Portugal

   

Quality of Democracy

#14
Key Findings
With its overall legalistic society, Portugal falls into the upper-middle ranks (rank 14) with regard to its quality of democracy. Its score in this area is unchanged relative to its 2014 level.

Electoral policies are generally fair. New laws have increased the workload of the campaign-finance monitoring body, making it increasingly difficult for it to fulfill its duties. Racist and fascist parties are banned. Referenda are rare, but participatory budgeting processes are used at both the local and national levels.

Financial pressures have increased volatility in media ownership. A broad range of government information is available to citizens, but is often unorganized and difficult to understand. Civil and political rights are generally well protected, though the judicial system continues to be very slow.

Gender and racial discrimination remains moderate concerns, with the gap between average pay for women and men having increased steadily in recent years. Corruption is a persistent problem, with recent efforts to address the issue deemed ineffective and superficial. Courts are independent and strong.

Electoral Processes

#24

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
Individuals and political parties enjoy largely equal opportunities, both de jure and de facto, to register for and run in elections. Parties espousing racist, fascist or regionalist values are all constitutionally prohibited, as are parties whose names are directly related to specific religions.

While individual citizens can run in municipal elections, they are barred from contesting legislative elections, where only registered political parties can present candidates. The requirements for registering a party are relatively onerous. To be formed, parties must acquire the legally verified signatures of 7,500 voters. Moreover, they must ensure that their internal party rules and statutes obey the political-party law, which requires that parties’ internal functioning must conform to “the principles of democratic organization and management” (Article 5 of the Political Party Law – Lei dos Partidos Políticos), and defines several internal bodies that parties must have (Articles 24-27).

However, these requirements do not prevent parties and lists from forming and contesting elections. During the period under review, two new political parties were formally registered: Liberal Initiative, in December 2017; and Alliance, in October 2018. This raises the total to 23 registered political parties, of which 12 were registered in the last decade. With regional, legislative and European elections in 2019, it is likely that this number will further increase over the next year.

Citations:
On the laws see, for example, Eleição da Assembleia da República 1 / Outubro/1995: Legislação eleitoral actualizada e anotada (Lisbon: STAPE/MAI, 1995); and Lei dos Partidos Políticos (Political Party Law) – Lei Orgânica n.º 2/2003, de 22 de Agosto, com as alterações introduzidas pela Lei Orgânica n.º 2/2008, de 14 de Maio.

For the registration of parties, see: Tribunal Constitucional, “Partidos registados e suas denominações, siglas e símbolos,” available online at: http://www.tribunalconstitucional.pt/tc/partidos.html

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
9
Parties have access to broadcast time on television and radio for political purposes during the official campaign period of two weeks preceding an election. This time is divided equally among the parties, according to the number of candidates they present. Parties need to present lists in at least 25% of electoral districts, and field a total number of candidates equal to at least one-quarter of the total number of possible candidates, to qualify for these broadcasts. These short broadcasts (lasting a maximum of three minutes for each party) air during prime-time, and had a non-negligible audience during the recent elections.

If one considers media access more broadly, access to news programs and political debates is overwhelmingly concentrated on the five political forces: the PSD, PS, CDS, PCP (allied with the PEV in legislative elections) and BE. These five forces have almost entirely monopolized parliamentary representation since 1999. Thus, television news coverage, which is popular in terms of TV ratings and is the predominant source of information for the Portuguese, is heavily concentrated on the five main parties.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
9
All adult citizens are guaranteed the right to participate in national elections. The government also provides transportation to those requiring it. Citizens in hospitals and in jails are also able to vote, with assistance provided as necessary, and provision is made for Portuguese citizens living abroad to cast their ballots.

Foreign citizens residing in Portugal are entitled to register to vote in local elections if they are from EU member states, or from Brazil, Cape Verde, Argentina, Chile, Colombia, Iceland, Norway, New Zealand, Peru, Uruguay and Venezuela. Brazilian citizens can also request a statute of equal rights and duties, which grants them the right to vote in legislative elections.

As per previous reports, the substantial inflation of the electoral register remains problematic, generating a problem of technical abstention. Estimates in the run-up to the October 2017 local elections indicated a gap of about 850,000 people between the registered and actual number of voters – an increase of 9% vis-à-vis the 2015 legislative elections.

As noted in previous reports, this difference reflects current emigration patterns and the failure of Portuguese emigrants registered to vote in Portugal to transfer their electoral registration to their overseas residence. As Portuguese voters could vote only in the administrative parish (or, if abroad, in the country) in which they were formally registered, this meant that a substantial proportion of Portuguese emigrants were unable to exercise their voting rights. For instance, in the 2015 legislative elections, a total of just 9,457 Portuguese voters living in Switzerland were registered to vote there, a minute fraction of the estimated 262,748 Portuguese citizens resident in Switzerland in 2014.

This issue was partially addressed with the approval in parliament of Law 3/2018 in the summer of 2018. Hitherto, voting registration was automatic for all citizens residing in Portugal, but not for Portuguese citizens residing abroad. Following this law, Portuguese citizens residing abroad will also be automatically registered to vote. However, this measure may be insufficient to resolve the issue, as technical abstentions are largely the result of Portuguese emigrants registered to vote in Portugal failing to update their address (and electoral registration) to their overseas residence following emigration.

However, it must be noted that this discrepancy is not due to legal barriers to registration. Both within and outside Portugal, electoral registration is a simple and non-exclusionary process.

Citations:
Lei Orgânica nº 3/2018 [Law no. 3/2018], available online at: https://dre.pt/application/conteudo/116090196

Pedro Crisóstomo & Maria Lopes (2015), “Emigrantes registados nos cadernos eleitorais distorcem números da abstenção,” Público online (11/10/2015), available online at: http://www.publico.pt/politica/noticia/emigrantes-registados-nos-cadernos-eleitorais-distorcem-numeros-da-abstencao-1710762?page=-1

Rui Dias (2017), “Em Guimarães há 15 mil eleitores fantasma,” Mais Guimarães – 22/8/2017, available online at: http://maisguimaraes.pt/em-guimaraes-ha-15-eleitores-fantasma/

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
6
Political-party funding oversight lies with the Constitutional Court (Tribunal Constitucional), which has a specific independent body tasked with monitoring party financing and accounts – the Entidade das Contas e Financiamentos Políticos (ECFP). There are two main sources of funds for political parties. First, the state provides funding to all parties that received vote shares above a certain threshold in previous elections (over 100,000 votes in the case of legislative elections); second, parties receive private contributions, which must be registered with the electoral commissions of each of the parties at the local, regional and national levels.

Parties’ annual accounts and separate electoral-campaign accounts are published on the ECFP website and are scrutinized by this entity, albeit with considerable delay. For instance, the reports and decisions regarding the 2015 campaigns were published in July 2018, more than two and half years after the elections.

As noted in previous reports, ECFP reviews do identify irregularities and/or illegalities. However, sanctions for infractions are relatively small and infrequent. A 2012 study examining oversight of party accounts – based on interviews with both the ECFP and party representatives – noted that the ECFP lacked resources, which limited its capacity to monitor party and election funding fully.

This situation appears to have worsened during the period under review due in part to changes to the party financing law, which came into effect in 2018. In particular, these measures increased the number of competencies of the ECFP, without increasing its resources (particularly staff numbers). In July 2018, it was reported that the fines applied to political parties for financing irregularities in 2009 were no longer applicable as they had expired, as defined under the statute of limitations.

In September 2018, the ECFP took the unprecedented step of publicly stating that it was in a state of “near break down” and that it would almost certainly be unable to assess all party accounts. Overall, there appears to have been a substantial reduction in the capacity to oversee party financing during the review period, a pattern confirmed by the ECFP and also noted in the former head of the ECFP’s assessment of the new legislation.

Citations:
ECFP (2018), Deliberação, available online at: http://www.tribunalconstitucional.pt/tc/file/deliberacao_texto_integral.pdf?src=1&mid=4601&bid=3582

Financiamento dos Partidos Políticos e das Campanhas Eleitorais – legislation, available online at: http://www.parlamento.pt/legislacao/documents/legislacao_anotada/financiamentopartidospoliticoscampanhaseleitorais_anotado.pdf

Público (2017), “A Entidade passa a ter muito mais competências, mas muito menos poderes,” available online at: https://www.publico.pt/2017/12/29/politica/entrevista/a-entidade-passa-a-ter-muito-mais-competencias-mas-muito-menos-poderes-1797503

https://www.dn.pt/portugal/…/financiamento-dos-partidos-regressa-ao-plenario-do-par…

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
3
The institution of referenda exists at national and local levels. However, while citizens can propose referenda, the referendum itself takes place only if there is agreement from political officeholders. In the case of national-level referenda, the Assembly of the Republic or the government must propose the referendum to the president, and the president must accept this proposal. Citizens can propose local referenda, but the local Municipal Assembly can decide whether to call these referenda or not.

In practice, referenda are rare in Portugal. There have been only three national referenda in Portugal since the transition to democracy, with the most recent having been held in 2007. Local referenda are also rare, with five having officially taken place, the most recent of which was in 2012.

Participatory budgets are widely used in Portugal, both at local and national levels. The country is now a world leader in terms of the implementation participatory governance mechanisms and the Costa government was the first worldwide to introduce national-level participatory budgets in 2016/17.

Citations:
Público (2018), “Orçamentos participativos espalham-se pelo mundo, com Portugal na dianteira,” available online at: https://www.publico.pt/2018/10/22/politica/noticia/orcamentos-participativos-espalhamse-mundo-portugal-dianteira-1848283

https://www.peticaopublica.com/info/legislation.aspx

Access to Information

#15

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
Public and private media are independent of the government’s influence, as mandated by the constitution of 1976. The media are regulated by the Entidade Reguladora da Comunicação Social (ERC). Four of the five members of the ERC board are appointed by a qualified majority of two-thirds of parliament, and the fifth member – who normally becomes the ERC’s head – is selected by the other four members.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
7
Portugal’s media market is competitive and relatively diversified. There are four free broadcast-television networks – one public (RTP, with four channels) and two private (SIC and TVI), each of the latter owned by a different media conglomerate (Impresa and Media Capital). In the aftermath of the transition to digital television, the Portuguese Assembly’s own channel, ARTV (previously only available on cable), was also added to the roster of free channels.

The national cable television news channels, once restricted to offerings from the RTP and SIC groups, has been diversifying substantially since 2009.

The newspaper market has shown diversification, with several leading groups emerging. The Global Media Group holds several relevant titles, notably Jornal de Notícias (a leading daily in northern Portugal) and Diário de Notícias (another leading daily newspaper). The Impresa group held several print outlets, its flagship being the influential Expresso weekly. In January 2018, the Impresa group sold all its titles, except Expresso, to a new group, called Trust in News. This sale included the Visão weekly news magazine.

Meanwhile, the Sonae group is behind another influential title, the daily Público. Cofina Media owns the Correio da Manhã tabloid and the daily Jornal de Negócios financial newspaper, while Newsplex owns The Sol weekly and “i” daily. There is also an online daily newspaper, called Observador, which has a classical liberal orientation (as set out in its editorial statutes).

This diversity results in a degree of pluralism. At the same time, most media outlets – notably newspapers – face considerable financial challenges.

These financial challenges contribute to the considerable volatility in media-ownership patterns, as evidenced by the sale of the Impresa titles.

The attempt by telecom and cable supplier Altice to take over the Media Capital group – which includes the TVI television channels, several radio stations and internet news services – this fell through in June 2018, with Altice dropping the offer after it was not approved the Competition Authority.

Citations:
Observador, “Estatuto Editorial,” available online at: http://observador.pt/estatuto-editorial/

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
7
Free and readily available access to official information is guaranteed by Article 48, subsection 2 of the 1976 constitution, and mechanisms exist to ensure that this does in fact happen. There are extensive legal provisions providing guarantees for access to official information. Additional support is supplied by the Aarhus Convention of the European Union, which was signed on 25 July 1998 and ratified by Portugal on 7 September 2003. The government has recently put virtually all official information and requirements such as permits and licenses online. This information can be readily accessed through home computers and without cost in a wide variety of public places such as municipal libraries. The Commission on Access to Administrative Documents (Comissão de Acesso aos Documentos Administrativos, CADA), established in 1995, deals with complaints regarding public access to information.

The access to government documents is guaranteed in the following law:
Law number 26/2016 – Diário da República No. 160/2016, Série I de 2016
At the local level, the population generally has access to government information, documents and more through freely available computers at the local library or at government offices.

However, it should also be noted that, while information is available, it is often not well organized. Moreover, it is often not clear even to educated citizens, let alone to citizens with lower educational attainments. This renders citizens’ de facto ability to obtain information less expansive than their de jure ability.

Citations:
Lei n.º 26/2016 – Diário da República n. º 160/2016, Série I de 2016

Civil Rights and Political Liberties

#12

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
8
The Portuguese constitution of 1976 defines broad categories of rights and guarantees for the population in articles 12-23 and 24-27. This is generally also the case in practice. However, poorer elements of society, as in any country, tend to lack the educational, legal and other means to take full advantage of these guarantees. Moreover, the justice system continues to be very slow, which also reduces its ability to effectively protect citizens.

In the period under review, the government of Portugal passed a law – the National Strategy for Equality – to increase the social and political rights of its citizens.

Citations:
https://dre.pt/home/-/dre/115360036/details/maximized

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
Under the regime that ruled Portugal until 1974, there were virtually no political liberties. The basic goal of the political transition was to achieve and guarantee political liberties. Portugal has been successful in this regard, and widely agreed-upon political liberties are now in place and respected. The basic legislation in the constitution, and subsequent regular legislation, guarantees these political liberties. They function generally well.

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
7
State policies seek to redress discrimination, and cases of overt discrimination are rare. Moreover, Portugal has been a signatory to the International Covenant on Civil and Political Rights since October 1976.

Nevertheless, two areas of concern remain:

First, the gap between average pay for women and men has increased steadily in recent years. The unadjusted gender wage gap increased from 8.4% in 2006 to 17.8% in 2015 and 17.5% in 2016, a level that is above the EU average.

Second, racial discrimination remains a concern. The Commission for Equality and Against Racial Discrimination (CICDR) received and analyzed 179 complaints regarding racial discrimination in 2017, an increase of some 50% compared to 2016 (119). This was the highest number since at least 2000, surpassing the previous high in 2016.

Moreover, the period was marked by cases of apparent discrimination, which gained considerable media traction. In July 2018, a Colombian woman was beaten up by the security guard of a bus company allegedly due to racial motivations, with the immediate police response seemingly inadequate.

Furthermore, a trial has started of a case in which the public prosecutor has accused 17 police officers of a racially motivated attack on a group of young black Portuguese men in 2015, which the police officers are also accused of covering up. The trial is ongoing.

Citations:
Comissão para a Igualdade e Contra a Discriminação Racial, “Relatório Anual 2017,” available online at: https://www.cicdr.pt/documents/57891/574449/CICDR_Relatório+Anual+2017_Igualdade+e+Não+Discriminação.pdf/3f40f660-642d-45b0-9e7f-574b077d257d

Eurostat, Gender pay gap in unadjusted form, available online at: https://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tesem180&plugin=1

Público (2018), “Cova da Moura: cronologia dos acontecimentos,” available online at: https://www.publico.pt/2018/05/20/sociedade/noticia/cova-da-moura-cronologia-dos-acontecimentos-1830601

Público (2018), “Jovem agredida por fiscal: ‘Pôs-me os joelhos em cima, como se fosse um troféu’,” available online at: https://www.publico.pt/2018/06/27/sociedade/noticia/jovem-agredida-por-fiscal-posme-os-joelhos-em-cima-como-se-fosse-um-trofeu-1836108

Rule of Law

#13

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
7
Portugal is an extremely legalistic society. Legislation is abundant, prolix and complex. Moreover, combined with an ever-present pressure for reform arising from Portugal’s structural problems and a political tradition for new governments to dismiss the measures of previous governments, legislation is also subject to frequent changes.

The combination of overabundant and changing legislation with comparatively weak mechanisms for policy implementation further accentuates legal uncertainty.

The passing of the law on legal certainty during the period under review will ultimately improve the predictability of executive actions.

Citations:
https://dre.pt/home/-/dre/115475700/details/maximized

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
8
The judicial system is independent and works actively to ensure that the government conforms to the law.

The highest body in the Portuguese judicial system is the Supreme Court, which is made up of four civil chambers, two criminal chambers and one labor chamber. There is also a disputed-claims chamber, which tries appeals filed against the decisions issued by the Higher Judicial Council. The Supreme Court judges appeals on the basis of matters of law rather than on the facts of a case, and has a staff of 60 justices (conselheiros). There are also district courts, appeal courts and specialized courts, as well as a nine-member Constitutional Court that reviews the constitutionality of legislation. In addition, there is a Court of Auditors (Tribunal de Contas), which is also a constitutionally prescribed body and is defined as a court under the Portuguese legal system. This entity audits public funds, public revenues and expenditures and public assets, all with the aim of ensuring that “the administration of those resources complies with the legal order.”

The number of judges in 2017 stood at 1,771. This number has risen from the early 1990s (from around 1,000) to 2008 (1,712). Since 2008, the number of judges has remained relatively stable, reaching a peak in 2013 (1,816). Nevertheless, there remains a shortage of judges in relationship to the number of outstanding cases, which creates delays within the system.

In October 2018, Portugal appointed its second female attorney general, Lucília Gago, who replaced Joana Marques Vidal. The latter oversaw a very dynamic period for the Public Prosecution Service of Portugal, with a number of high profile cases (detailed in question D4.4 below). There was pressure from the PSD and CDS for her to be appointed to a second six-year term, which the constitution allows though previous practice has avoided. However, the prime minister (who proposes a name for the office) and the president (who appoints the prime minister’s nominee) chose not renew her term, arguing that non-renewable single terms reinforce the office’s independence from political power. For critics, however, the decision not to reappoint Joana Marques Vidal was due to political expediency.

Citations:
Pordata, “Magistrados judiciais: total e por sexo,” available online at: https://www.pordata.pt/Portugal/Magistrados+judiciais+total+e+por+sexo-1703

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
9
The Constitutional Court is comprised of 13 judges, who serve for non-renewable nine-year terms. Of these, 10 are selected by parliament on the basis of a two-thirds parliamentary majority. This generally means that the selection of judges requires, at least, an agreement between the PS and PSD, as the two largest parties together make up more than two-thirds of parliament. Typically, there is no other parliamentary configuration that can secure a two-thirds majority. That said, the PS and PSD have voted for the appointment of other parties’ nominees (e.g., Maria Clara Pereira de Sousa de Santiago Sottomayor, nominated by the BE in 2016; and Fátima Mata-Mouros, nominated by the CDS in 2012), depending on political equilibria. The remaining three Constitutional Court judges are co-opted by the 10 judges elected by parliament. Six of the 13 judges must be chosen from judges in other courts; the others can be jurists.

While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.

It is, however, important to note that there is a new Judges’ Statute, passed in July 2018, which has caused a great deal of tension between some judges and the government.

Citations:
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).

https://tvi24.iol.pt/…/estatutos/parlamento-aprova-proposta-que-altera-estatuto-dos-ma…

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
7
Under Portuguese law, abuse of position is criminalized. However, as elsewhere, corruption persists despite the legal framework. A 2012 assessment of the Portuguese Integrity System by the Portuguese branch of Transparency International concluded that the “political, cultural, social and economic climate in Portugal does not provide a solid ethical basis for the efficient fight against corruption,” and identified the political system and the enforcement system as the weakest links of the country’s integrity system.

While efforts have been made at the state level to tackle corruption – and it is an oft-discussed topic – there remains considerable room for improvement in terms of the implementation of anti-corruption plans.

Legislation was approved by the Assembly of the Republic in 2011 and 2015 regarding the illicit enrichment of public officeholders. However, in both instances, the legislation was deemed unconstitutional by the Constitutional Court. While the issue continued to be publicly discussed throughout the period under review, no new proposal has been made.

A survey by the national Council for the Prevention of Corruption, published in June 2015, noted that half of the country’s public entities admitted to having applied only portions of their corruption-prevention plans. The reasons given were largely related to a lack of human, technical and financial resources. A 2018 study by the council into the prevention of corruption in public management concluded that the existing weaknesses were “very similar to those previously identified.”

Equally, the Council of Europe’s Group of States against Corruption (GRECO) compliance report published in March 2018 found that Portugal had satisfactorily implemented only one of the fifteen recommendations published in 2016, with a further three partly implemented, while the remaining 11 had not been implemented. It concluded that “the current very low level of compliance with the recommendations is ‘globally unsatisfactory’.”

This is also consistent with the analysis of the outgoing attorney general, Joana Marques Vidal. In an interview in October 2018, she stated that the political response to corruption had not been effective and was very superficial, and noted the need for additional legal instruments to tackle corruption in Portugal.

Under the helm of Joana Marques Vidal, the Public Prosecution Service (PPS) was considerably more active in dealing with high profile corruption scandals. Former Prime Minister José Sócrates (2005 – 2011) remains under investigation for alleged corruption, money laundering and tax fraud, and was formally charged with 31 crimes in October 2017.

In the previous report we noted the beginning of a trial on the so-called Golden Visa case, which involves a number of high-ranking civil servants and a former minister of internal affairs, Miguel Macedo (2011 – 2014). The case was set to be sentenced in September 2018. However, the judge decided to postpone sentencing for a further six months.

During the period under review, other high-profile cases have included: the so-called Fizz case, involving a Portuguese judge and a former vice-president of Angola; the Lex case, involving another Portuguese judge; the e-toupeira case, involving the Benfica football club’s alleged access to privileged judicial information; the BES case, involving a major banker and government officials; and a case involving the main energy company, EDP.

The greater dynamism of the PPS under Joana Marques Vidal is widely interpreted as indicating the important role of leadership in prosecuting corruption in Portugal. It will be relevant to assess how the PPS proceeds under the direction of the new attorney general, who took office in October 2018.

Citations:
Conselho de Prevenção da Corrupção (2018). “Prevenção da corrupção na gestão pública: mapeamento de áreas e fatores de risco,” available online at: http://www.cpc.tcontas.pt/documentos/outros/relatorio_mapeamento_riscos_2018.pdf

GRECO (2018), “Fourth Evaluation Round Compliance Report – Portugal,” available online at: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680790833

Público (2018), “O futuro destes homens vai marcar o mandato de Lucília Gago,” available online at: https://www.publico.pt/2018/09/25/sociedade/noticia/os-casos-mais-mediaticos-que-a-nova-pgr-tem-1844798

https://www.jornaldenegocios.pt/…/portugal_melhora_no_ranking_de_corrupcao_e_e.
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