COVID-19: Return to a situation of (new) normality in the Portuguese Courts

Now, within the framework of the declaration of the state of alarm, and notwithstanding the ongoing application of extraordinary measures guaranteeing a correct response to the epidemic, the intention is also to gradually reduce certain suspensions and prohibitions declared during the state of emergency, with a view to commencing a process in stages for returning to some sort of economic normality also in the area of Justice and the Courts.

In this sense, Law no. 16/2020, which will come into force on June 3, 2020, has now fully revoked the regime for suspending time limits in court proceedings that had been set previously and has established a new exceptional transitional procedural regime.

This Alert contains the most relevant points of this new procedural regime, in accordance with the amendment now approved.

I. Scope of application

Procedures to be carried out within the scope of proceedings and processes taking place with the courts of justice, administrative and tax courts, Constitutional Court, Court of Auditors and other court bodies, arbitral tribunals, public prosecution office, courts of justices of the peace, alternative dispute resolution bodies and tax collection bodies.

II. How the procedures are to be carried out

1. Trail hearings, along with any other procedures involving the examination of witnesses, are to be carried out:

a) In person, observing the maximum number of people and other safety, health and hygiene rules, as defined by the Directorate-General of Health (Direção-Geral da Saúde) (DGS); or

b) Through appropriate remote means of communication, such as telephone conference calls, videoconferencing or any other equivalent means, when they cannot be carried out in accordance with the previous paragraph, and when possible and appropriate, i.e. when this does not jeopardise the purposes of justice, although any statements to be made by the accused, witnesses statements or ex parte depositions must always be made at court, unless the parties agree otherwise or on conformation of any of the situations described in point III.

2. In any other procedures requiring the physical presence of the parties, their representatives or any others participating in the proceedings, any other procedural acts will be carried out:

a) Through appropriate remote means of communication, such as telephone conference calls, videoconferencing or any other equivalent means; or

b) In person, observing the maximum number of people and other safety, health and hygiene rules defined by the DGS.

III. The right not to attend

In any of the procedures established under points nº 1 and 2, those parties, their representatives or any others participating in the proceedings who can prove they are over the age of 70, immunodepressed or suffer from a chronic disease and who, in accordance with the health authority guidelines, are to be considered at risk, are not obliged to attend court. Should they exercise this right not to attend, the respective examinations or follow-ups of the proceedings must be carried out through appropriate remote means of communication, such as telephone conference calls, videoconferencing or any other equivalent means, from their legal or professional domicile.

IV. Right of the accused to attend

Notwithstanding the provisions of the previous points, the accused has their presence guaranteed at any evidentiary deliberations and at the court hearings involving statements from the accused or co-accused or witness statements.

V. Time limits, acts and proceedings that are suspended

1. The time limit for the declaration of insolvency of a debtor, which is 30 days following the date on which they become aware of the situation of insolvency [a debtor is considered to be in a situation of insolvency when it is impossible for them to meet their outstanding obligations], or the date on which they should have become aware;

2. Any acts to be carried out in enforcement or insolvency proceedings related to the implementation of procedures for the judicial surrender of the family home;

3. Eviction orders, special eviction procedures and procedures for surrendering rented properties, when the tenant, under a final court decision to be handed down, may be placed in a vulnerable position due to a lack of own housing or for any other compelling social reason;

4. The periods for any time limits and expiries relating to the proceedings and processes described in the points above;

5. The periods for any time limits and expiries relating to proceedings the procedures of which cannot be carried out in the terms described in point II. 1. b) and 2. b) and point VI.

6. The provisions of points d) and e) have preference over any regimes that might establish mandatory time limits and expiry periods, with these being extended by the period of time corresponding to the length of the suspension.

7. Those time limits and expiry periods that are no longer suspended due to the amendment introduced by this new Law are extended by the period of time corresponding to the length of the suspension.

VI. Cases of suspension at the request of the party subject to enforcement or insolvency

In those cases in which the acts to be performed within enforcement or insolvency proceedings referring to sales and judicial surrenders of properties are subject to endangering the livelihood of the party subject to enforcement or declared insolvent, such party may request their suspension, as long as this suspension does not cause serious harm to the livelihood of the enforcing party or irreparable damage, with the court having to hand down a decision on this request within a period of 10 days, after having heard the parties.

VII. Safeguards

The courts and other entities mentioned above in point I must have the sanitizing disinfectants and safeguards established by the recommendations of the DGS.

Prison establishments, following the guidelines of the DGS and the Directorate-General of Reinsertion and Prison Services (Direção-Geral de Reinserção e Serviços Prisionais) on matters of safety, health and hygiene rules, must ensure the necessary conditions so that the respective defense lawyers may talk in person with the accused for the preparation of their defense.

VIII. Entry into force

This exceptional transitional regime enters into force on June 3, 2020.