/Solicitor.
Any of these professionals may operate in Portugal using their original professional title expressed in the official language concerned and with an indication of the professional organisation to which they belong or of the jurisdiction within which they are entitled to practise under the law of their State of origin. However, legal representation or mandates in the Portuguese courts may only be undertaken by lawyers from the European Union operating with their original professional designation and under the guidance of a lawyer who is a member of the Association. Lawyers from the European Union may also operate in Portugal under the designation of Advogado subject to prior registration with the Portuguese Bar Association.
The occasional provision of professional services as a lawyer in Portugal by lawyers from the European Union practising under their original professional designation is permitted, but prior notice must be given to the Portuguese Bar Association.
Permanent establishment on Portuguese territory by lawyers from the European Union wishing to practice under the professional title of their place of origin requires prior registration with the Portuguese Bar Association. Registration requires production of a practising certificate from the Member State of origin and a further certificate proving that this right has not been suspended or withdrawn as a result of criminal or disciplinary proceedings. These documents may also be demanded from lawyers supplying advocacy services in the manner mentioned above.
Lawyers enjoy the immunity necessary to exercise their role.
Lawyers play a part in the administration of justice, with the exclusive competence – subject to the exceptions laid down in law – to represent the parties, with full technical discretion and bound solely by constraints of legality and the rules of professional ethics. As servants of justice and the law, they are required to prove themselves worthy of the honour and responsibilities inherent in that role. When exercising their profession, they are required to maintain absolute independence and objectivity at all times and must not use their role to pursue any goals other than professional ones, complying fully with the duties set out in law and those arising from custom, practice and tradition.
The profession of lawyer is incompatible with any activity or role which diminishes the independence and dignity of the profession. Here, the Articles of Association of the Portuguese Bar Association set out a wide range of activities considered as incompatible with the practice of the profession of lawyer.
Use of a lawyer is mandatory in civil cases where the amount involved is in excess of EUR 3 740.98, as well as in cases where an appeal is always admissible, irrespective of the amount of the claim, and in appeals and cases brought before the higher courts.
Legal Agents (Solicitadores) are independent professionals representing clients in legal matters in exchange for payment.
To practice as legal agents, they must be registered in the respective association, having completed a probationary period intended to make trainees familiar with the most common legal acts and terms and with the rights and duties of the profession.
In addition to successful completion of this preliminary training, the following qualifications are required for registration in the Association of Legal Agents (Câmara dos Solicitadores):
In the course of their duties, Legal Agents can apply to any court or public department to examine non-confidential or non-secret files, books or documents, and request the issuance of certificates, without the need to exhibit a power of attorney.
Where there is no lawyer (advogado) in a judicial district, a legal agent may represent a client. Even where it is obligatory to instruct a lawyer, a legal agent may make applications where no questions of law are involved. In cases where it is not necessary to use an advocate, the parties may be freely represented by a legal agent.
Enforcement Agents carry out their prescribed enforcement role as well as other legally-defined responsibilities. They also act as process-servers.
To act as an Enforcement Agent, a solicitador must:
Those operating as enforcement agents are subject to the rules governing legal agents.
In the enforcement process, the enforcement role is performed by a Solicitador de execução who must be nominated by the creditor in the application for execution, or by the secretary in cases where the creditor has not made a nomination or the nomination has been unsuccessful.
Unless stipulated otherwise by law, the enforcement agent is responsible, under the judge’s control, for carrying out all formalities for execution, including the service of documents, notices and publications.
The role of enforcement agent is carried out by a Solicitador de execução selected by the creditor or by the secretary from among registered agents in the district or in adjoining districts, or if there is none available, from those registered in another district within the same judicial area; if no enforcement agent is registered in the area or where there are some other reasons for which an enforcement agent cannot be found, this role – with the exception of tasks specifically reserved for enforcement agents – is undertaken by a legal official (oficial de justiça).
Notaries are legally defined as lawyers whose written documents, drawn up in their professional capacity, can be relied upon by the public. The same definition adds that they are both public officials who authenticate and store documents, and professionals who act independently and impartially and who may be freely selected by the persons concerned. The public nature of the notary’s role is inseparable from its private nature.
Registration with the Notaries Professional Association is a precondition for practising as a notary. This association is wholly independent from the State and represents its professional members.
Licences to establish a notary’s office are awarded by an Order of the Minister of Justice following an open competitive procedure. A notary may only hold one licence. Professionals granted a licence undertake to practice in the municipal area concerned for at least two years, during which time they may not apply for any other licence.
Notarised documents may be relied upon as authentic.
The use of a notary is often mandatory. This always applies, for example, where the law demands that an act be undertaken by public deed.
Registrars are public officials responsible for the registration of certain legal situations as a means of publication.
Conditions for admission to this profession are a Law degree from a Portuguese University or equivalent academic qualification, as well as compliance with the general requirements for acceptance as a public servant. Candidates must be of Portuguese nationality, except where there is a dispensation under a special law or international agreement.
The Conservador is essentially responsible for maintaining the registers.
The role involves checking compliance with applicable law and, as regards the documents for registration, ensuring that the rights reflected in them are correctly defined and comply with the legally-stipulated order of registration.
Portuguese law identifies a number of events requiring registration by registrars.
These include – but are not limited to – birth, paternity, adoption, marriage, death and the establishment of companies, as well as matters affecting the legal situation of real property, motor vehicles, ships and aircraft.
It is mandatory to use a Registrar where a particular fact is subject to compulsory registration.
Justices of the Peace are professionals whose role is to make judgements, on a legal or equitable basis, on matters referred to them, after first attempting to achieve an amicable settlement.
Candidates to become a Justice of the Peace must meet the following requirements:
Justices of the Peace are appointed by their respective Council (Conselho de Acompanhamento da Criação e Instalação dos Julgados de Paz) for periods of one year, renewable for up to three years.
The Justice of the Peace is not required to apply strict legal criteria and may, with the agreement of the parties, take decisions on an equitable basis where the value of the action does not exceed EUR 1 870.49.
A legal official is a public official working in the court secretariat or Public Prosecutor’s office.
The role varies depending on the official’s category, and there is an extensive and detailed list of responsibilities. In general, these tasks contribute to the legal acts needed for the normal processing of cases in accordance with legislation in force, and relate in particular to receiving and handling applications, submitting files for a decision to judges, carrying out the judge’s decisions, drawing up reports of investigations, judgements, the service of documents and notices, and the collection of court fees.
Admission to the professional categories of auxiliary clerk (escrivão auxiliar) and legal clerk (técnico de justiça) is open to Portuguese nationals who have completed a professional training course approved by the Ministries of Justice and Education.
Further information may be obtained from the following websites:
http://www.stj.pt - Supreme Court of Justice;
http://www.conselhosuperiordamagistratura.pt/ – Supreme Judicial Council
http://www.mj.gov.pt/ – Ministry of Justice;
http://www.tre.pt – Évora Court of Appeal;
http://www.cej.pt/ –Centre for Legal Studies (the body responsible for the training of Portuguese judges);
http://www.dgsj.pt – Directorate-General for the Administration of Justice (which provides, inter alia, information on contacts with the courts and their territorial jurisdiction, and access to the Justice Officials Page);
http://www.gplp.mj.pt/ – Legislative Policy and Planning Office of the Ministry of Justice;
http://www.dr.incm.pt/dr/ - On-line database of legislation (containing laws and instruments published in the 1st Series of the Portuguese Official Gazette after 1 January 1970; free access is also provided to legislation published in the 1st Series since 1 January 2000);Top
Last update: 14-08-2006