Portugal

   

Quality of Democracy

#13
Key Findings
With its overall legalistic society, Portugal falls into the upper-middle ranks (rank 13) with regard to its quality of democracy. Its score in this area has improved by 0.1 point relative to its 2014 level.

Electoral policies are generally fair. New funding has been provided to the campaign-finance monitoring body, relieving what had been serious financial constraints on its work. 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 it is often unorganized and difficult to understand. Civil and political rights are generally well protected. An ongoing National Strategy for Equality aims to promote gender equality, prevent domestic violence and combat discrimination.

Gender and racial discrimination remains moderate concerns, with the gap between average pay for women and men having increased steadily in recent years. Cases of police violence against racial minorities have come to light. Corruption is a persistent problem, with a number of high-profile cases having recently come to trial. Courts are independent and strong.

Electoral Processes

#18

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 are aligned with the political-party law (Lei dos Partidos Políticos), which requires that parties’ internal operations must conform to “the principles of democratic organization and management” (Article 5) and feature several internal bodies (Articles 24 – 27).

However, these requirements do not prevent parties from forming and contesting elections. During the period under review, two new political parties were formally registered: Chega (Enough) in April 2019 and Reagir Incluir Reciclar (React Include Recycle) in May 2019. This raises the total to 25 registered political parties, of which 13 were registered in the last 10 years. The 2019 legislative elections were contested by 21 different lists, the highest total yet since democratization.

A new law was passed during the current review period, which, following the 2019 legislative elections, will encourage parity for women in political positions and in the administration. This law is likely to improve procedures for registering candidates.

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

https://www.parlamento.pt/Legislacao/Documents/…/LeiParidade_Simples.pdf

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 have a non-negligible audience.

If one considers media access more broadly, access to news programs and political debates is overwhelmingly concentrated on the five main political forces: PSD, PS, CDS, PCP and BE. These five forces have almost entirely monopolized parliamentary representation since 1999. 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 them.

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 SGI reports, the substantial inflation of the electoral register remains problematic, generating a problem of technical abstention. Estimates in the aftermath of the October 2019 legislative elections indicated that there were about 796,000 more people on voter registration lists than there are in the voting age population. This is a little higher than the estimates at the time of the previous 2015 legislative election (of around 780,000), but is an improvement on the estimates made at the time of the 2017 local elections (850,000).

As noted in previous reports, this difference reflects the failure of Portuguese emigrants registered to vote in Portugal to transfer their electoral registration to their overseas residence. As Portuguese voters can only vote in the administrative parish (or, if abroad, in the country) in which they are formally registered, this means that a substantial proportion of Portuguese emigrants are unable to exercise their voting rights.

This issue was partially addressed with the approval in parliament of Law 3/2018. With this law, Portuguese citizens officially residing abroad are automatically registered to vote.

This had a positive effect on the 2019 elections. Thus, the number of registered Portuguese voters in Switzerland increased from just 9,457 in the 2015 legislative elections to 146,795 in the 2019 legislative elections.

However, as also noted in previous reports, this does not fully 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/

Público (2019), “Portugal tem 796 mil ‘eleitores-fantasma’,” available online at: https://www.publico.pt/2019/10/18/politica/noticia/portugal-796-mil-eleitoresfantasma-1890500

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
8
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 party accounts in 2016 were published in September 2019, with a delay of more than two and a half years.

As noted in previous SGI 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.

In the previous report, we noted that this situation appeared to have worsened during 2018 due in part to changes to the party financing law, which came into effect in that year. These measures increased the ECFP’s responsibilities, without increasing its resources (particularly staff numbers). In July 2018, it was reported that the fines applicable to political parties for financing irregularities in 2009 had expired, 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.

This situation has been reversed during the period under review. The budget for the ECFP more than quadrupled, from €351,649 in 2018 to €1,520,639 in 2019, and the ECFP was able to hire additional staff and improve its resources.

Citations:
Entidade das Contas e Financiamentos Políticos (2019), “2.º ano de mandato – Balanço e Desafios,” available online at: https://www.tribunalconstitucional.pt/tc/file/ECFP%20-%20Relat%F3rio%202o%20ano%20de%20atividade.pdf?src=1&mid=5417&bid=4119

Entidade das Contas e Financiamentos Políticos (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

Relatório de ECFP 2019 09.27.2019

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 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.

Petitions can be submitted to the Assembly of the Republic. This does not allow for referendums, but it does create more opportunity for public input into political decisions.

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

https://www.parlamento.pt/Legislacao/…/ExercicioDireitoPeticao_Anotado.pdf

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, have diversified since 2009 and there are now at least four major players: RTP, SIC, TVI and CMTV.

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 newspaper, which became weekly in mid-2018). 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.

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 Law 26/2016. 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 effective than their de jure ability.

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

www.ministeriopublico.pt/iframe/sistema-de-informacoes-da-republica-portuguesa

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.

During the previous review period, the government of Portugal passed a law – the National Strategy for Equality – to increase the social and political rights of citizens. The law includes several strategic objectives to be achieved by 2030 and three action plans to implemented by 2021. The law focuses on promoting gender equality, preventing domestic violence, and combating discrimination on the grounds of sexual orientation and gender identity. A report was produced highlighting the measures already adopted in 2018, though the impact of these educational measures will take time to percolate through to changes in attitudes and behaviors.

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. If there are any lapses, they are due more to bureaucratic inefficiency rather than a conspiracy by the Portuguese government.

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. As the report noted below indicates, Portugal is recognized for having a low level of discrimination.

Nevertheless, two areas of concern remain.

First, the gap between average pay for women and men, which is higher now than in the late 2000s. The most recent data indicates an unadjusted gender wage gap of 16.3% in 2017. This is better than the level in 2016 (17.5%), but it is still above the EU average and well above the levels in the 2000s, when it stood at 8.5% in 2007.

Second, racial discrimination remains a concern. The Commission for Equality and Against Racial Discrimination (CICDR) received and analyzed 346 complaints regarding racial discrimination in 2018, an increase of some 93% compared to 2017 (119). This was the highest number since at least 2000, surpassing the previous high in 2017.

As in the previous SGI review period, the current period was marked by cases of apparent discrimination, which gained considerable media traction. In particular, a video of police violence against people of Angolan origin in a deprived neighborhood in the suburbs of Lisbon (Bairro da Jamaica) in January 2019 sparked considerable public discussion and protests, though with little practical consequence. In the aftermath of this debate, the vice-president of the largest police union spoke of his academic research in which he highlighted the existence of pockets of racism and xenophobia in the police force. He was forced to resign from his post in the union as police officers protested against his comments.

The period under review also saw the conclusion of the trial involving 17 police officers accused of carrying out and then covering up racially motivated attacks on a group of young black Portuguese men in 2015. In total, eight of the police officers were found guilty of some of the charges, although all were acquitted of the charges of racism and torture. The decision was seen as historic, as it was the first of its kind to involve an actual prison sentence for a police officer: one of the officers was sentenced to a year and half in prison (for being a repeat offender), with the other seven receiving suspended sentences. However, the outcome did not satisfy the plaintiffs, who felt that the accused had got off lightly. It also it did not satisfy some police sectors, with one police union starting a fund-raising campaign in support of the officers found guilty.

Citations:
Comissão para a Igualdade e Contra a Discriminação Racial, “Relatório Anual 2018,” available online at: https://www.cicdr.pt/documents/57891/0/Relatorio+Anual+2018+-+VERSÃO+FINAL.pdf/61a87690-3cdd-43e4-ab7f-1f415559fb42

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 (2019), “PSP abre inquérito à denúncia de violência policial no Bairro da Jamaica,” available online at: https://www.publico.pt/2019/01/20/sociedade/noticia/familia-denuncia-violencia-policial-bairro-jamaica-1858659

Público (2019), “Sindicalista histórico demite-se após alertar para racismo na PSP,” available online at: https://www.publico.pt/2019/05/27/sociedade/noticia/maior-sindicato-psp-perde-dirigente-historico-1874346

Público (2019), “Oito polícias de Alfragide condenados, nove absolvidos. Vítimas vão receber indemnizações,” available online at: https://www.publico.pt/2019/05/20/sociedade/noticia/julgamento-alfragide-decisao-1873346

TVI24 (2019), “Sindicato dos Profissionais de Polícia abre conta solidária para agentes condenados da Esquadra de Alfragide,” available online at: https://tvi24.iol.pt/sociedade/psp/sindicato-dos-profissionais-de-policia-abre-conta-solidaria-para-agentes-condenados-da-esquadra-de-alfragide

https://tvi24.iol.pt/…2019/ocde-portugal-tem-niveis-de-discriminacao-muito-baixos-c..

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.

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 2018 stood at 1,743, a slight decrease vis-à-vis 2017 (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.

During the period under review, the Assembly of the Republic approved measures to broaden public access to the courts.

Judges’ and magistrates’ associations called for strikes over pay and working conditions during the period under review. This resulted in increases for judges’ pay, approved in May 2019.

Citations:
Jornal de Negócios (2019), “Deputados aprovam estatuto que permite aos juízes terem salário acima do primeiro-ministro,” available online at: https://www.jornaldenegocios.pt/economia/politica/detalhe/deputados-aprovam-estatuto-que-permite-aos-juizes-terem-salario-acima-do-primeiro-ministro

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

https://observador.pt/2018/…/associacao-sindical-dos-juizes-estima-90-de-adesao-a-gr..

https://www.portugal.gov.pt/pt/gc21/comunicacao/noticia?i=aprovado-novo…

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., Clara 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.

In May 2019, in a rare resignation, Clara Sottomayor resigned from the Constitutional Court. In September 2019, she explained that she had resigned in protest to the process of elaborating an opinion, which fails to sufficiently safeguard dissenting views within the court.

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

Maria Clara Sottomayor (2019), “Quem guarda o guardador?,” in Público online, available at: https://www.publico.pt/2019/09/23/politica/opiniao/guarda-guardador-1887519

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.

The Council of Europe’s Group of States against Corruption (GRECO) compliance report published in June 2019 found that Portugal had satisfactorily implemented only one of the 15 recommendations published in 2016, with eight partially implemented, while the remaining six had not been implemented. This marked a minor improvement vis-à-vis the results published in March 2018, with the conclusion being that “the current very low level of compliance with the recommendations remains ‘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 previous SGI reports, we noted a number of high-profile cases. Some of these concluded during the current review period. In the Golden Visa case, which involved a number of high-ranking civil servants and a former minister of internal affairs, Miguel Macedo (2011 – 2014), the sentence was proffered in January 2019, with the former minister being found not guilty, but with two high-ranking public officials being found guilty. In the Fizz case, a magistrate was found guilty of accepting bribes from a former vice-president of Angola in December 2018. Meanwhile, a number of other cases are ongoing, including the Lex case, involving another Portuguese judge; the Banco Esperito Santo (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 has been widely interpreted as indicative of the crucial role of leadership in prosecuting corruption in Portugal. The new attorney general, Lucília Gago, took office in October 2018 and has not shied away from controversial decisions. This was evidenced most recently when the PPS pressed charges against the former minister of defense, Azeredo Lopes (who was in office until October 2018 and served in the first António Costa government). The charges (involving the covering up of information relating to the robbery of arms in Tancos) were submitted on 25 September 2019, in the middle of campaigning for the 6 October 2019 election, which was criticized by the incumbent Socialist Party.

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 (2019), “Fourth Evaluation Round – Interim Compliance Report Portugal,” available online at: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680954185

Público (2019), “MP diz que Azeredo soube com antecedência da recuperação das armas. Ex-ministro fala de acusação ‘eminentemente política’,” available online at: https://www.publico.pt/2019/09/26/sociedade/noticia/azeredo-lopes-admitiu-sms-soube-antecedencia-recuperacao-armas-1887986
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