The ‘Two Faces of Janus’ of the Portuguese Judicial System: Tradition and Modernization

Ana Melro; Filipe Teles; Lídia Oliveira

doi:10.36745/ijca.462

Introduction

In the last 20 years, the Portuguese judicial system has seen a transformation through its modernization, by computerization and digitization. Although the need for transformation has been long recognized, at least since 1976 (Fonseca & Carapeto, 2009; Pedroso, Trincão & Dias, 2003), effective implementation is quite recent with the most prominent projects having been developed in the last 20 years.

This paper starts with a brief characterization of the Portuguese judicial system, including its organization and hierarchy, human resources’ statistics, and the role of Information and Communication Technologies (ICT) in the development of judicial system modernization projects. After a study of the main judicial system’s tension and conciliation focal points, it attempts to provide insight into a proposed ideal model to be developed.

The proposal of an ideal model of the Portuguese judicial system is developed through analysis of eight interviews, conducted as part of a PhD research project, which has been in progress since 2021. These interviewees were selected considering their function in the Portuguese judicial system and the years they have been working there. Their characterization is available on Table 2. The results of these interviews suggest that, although major modernization and innovation processes are already being implemented, important judicial system principles such as transparency, fair access to justice, efficiency, efficacy, proximity, and humanity are not being fully achieved.

For an ideal model of the judicial system to be achieved, important criteria must be met, including: services having access to updated ICT, officials’ specializations in a specific law area (for example, the development of Magistrates, Court Officials and even Lawyers’ training programs as a specialization in a law area, such as family law, labor law, penal law, among others), the cost of justice being affordable, and the language to communicate with citizens being more accessible. The model must ensure that not only ensure all citizens equal treatment under the law, but must be transparent, efficient, and easily accessible.

The point of view adopted in the different studies determines which of these criteria are given preference. If a study aims to understand the economic impact the judicial system has, and relates this to its efficiency, it will conclude that the use of production lines and technology must be considered (Ippoliti & Tria, 2020). If the goal is the understanding of the difference brought about by recent technological developments in the judicial system, it will argue that criteria such as artificial intelligence and decision processes must be considered (Zhao, Wang, & Shi, 2021).

Legal technology is under scrutiny, as it would allow the judicial system to be more efficient while providing fair, faster and more transparent decisions (Wang, 2020). However, it is currently judicial workers (judges, court officials, public prosecutors, police officers, lawyers, notaries, and others) who have the main responsibility to provide secure and certain decisions to citizens.

The judicial system is characterized by rationality, and because of that, it is important that certain variables are present. When citizens access the judicial system, they look for the fairest decision, the confidence and security that the decision is correct, and that everyone involved in the decision is focused on what they are doing. To sum up, the public needs to trust the process and the people within it.

For that to be achieved, it is necessary that the judicial system is in step with societal changes and evolution, that modernization processes blend with tradition – characterized as the existence of some specific historical procedures and heavy bureaucratic processes –, and that judicial system workers have proximity to the decision process, as well as proximity to citizens.

To understand how tradition and modernization are combined in the Portuguese judicial system, this paper starts by analyzing its main departments and explores how it is structured. It then examines justice statistics and how ICT infrastructures have evolved in recent years, as well as their relevance to the main projects implemented. The second section in this paper explains the methodology used. This is then followed in the third section by an exploration into those conflicting elements that still exist (or that have arisen due to new variables) in the Portuguese judicial system. This paper thereby endeavors to answer the following questions: Firstly, what are these contentious elements of the judicial system? Secondly, why do they exist? Thirdly, are they new or have they existed for a long time? Fourthly, how can they be solved or minimized?

The fourth section of this paper elaborates on the conciliation elements, some of which are similar to the contentious ones discussed before. Questions which this part will aim to answer include: What are the conciliation elements? How can they be leveraged? Are they recent?

The analysis in the two previous sections focus on two viewpoints: firstly, that of judicial system workers, and secondly, that of citizens who look to the judicial system to solve some problem they are facing. Next, the paper reflects on an ideal model retrieved from the analysis of tension and conciliation. Those three sections include agents’ discourses and excerpts from the interviews which clarify the assumptions.

The final part of the paper presents the conclusions reached so far in this research.

1. Portuguese judicial system characterization

The characterization will consider three main dimensions: organization and hierarchy of the judiciary, human resources, and ICT projects/investment.

1.1. Portuguese judiciary system organization

The Portuguese judicial system is organized in two main jurisdictional orders: Administrative Courts and Civil Courts. Apart from that there are two other parallel decision dimensions: the Constitutional Court and the Court of Auditors. The division is as follows in Figure 1:

Portuguese judiciary system organization.
Source: Justice Transformation in Portugal (OECD, 2020).

The Portuguese judicial system is divided into three layers, according to the appeal possibilities. In the civil courts there are, from bottom to top, the District Courts, the Court of Appeal, and the Supreme Court of Justice. In the Administrative Courts, again from bottom to top, there are the Fiscal and Administrative Courts, the Central Administrative Courts, and the Supreme Administrative Court. On the top, and with different tasks, there is the Constitutional Court and the Court of Auditors.

Regarding the resolution of disputes there are a further three solutions, defined as the alternative dispute resolution mechanisms: Arbitration Courts, and (not shown in the diagram, because they may be included in this category) Peace Courts, and mediation (civil, commercial, and criminal).

Finally, directly intertwined with the judicial system, there are different kinds of services and resources, such as, notaries, registries, police forces, and lawyers.

1.2. Portuguese judicial system human resources

There are seven judiciary professions: judges, public prosecutors, lawyers, solicitors, enforcement agents, judicial administrators, and court officials. In addition, there are other professions intertwined with the judiciary, namely, notaries, criminal police organs (the Criminal Investigation Department, the Public Security Police, the Republican National Guard, and the Aliens and Borders Department), conservators, and employees at registries’ offices.

The following table (Table 1) and graphs (Graph 1 and Graph 2) show the number of employees in Portuguese courts:

Table 1

Human Resources in Courts, according to category, in 1991, 2001, 2011 and 2021.

YEAR	2021	2011	2001	1991
CAREER/CATEGORY	NR. OF EMPLOYEES	NR. OF EMPLOYEES	NR. OF EMPLOYEES	NR. OF EMPLOYEES
CIVIL COURTS	10.338	11.138	11.985	8.178
Judges	1.735	1.748	1.440	1.028
Public Prosecutors	1.393	1.459	1.070	793
Court Officials	7.040	7.899	9.446	6.161
FISCAL AND ADMINISTRATIVE COURTS	805	669	583	251
Judges	286	182	132	98
Public Prosecutors	87	88	79	35
Court Officials	423	374	187	111
CONSTITUCIONAL COURT	110	75	85	69
Judges	13	12	11	6
Public Prosecutors	3	2	2	2
Court Officials	36	33	40	28

[i] Source: Portuguese Justice Statistics (General-Direction of Justice Politics).¹

Human resources: registries and notaries (No.).
Source: Minister of Justice (2021).

Other human resources in the judicial system (No.).
Source: Minister of Justice (2021).

Enforcement agents, solicitors and judicial administrators are relatively new professions in the judicial system. For example, in 2003 the solicitors career went through a major transformation, with the creation of the Execution Solicitor,² which gave a new emphasis to the profession. In the same year of 2003, the Enforcement agents’ profession was created and made mandatory in an executive judicial process. The judicial administrators’ career was created and regulated one year later, in 2004.

Police forces are directly involved in the judicial system through crime investigation or maintaining law, order and social peace. Graph 3. below tabulates recruitment numbers for: Criminal Investigation Department, Public Security Police, Republican National Guard, and Aliens and Borders Department.

Human resources in the police forces (No.).
Source: Pordata.³

1.3. Information and Communication Technologies and their role for the Portuguese judicial system modernization projects

The development and implementation of modernization and innovation projects in the judicial system has been of political concern in recent years and this is perceived by reading the different Government Programs. The main goal was to convert the judicial system into an efficient one, with the focus on quick and effective decisions, present in the Civil Procedure Code as a principle to follow and as a guideline for all the projects developed and implemented. To achieve this goal, government documents consider the path was to introduce new and/or improved technologies, and interoperability between all judicial system organizations (for example, Registrations and Courts, Enforcement police agencies and Courts). The main project that reflects this is Justiça + Próxima (Closer Justice). The goal was to address four main issues: efficiency, transparency, proximity, and humanity.

The Government programme defines the main guidelines for all the Public Administration departments and offices, set out in two documents: “National reform programme” and “Major planning options”. These two documents define the main projects: JPM (stands for Justiça + Próxima), Simplex + and Capitalizar, for example. See Figure 2 above.

Portugal’s strategies for justice transformation.
Source: Justice Transformation in Portugal (OECD, 2020).

The JPM project is defined as “digital by default”, where measures suggested by citizens and stakeholders, mainly based on technology, were implemented to transform justice into a more efficient, transparent, closer, and humane response. The project is in its second phase (2015–2019 and 2020–2023) and has over 150 measures.⁴

The Simplex + project introduced new ways of achieving (mainly digital) simplification. It provided online services and platforms which allow citizens and businesses to access certifications, registries, and various digital official personal documentation. It also introduced new ways of communication between judicial system services and citizens. This transversal project illustrates the level of inter-connection between services in the judicial system. The project was launched in 2006 and is now in its seventh phase, the results can be found at simplex.gov.pt.⁵

The Capitalizar project is focused on businesses, providing government credit lines to incentivize investment in (re)capitalization and innovation. The project is also influenced by measures applied in the judicial system aiming to make the communication between the judicial system and companies digital and agile.

All the projects combined comprised investment of 15,5 million euros in ICT sector plans and ICT Strategy in the Minister of Justice, between 2016 and 2020 (Minister of the Presidency and Administrative Modernization, 2020) and resulted in Portuguese Justice transformation, and brought Justice closer to its goals: efficiency, transparency, proximity, and humane response.

2. Methodology

The paper presents the results of eight semi-structured interviews⁶ of agents placed at the level of the judicial system implementation processes (Table 2). Those selected were typical of judicial officers and citizens who felt the changes more directly. The interviews were also scrutinized with content analysis and NVivo Software.

Table 2

Interviewees’ characterization.

FUNCTION IN THE JUDICIAL SYSTEM	SEX	YEARS WORKING IN THE FUNCTION	OTHER FUNCTIONS OCCUPIED IN THE JUDICIAL SYSTEM
Court Official_1	Female	5 (since 2017)	Public prosecution internLawyer
Lawyer	Female	26 (since 1996)	No
Court Official_2	Female	5 (since 2017)	Immigration and Border Service (SEF) Inspector
Notary	Female	4 (since 2018)	No
Notary	Male	16 (since 2006)	Lawyer
Registry Official	Female	19 (since 2003)	Lawyer
Criminal Investigation Inspector/Interpol Inspector	Male	26/16 (since 1996/2006)	No
Public Prosecutor	Male	36 (since 1986)	No

Interviewees were selected considering different variables: their function in the judicial system; geographical location; years of experience and gender heterogeneity.

These interviews took place between November 19^th and December 27^th, 2021. Six took place face-to-face. The other two interviews were conducted online. All interviews were recorded for transcript analysis purposes and all the participants were informed of the project’s goals and signed an informed consent. The names of the interviews were omitted for data protection purposes.

3. Elements of tension

After a brief characterization of the Portuguese judicial system regarding three main dimensions – organization and hierarchy of the judiciary system, human resources, and projects and ICT investment – the next section will analyze tension between modernization and tradition when introducing reforms in the judicial system. For the study, two viewpoints will be compared: that of the judicial system workers, and that of the citizens.

3.1. Judicial System workers’ point of view

One of the biggest challenges of the COVID-19 pandemic was the massively increased usage of technology. Electronic platforms like CITIUS and SITAF were developed and implemented,⁷ and electronic processing was considered. In some specific cases, listening to witnesses and/or other relevant declarations of some parties was happening online. Other situations were rarer, for instance, telework; eliminating paper use (mostly in big processes) adopting clearer language; and citizens’ full access to electronic processes.

One of the tensions workers mentioned was the existing difference between technology usage between generations. This can be related to digital literacy. For new generations telework is as adaptable to the judiciary work as it is to any other kind of work. Adaptation to new digital platforms or new technological tools is also faster than for older generations, and for older generations transformations are harder to accept and engage in.

Older judges end up being more resistant to this change and like to see people face to face. Even because one thing is to hear a witness in person, and another to hear her/him by video call. Court Official_1 since 2017.

[…] the judges, in this field, are also very, I won’t say old-fashioned, but… They really like to “see” things. I speak from my own experience. Judges who master IT are rare. If there is any problem we always must go there to help, either because the computer does not turn on, or because the document does not open, for example if the color of the PDF icon was red and now is grey, they can’t find it. Court Official_1 since 2017.

[…] in the beginning not everyone had access to a computer. They were distributed hierarchically, first for the Judges, the Public Prosecutors, for the Court Officials, and finally for the Assistants. But there were people who didn’t want to, people who didn’t want teleworking, older people. […] there are people in their 60s and older, who are waiting for retirement, and who didn’t want to telework, because, leaving house, going to court was the only thing accepted, they didn’t have internet at home, they didn’t adapt. Court Official_1 since 2017.

In addition to those barriers there is the constant need to access information in the physical version, especially large processes with more than two or three volumes.

Most judges in this field are still very much attached to paper. Even attached on being in court, they like to go to court, they don’t really like to work from home. Therefore, I think that these changes that have taken place are largely due to the influence of the Court Officials and because the IT staff are also Court Officials. The improvements are always the result of our day-to-day difficulties and because we question. Court Official_1 since 2017.

In fact, large processes are frequently translated into delays in Justice, which is one of the biggest problems identified by the Government⁸ and OCDE evaluations (OCDE, 2020), and some implemented measures to prevent and eliminate those delays have at the core the introduction of technology in its various forms, either through the development of management platforms or by implementing management practices. This is not without some constraints and tensions:

[…] first, which was also not recommended in the law that was published, was legal professionals’ training. These are the first ones who don’t have the skills, and they don’t have two types of skills, they don’t have the competence of digital literacy, in a mass way, to be able to manage processes. Which are easy, but always take some time. Time to understand: the complexity of the processes, the way of videos’ recording, the signatures’ verification, PDF’s verification, if they are well signed, if they are not, this always takes some time. Notary, since 2006.

Implementing technology tools in the judiciary system brings up very sensible questions, such as data protection. However, introducing them in complex and large processes is a bigger challenge, for many different reasons, for example, the verification of declaration of will, the obligation to be alone when testifying in trial.

[…] we are still used to having the deed read in the notary’s office, in front of the notary. But more and more, and with the pandemic, it has come to prove that technology is essential in the modernization of our profession. In particular, and now with the possibility, which is now on stand-by, but would come into force November 1^st, which is the acts to be electronically, namely, divorces, marriages, and even public deeds. Notary since 2018.

Another tension aspect mentioned by the interviewees was the lack of officials’ specialization, namely judges and public prosecutors.

As for lawyers, I defend specialization, because a lawyer who knows everything, who knows a little of everything, knows a lot about nothing. And for judges it is the same. Therefore, I consider that it is essential, one of the main reasons it is essential is connected to the appeal decisions. Specialization would reduce the number of appeal decisions, because if in a first instance there would be a specialized decision (and well reasoned, the citizen wouldn’t need to appeal.) Therefore, I think specialization at the level of judges and public prosecutors is fundamental, as I think it is fundamental at the level of lawyers, I have always defended it. Lawyer since 1996.

[…] nowadays, it is impossible, in the legal world, to be a specialist in general practice, as I usually say, it is impossible, even in any law firms. For magistrates there must be specialization because it is impossible to encompass everything. Public Prosecutor since 1986.

There are three elements which contribute to tension in modernizing processes in the judicial system: the lack of human resources, the outdated ICT and the constant demand to present numbers (“satisfying” ones), regarding service performance. As seen in the previous section, the number of human resources in the judicial system is low, specifically, in professions such as judges, public prosecutors and court officials.

The reality is that there is a shortage of people in the courts, the courts have mostly elderly people. In all sections there is a shortage of people. Court Official_1 since 2017.

Sometimes, what we have are barriers of time, of being few, computer applications do not collaborate, the Internet does not help. Registry Official since 2003.

ICT software and hardware need a significant investment, especially if the major changes and reforms require the introduction and implementation of ICT tools.

[…] we still have different speeds, this has to do with hardware from the start, because people have different computers and, therefore, the speed with which you go to a police station, the fact that they have a computer with an operating system from 15 years ago, it takes 20 minutes to write a complaint, the citizen thinks that the service is a mess. Notary since 2006.

And, finally, there is constant demand to present excellent statistics or justifying the bad ones:

They [the Minister of Internal Administration in Portugal] invented a situation that now exists every year, which is that the government assesses every crime. All the Police forces, everyone must fill papers, that is a huge joke, but they are forced to fill papers to understand the evolution. Of course, that’s statistical data. All statistical data, for everything that can be done, can be manipulated. They always take a beauty treatment; nobody wants things to be too bad. But, of course, those numbers demonstrate some reality. Criminal Investigation Inspector/Interpol Inspector since 1996/2006.

3.2. Citizen’s critical points

This subsection analyzes the interviews conducted with judiciary system workers, as well as the theoretical background. The goal is to identify citizens’ critical points regarding the judicial system modernization and any tension elements.

Despite the Portuguese judicial system evolution (Dias, Casaleiro, Lima, & Gomes, 2021; Dias & Gomes, 2018; Pedroso, Trincão, & Dias, 2003), some critical aspects regarding citizen’s point of view when accessing justice or dealing with judicial processes persist.

Firstly, the cost of access to justice, meaning, the taxes and fees citizens must pay when starting or responding to a lawsuit and the cost of retaining a lawyer in most of the judicial processes. Access to Law and Courts in Law nr. 34/2004, July 29^th provided measures aimed at reducing those costs, such as exemption from the payment of court fees and other charges and/or from the appointment and payment of lawyers. However, more needs to be done if the Government’s intention is to accomplish proximity and humanity.

Secondly, linked to this aspect is the complex language used in all the different procedures. Official court documents remain confusing, complex, and difficult to read and understand. A typical citizen, unaccompanied by a lawyer, will likely experience some difficulties in understanding what is required. This also applies to understanding the different stages of the judicial processes. This underlines why there is an article in the Civil Procedure Code titled “Principle of using simple and clear language”.

Thirdly, another critical point for citizens is the constant delays of justice. This topic has been widely discussed by Gomes (2011) and has suffered an evolution over the last ten years. Graph 4 presents some of the most common judicial processes and their length in months.

Average length of some terminated civil proceedings in Courts of First Instance (months/mean).
Source: Pordata.

Generally, the number of months for a judicial process to be concluded have been decreasing. However, 20 months is still a long time for someone to have a claim of ownership decided, or even 21 months for an inventory. This clearly demonstrates the delays that the judicial system faces.

In fact, the delays in justice is an issue that have been widely discussed in academia (Lucy, 2020; Melcarne, Ramello, & Spruk, 2021; Susskind, 2019) and it is widely regarded as a true form of barrier to justice.

Finally, the paper considers as an element of citizens’ tension their need to develop digital literacy and infocommunication competences (digital competences). This is needed for them to be able to keep up with all the digital transformations and the introduction of ICT in Justice. Infocommunication competences must be considered in its various forms: operational, informational and communicational (Borges, Bezerra, Diomondes, & Coutinho, 2013; Borges & Oliveira, 2011).

The improvements in Justice provided by the introduction of ICT and digital platforms in its various services was not preceded by citizens’ competences development. For services such as asking for a certificate or some notary acts, citizens and companies can now use digital platform. However, as the following interviewee claims, not everyone has access to these competences and information, which excludes them from the system.

As one of the interviewees stated:

And then, essentially, the issue of training citizens’ digital literacy, which is something that doesn’t take a year or two and there are people who will always be excluded from the system. There are people who, for a variety of reasons, will never be included in the system, that is, they will never have enough digital literacy to do these kinds of acts. Notary since 2006.

4. Conciliation elements

This section discusses the conciliation elements between modernization and tradition in the Portuguese judicial system. It is organized in two subsections: first, the judicial system workers’ point of view, and second, the citizens’ critical point of view.

4.1. Judicial System workers’ point of view

One of the main tension elements in the implementation of reforms is the resistance to change by those who are responsible for implementing them – whether by not knowing what the new demands are or because of the fear of failure. Either way, that resistance can cause delays in reforms’ implementation and constraints to progress.

The introduction of ICT, digital platforms and documents in a system that has years of tradition in face-to-face moments, solemnities and in paper processes is difficult. There are many dimensions to be considered (already discussed), mainly regarding sensible data protection.

But when it comes to digital literacies and info communication competences, teamwork was an enabling factor in ICT introductions as workers more comfortable in using ICT could help those who were less comfortable.

Although there is, yes, some resistance, I think there are already… very important steps being taken in terms of dematerialization. I think the pandemic helped, but things are changing, I think there are also younger judges, who are already adept of these [digital] procedures, they no longer want so much paper or to see the cases in the cabinet. Older judges end up being resistant to this change and like to see people face to face. Even because it is one thing to hear a witness in person, and another to hear a witness by video call. Court Official_1 since 2017.

I think that the fact that there are many older people makes it difficult, because Court Officials learn a lot on their own. Usually, when these new features are introduced, no one really knows how they work, so we must learn by trying. And younger people, for example, this happened with WEBEX [the video calls software used in Courts], when it was introduced and we had to do the trial audience or conference, nobody knew how it worked. And there were several failed attempts, no one knew why, and the experts couldn’t explain it to us. For the older colleagues this experience was more difficult, but we tried, found ways, and asked for help. Court Official_1 since 2017.

One aspect that was crucial for the implementation of some changes was the COVID-19 pandemic, mainly by bringing modernization to some traditional processes. The Decree Law Nr. 10-A/2020, March 13^th introduced measures to reduce the spread of SARS-CoV-2, some of which directly affected the judicial system such as, the suspension of judicial deadlines (the non-urgent ones) and of all the trial audiences, inquiries, conferences (once again, only the non-urgent ones), and the implementation of teleworking as a mandatory measure.

With telework there had to be ways of still controlling judicial deadlines (the ones that were not suspended), statistics and the continuity of work.

But with the pandemic, entire Court sections were at home or only one person of that section was going to Court, there was a more rigorous control in the backstage. That control was to know if people were really working, if they came in at 9 am, if they left at 5 pm, how many acts were practiced during the day. That was more scrutinized in the pandemic, yes. Court Official_1 since 2017.

Modernization is a process (Smith, 2003). When variable ICT is introduced to the judicial system (with all the possibilities it presents) it is difficult to see an end to the process (Susskind, 2019), regarding the constant transformations occurring, take Artificial Intelligence, as an example. As shown in the first section, there are major projects being implemented to modernize the judicial system. It is important that these projects consider not only modernization but also tradition while maintaining the high degree of certainty and security required by the judicial system when introducing new ways of making the processes more agile for all those involved (citizens, actors from the judicial system, companies, etc.). As interviewees put it:

Today, information is transmitted in real time. Therefore, the [information transmission] paradigm has completely changed. And the same applies to other issues, to the commercial register, to the car register, it is allowed more consultation [online, regarding the processes’ progress, by accessing real-time information]. On the other hand, the process of accessing information and the way we consult it, share it, make it available, etc., has become much faster. Therefore, the biggest changes were these, on the one hand, computerization, dematerialization, databases and, on the other hand, the immediacy on the part of citizens’ accessing to documents and information. Notary since 2006.

Well, I think there were several good ones [changes], especially because Simplex, in practice, has materialized and has been very useful. It was the citizen’s card, everything in the computerized system is fabulous, if the system works. So, I think, in terms of changes, there have been quite a few positive ones that are happening. Registry Official since 2003.

People are central to modernization processes. They carry the heritage of traditional ways of doing things and have the burden of making it work in these times of change. Human resources are key.

Even the few [workers] that are here have embraced all the projects that have been proposed tous in an almost stoic way, it’s true. And, often, with… One has an online training, has a little training of 5 or 6 hours and then, in the end, the training is the practice. I think it also has a lot to do with human resources, as they are an obstacle, but the ones that exist are those with whom we manage to carry on and then it’s like this, we complain, but we manage to keep walking. Registry Official since 2003.

Considering all the elements which allow reconciliation of modernization and tradition in the judicial system, human resources are the most important. They are the ones who contribute to this sensible public policy – the judicial system – to evolve without losing its essence: the resolution of conflicts.

4.2. Citizens’ critical point of view

There are some conciliation aspects when it comes to combining modernization and tradition in the judicial system.

As seen, the majority of the projects to modernize justice have at their core technology and/or digital platforms. The primary goal was to contribute to the citizens’ and businesses’ ease of access to their personal and official documents (civil registries, for instance, such as the citizen card or different kinds of certificates). The Simplex project is the main example of this goal.

Having this in mind, citizens have access to various types of online services, which provided speed and proximity. Graph 5 illustrates this information:

Simplex project measures.
Source: https://partilha.justica.gov.pt/, visited on June 20, 2022.

As discussed, a lot is to be done regarding effective citizens’ access to law and courts, especially considering the cost of Justice and the processes’ delays. However, most of the Closer Justice program measures have already contributed to facilitating the way citizens interact with the judicial system.

For example, in the executive judicial processes, language is clearer. As seen on Graph 4, the length in months of most of the judicial processes have been reduced. Simplex measures also contributed to this improved access to law and courts, by making it easier to access personal and official documents online, which, on the other hand, provides ease of access to information about the executive judicial processes and, therefore, provides efficacy and quick responses.

Moreover, the measures that are still to be implemented in Closer Justice, Simplex and Capitalizar programs always considers the reconciliation needed between modernization and traditional elements in the judicial system.

Change processes and attitudes of Portuguese Judicial System workers

Pedroso, Trincão and Dias (2003) classified the reforms that took place in the Portuguese judicial system into four types:

Reform of human resources. In this type, governments choose to increase the number of collaborators in the judicial system;
Management reform, optimizing management decisions, making the service more expeditious;
Innovation and technology reform, through which the judicial system sees its material resources being improved and meeting the most recent evolutions and technological solutions;
Reform of justice administration, namely through the creation and provision of alternative dispute resolution solutions, which are much more expeditious and flexible (Pedroso et al., 2003, p. 25).

Streamlining, simplification and bureaucracy elimination took shape when, in 2006, projects such as “Empresa na Hora” [On time Company] and “Marca na Hora” [On time Brand] began. It was also from this point onwards that increased attention was attributed to information and communication technologies and to the role that these technologies have in the fulfillment of goals. At the same time, preponderance is given to infocommunication skills (Borges, Bezerra, Diomondes, & Coutinho, 2013; Borges & Oliveira, 2011). Initially, those skills were to be developed by public administration employees and, later, by citizens.

The evolution of what has been the definition of the political strategy of the change processes in the different Portuguese constitutional governments can be observed in the article that is already published and accessible (Melro, Teles, & Oliveira, 2022). In addition, some of the main projects where the change processes’ effects can be felt (in addition to “Empresa na Hora” and “Marca na Hora”) are “Tribunal +” [Court +] and “Justiça + Próxima” [Closer Justice].

What was intended in all these projects and along the defined strategic line was to ensure that, both for citizens and for workers in the judicial system, the principles that guided change are evident: transparency, efficiency, effectiveness, proximity….

For this reason, the implementation of these projects was clearly identified by workers in the judicial system, as well as their influence on the work carried out, which contributed to more negative attitudes, at first, such as resistance to change; but which turned into acceptance and verification of positive effects at work.

[…] everything has changed in the last 10, 15 years, from an informatics point of view. Moreover, it is going to change more now. Possibly, the next step is the distance acts. Notary, since 2006.

I think 2004/2005 were the turning years. Even accounting was all done by hand; there were books for everything. Now it’s all computerized, it’s all much easier: recording, maps, it’s all more intuitive. Moreover, for example, birth certificates, marriage registers, any certificate, I can have information from Algarve, the islands, even from the consulates, which have the same application. This makes it a lot faster because everything is computerized. I think that was the big change. Registry Official, since 2003.

When I started, including in my internship, the difference between emerging platforms like CITIUS and SITAF, was brutal. It was a bunch of papers that were sent to the courts, and it was highly bureaucratic. We had to sign sheets and sheets and sheets and sheets. Lawyer, since 1996.

In general, attitudes towards change processes have been positive among workers in the judicial system, with the advantages being perceived as factors of evolution and approximation to the principles of that system.

Change processes and attitudes of Portuguese Judicial System stakeholders

The main stakeholders of the judicial system are the citizens, for whom it has already been analyzed which are the main critical points both in the elements of conciliation and in the elements of tension in the change processes and reforms.

Stakeholders of the judicial system are also those who define public policies. And two levels can be identified: at a supranational level, the European Union, the European Commission and the OECD. At a national level, the State, namely, the responsible ministry for defining policies that will respond to supranational demands.

The European Union is the entity responsible for funding the policies that is helping to streamline the Portuguese judicial system. Furthermore, it will also be at the EU level that there will be a perception of the functioning of the defined and implemented policies. With the elimination of borders, it will increasingly be necessary for the judicial system to respond quickly to requests from European residents, whether it be about a divorce, defining the exercise of parental responsibilities, car registration or even European cooperation in police matter. Reality is vast and complex, as the interviewees note:

The European Succession Regulation completely changed the succession paradigm at the European level. […] The digital signature we all use now for a thousand things is based on a previous regulation, a previous directive, and now on the current EIDA regulation, which is the regulation that serves as the basis… The very matters of matrimonial regimes, how they operate, and the impact on cross-border relations are European regulations. […] Therefore, our life today is regulated by the rules of the European Union. Everything in our life is… I don’t think there is a single area where it doesn’t exist [European influence]… Notary, since 2006.

We are obliged to comply with many European regulations, which have been implemented in the last few years. Moreover, I notice now in my professional field. The European Regulation of the European Succession Certificate, a European standard, practically binds all the countries of the European Union. For example, this one that was implemented on the 1st of July a new energy certification law imposed by the European Union. A new law to combat money laundering will start to apply on January 1st, based on a European standard. Moreover, even all these laws on money laundering, which we know are European Union impositions. Notary, since 2018.

I have requests, for example, for children to return to France through international conventions. I have already had cases of forcing a child who was taken by the mother to Germany to return. I have requests from Switzerland to execute feeding pensions […] More and more, we have situations like this, and there are parents who, for example, even have divorce proceedings in which the father resides in Germany, the mother resides in Germany, and the children are studying in Germany. And they file a divorce action here in Portugal, and if there are minor children, the consequent regulation of parental responsibilities. There’s no problem. It is appreciated and decided here. Moreover, each time, in my day-to-day, I have more situations like these. Public Prosecutor, since 1986.

The European Commission and the OECD are the responsible entities for evaluating the implemented measures. At this level, it matters that the results are positive, that the change is made in the sense of promoting rapprochement between the various European States, contributing to an interoperable judicial system. Here, the report Justice Transformation in Portugal (OECD, 2020) makes an important contribution to understanding the evolution of the Portuguese judicial system, but also what still needs to be reviewed and improved, what are the successes and challenges.

Another of the stakeholders are the various public administration entities that make up the judicial system, but also those that depend on it or depend on some level of information for the course of its operation. Specifically, we are talking about Social Security, Registries, the various police forces, Consulates, that is, all entities that, at some point, may have to resort to the judicial system to obtain some information. Or even that they will have to provide some information to the judicial system itself.

At this level of interoperability, what can be understood from the discourses of workers in the judicial system is that there is still a long way to go. In fact, interoperability has been highlighted as a major challenge, not only for the Portuguese judicial system, but for Public Administration as a whole.

Another thing has to do with the way computer systems communicate with each other, interoperability, which will be fundamental, to ensure that we don’t have to repeat the same information 200,000 times, interoperability. Notary, since 2006.

In police terms, there is something that is the Organic Law of Criminal Investigation, which should control the Police and, in fact, the system was even well thought out. That is, there are crimes that are strictly within the competence of the Judiciary Police and there are crimes that are within the competence of the PSP [Public Security Police] and the GNR [Republican National Guard]. […] For example, corruption is our crime, when, if you go to make a complaint to any police station of the PSP or the GNR, the complaint always has to go to the Public Prosecutor’s Office, and from here it assigns it to the competent Police. Criminal Investigation Inspector/Interpol Inspector, since 1996/2006.

Finally, in terms of stakeholders, it is important to mention workers in the judicial system. They are one of the main stakeholders that everything works, is streamlined and efficient. In addition to being involved in the change process, they are responsible for ensuring that the impact assessment is fed with data from the service and will then be the main beneficiaries of that process.

The result of change processes and attitudes

According to one of the interviewees, human resources are the key for all to work out in the end. Their dedication and will to make it work are the answer for change processes’ to smoothly occur.

Even the few [human resources] that are here have embraced all the projects that they have launched in an almost stoic way, it is true. I think it also has a lot to do with human resources, just as they are an obstacle, but also those that exist are those with whom we manage to take the boat and then it’s like that, we complain, but we manage to get going, so who complains, but walks, the thing is going on, isn’t it?! It’s a little bit like that. Registry Official, since 2003.

In the implementation of the various projects, as well as in the different changes that have taken place over the years in the judicial system, the attitude adopted by both workers and stakeholders is relevant.

The evolution observed in the Tribunal + and Justiça + Próxima projects allow us to conclude that they have been successfully leveraged. The challenges are increasing, but so are the answers currently offered, which are closely related to the use of Artificial Intelligence.

In general, the projects have converged in the sense of aggregating the motivations of citizens, companies, workers and other stakeholders. This can be confirmed by consulting the page relating to Justiça+,⁹ which informs about the results of the projects and plans for the future.

5. Ideal model. Results’ discussion

This section provides the results’ discussion. Considering the interviews’ analysis and the main results achieved, presented in the last two sections, the goal now is to achieve something close to a model of how tradition and modernization can be combined in the judicial system.

As Jann & Wegrich (2006) suggest, the construction of an ideal model should consider some core stages:

“– Specification of program details (i.e., how and by which agencies/organizations should the program be executed? How should the law/program be interpreted?);
– Allocation of resources (i.e., how are budgets distributed? Which personnel will execute the program? Which units of an organization will be in charge for the execution?);
– Decisions (i.e., how will decisions of single cases be carried out?).” (Jann & Wegrich, 2006, p. 52).

In the last years, one of the main reforms implemented in Portuguese judicial system was the introduction of ICT and the processes’ digitization. This is the reform that stands out from the interviewees’ discourses:

[…] technology and the evolution of technology has revolutionized the way we all work, the revolution we are witnessing today and what will happen in the future. What we are starting to discuss, is how artificial intelligence is going to be included into all this and how decisions will be made through an artificial intelligence consultancy or through an artificial intelligence that becomes independent and can issue independent decisions without human intervention. Notary since 2006.

Nowadays, dematerialization is what we are facing. Only the essential documents are printed, we have already stopped printing a lot of things and we end up seeing that, perhaps, the future will be online. Even the trials, conferences and other events are happening on WEBEX. Now, as things have normalized [after teleworking], we are back working in person, but there were habits that stayed. In this case, we continue to use WEBEX and to process everything more electronically than physically. Court Official_1 since 2017.

Linked to this aspect are (or should be) digital literacy and info communication competences. Those are aspects that must be considered when reforms are implemented, as regards both workers’ and citizens. UNESCO defined media and information literacy (MIL) as

“an interrelated set of competencies that help people to maximize advantages and minimize harm in the new information, digital and communication landscapes. Media and information literacy covers competencies that enable people to critically and effectively engage with information, other forms of content, the institutions that facilitate information and diverse types of content, and the discerning use of digital technologies. Capacities in these areas are indispensable for all citizens regardless of their ages or backgrounds.”¹⁰

Therefore, digital literacy or media and information literacy include info communication competences, which include:

– Operation competences: for example, operating computers and electronic devices; internet browsers; information search engines; communication mechanisms; resources for content production;
– Information competences: for example, understanding a need for information; accessing information; evaluating information; linking pieces of information; creating content; and
– Communication competences: for example, establishing communication; creating social bonds; building knowledge in collaboration; evaluating communication (Borges & Oliveira, 2011).

These three dimensions are vital for an efficient use of ICT and especially when data sharing and manipulating, as is characteristic of the judicial system.

However, as posited by Moreira (2017)

“The digital divide, despite being detected more than three decades ago, remains abysmal. Inequalities in access to the Net persist and become more complex, even more so because the simplistic view of the last centuries’ 90s, which placed the solution to the problem in technological equipment and in the creation of access points, quickly proved to be insufficient, given the urgent need to increase digital literacy so that the handling of digital resources is accompanied by the reflexivity necessary for a critical use of technology. Otherwise, that is, if there are no measures to achieve real digital access for all, technological development itself, by creating digital inequalities, ends up generating even more social inequalities.” (Moreira, 2017, p. 71).

This makes sense not only because of the frequent lack of users’ competences, but also because of the difficulty in accessing updated computational hardware and software. These are essential tools for work to be performed faster and for citizens to have access to the full potential of ICT.

These essential tools are expensive translating into high costs for the Government (public expense) and for citizens (private expense). Furthermore, because ICT evolution is constantly accelerating the need to update tools is constant, which translates into more expenses.¹¹

Therefore, an ideal model would imply judicial system services to be equipped with the latest generation of ICT hardware and software and access to constant updates. At the same time, workers and all citizens must both have access to ICT training and the opportunity to develop their info communication competences.

Specialization was the second most mentioned reform proposed in the interviews. This was also observed as early as 2003: “Within the scope of the courts, it is necessary to rationalize and modernize acts and procedures and, eventually, create new functions related to specialization processes or the delegation of powers.” (Pedroso, Trincão, & Dias, 2003, p. 317).

Courts already underwent some reorganization to include this specialization:

One of the elements which makes the modernization process easier, and a lot was also specialization. Both in the criminal part, and in the civil, administrative part. I think it is well implemented. Public prosecutor since 1986.

In 2013, Law nr. 62/2013, August 26^th published the judiciary system reorganization, and it included the specialized courts: family and minors, intellectual property, commercial, labor, etc. This provides citizens with easy access to a court and a group of professionals who are solely dedicated to one specialized category and able to process them faster than before. As seen in Graph 4, this change hasn’t achieved its maximum potential.

However, further professional specialization is still needed enlarged to every district in the Country, as confirmed by the interviewees:

My personal perspective, it has to do with what I see, I understand that whoever should proceed with the prosecution or, at least, attend the prosecution should, in fact, be the coordinators of the Criminal Investigation Police, next to the Public Prosecution. Criminal Investigation Inspector/Interpol Inspector since 1996/2006.

I think it was fundamental that when judges are placed in Courts they are directed to specific types of processes, regarding specialization. I think that even the judges should specialize to be able to decide better. Lawyer since 1996.

In an ideal world, it was the registry offices just making registries and we would continue to conduct the acts we are supposed to, without such a competition even from the public sector. Notary since 2018.

The third aspect of an ideal model for the judicial system (which combines multiple variables) is citizens’ effective access to justice. This includes comprehensible law language, low or accessible fee costs, access to ICT tools and training/knowledge to use them, physically closer services (when they are not accessible online) and ease of access to personal official documents.

In fact, the issue of effective access to justice and the judicial system has become so prominent and still has so many unanswered questions, that it was commented on by Anabela Pedroso (former Secretary of State of Justice between 2015 and 2019) as follows

[…] how is it that the justice system manages, despite this [the fast society evolution], to adapt itself enough to be effectively a response to access to Justice? It’s not access to law, access to law is more linked to the normative component, to the legal aid component, that’s not what I’m talking about. What I’m talking about is access to Justice, the ability that anyone, with a need, not understanding anything about Justice, doesn’t need to know, nor does he/she need to know the big words, law language, but can know for sure that will be treated with equity, transparency and proximity […]. Anabela Pedroso, Secretary of State of Justice between 2015 and 2019, interview conducted on April, 29^th 2021.

The ideal model would then combine principles that are already defined for Public Administration – transparency, efficiency, humanity, and proximity – with principles included in civil and penal procedure codes and in the Constitution of the Portuguese Republic – equality, good justice administration, and simplicity.

Conclusions

Combining tradition and modernization in the judicial system is required in three main areas: ICT introduction, human resources specialization and effective access to justice. These three areas include multiple variables, such as digital literacy, info communication competences, training, employment, diminishing fee costs and simplifying language and procedures. These variables, having a bottom-top perspective, should balance tradition – characterized as the existence of some specific historical procedures and heavy bureaucratic processes – and modernization.

As always, I think virtue is in the middle. We shouldn’t abolish tradition just because it’s tradition, there are traditions that can still be valid and that [the judicial system] is the case, the old way how things were done, it was relatively well. Public Prosecutor since 1986.

The last 20 years can be described as transformative for the judicial system, because of the attempted mass deployment of computerization and digitization. However, at the same time, tradition is what ensures that citizens regard the judicial system as a “place” to resolve problems with a high degree of confidence that the workers and processes are trustworthy.

The paper tried to formulate an ideal model that combines traditional elements with modern ones. Following the stages Jann & Wegrich (2006) suggest, including the variables mentioned before, listening to key agents, and implementing pilots, would help achieve the ideal model that works in a specific period of time, in a specific society, with its specific needs.

Notes

[2] Information available at https://estatisticas.justica.gov.pt/sites/siej/pt-pt/ accessed June 20, 2022.

[3] The Execution Solicitor is responsible for the implementation of all the tasks in an execution process, such as garnishment, judicial notices, eviction orders, among others.

[4] Available at https://www.pordata.pt/en/Theme/Portugal/Justice+and+Security-19 accessed June 20, 2022.

[5] More information available at https://justicamaisproxima.justica.gov.pt/ accessed June 20, 2022.

[6] More information available at https://www.simplex.gov.pt/ accessed June 20, 2022.

[7] The interviews followed a guide containing eight questions. However, participants were given the opportunity to share their opinion regarding other topics not covered by the questions and that were relevant for the research. Furthermore, other questions would be included in the conversation.

[8] These platforms are where the judicial and administrative processes are dealt with, i.e., where judges, public prosecutors, enforcement agents, lawyers, citizens and all other interested parties have access to relevant judicial information and documents.

[9] Information available at https://estatisticas.justica.gov.pt/sites/siej/pt-pt accessed June 20, 2022.

[10] https://mais.justica.gov.pt/, accessed on August 10, 2023.

[11] Available at https://www.unesco.org/en/communication-information/media-information-literacy/about, accessed June 20, 2022.

[12] For more information, please visit https://www.portugal.gov.pt/download-ficheiros/ficheiro.aspx?v=%3d%3dBQAAAB%2bLCAAAAAAABAAzNDQzNgYA62SpeQUAAAA%3d, accessed June 20, 2022.

Funding Information

The Research Project “The Two Faces of Janus in the Public Policies Modernization Process: Innovation and Tradition. The Portuguese Judicial System” is funded by FCT – Foundation for Science and Technology, under the reference 2020.07241.BD.

Competing Interests

The authors have no competing interests to declare.

The ‘Two Faces of Janus’ of the Portuguese Judicial System: Tradition and Modernization

Full Article