COMMISSION STAFF WORKING DOCUMENT 2022 Rule of Law Report Country Chapter on the rule of law situation in Portugal Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2022 Rule of Law Report The rule of law situation in the European Union

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COMMISSION
Luxembourg, 13.7.2022
SWD(2022) 522 final
COMMISSION STAFF WORKING DOCUMENT
2022 Rule of Law Report
Country Chapter on the rule of law situation in Portugal
Accompanying the document
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions
2022 Rule of Law Report
The rule of law situation in the European Union
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1
ABSTRACT
The Government is undertaking a series of long-awaited measures to address efficiency
challenges in the Portuguese justice system, in particular in administrative and tax courts, and
the creation of rapid reaction teams in these courts is bringing positive results. The
finalisation of the legislative framework of the High Council for Administrative and Tax
Courts remains pending. The use of digital tools continues to be fostered, including in the
context of the Recovery and Resilience Plan. Measures to address the human resource deficit
are under way, although some concerns remain in particular regarding non-judicial staff and
public prosecutors. The Government and the High Council for the Judiciary continue to adopt
new measures to address issues regarding the allocation of cases in courts, and new initiatives
to support integrity in the justice system have been initiated. The envisaged reforms to the
criminal procedure have been undertaken, although there are debates on whether the new
rules on judicial impediments may have an adverse impact on the efficient treatment of
criminal cases.
The National Anti-Corruption Strategy for 2020-2024 is being implemented. The
operationalisation of the National Anti-Corruption Mechanism established in 2021 is
underway. Concerns regarding the lack of resources for the prevention, investigation and
prosecution of corruption-related cases remain, including in high-level cases. The legislative
framework to fight corruption has been reinforced with particular focus on increasing
effectiveness of criminal proceedings at the level of prosecution. Concerns on the effective
implementation of rules on conflicts of interests for high-level officials persist, though work
is underway to tackle this issue. New amendments to the system of asset declaration extend
and strengthen the obligations on political and senior public office holders. Efforts are
ongoing to address the fact that the Transparency Entity established in 2019 to monitor and
verify these declaratory obligations is still not operational. Legislation on the protection of
whistleblowers was adopted. Legislation on lobbying is still to be adopted by Parliament.
The media regulator plays a central role to monitor and support media freedom and pluralism,
despite challenges in financial resources. Legislation on transparency of media ownership and
institutional advertising remains solid. The public service media provider is independent,
although there are challenges regarding its resources. Support measures granted in the context
of the COVID-19 pandemic are reported to have had a positive effect on media, in particular
on local and regional media, but concerns remain regarding the precariousness of the
journalistic profession. The legislative framework for the protection of journalists remains
strong but new alerts have been raised following cyber-attacks to media groups. A legislative
provision on the protection against disinformation is under constitutional review.
New measures to improve the transparency of law-making and the quality of legislation are
being implemented. The Constitutional Court scrutinised decisions of the General Electoral
Board following the general elections. The emergency measures adopted in the context of the
COVID-19 pandemic continue to be scrutinised, and there are reflections on the need for a
new legal basis for adoption of emergency measures. The structure of the Office of the
Ombudsperson has been reformed, in order to better adapt to its mandate. Civil society space
continues to be considered as open, and civil society organisations continue to be involved in
Government initiatives. Nevertheless, they still face challenges related to access to financing
and isolated instances of hostility and pressure occur. Government and Parliament are leading
initiatives to promote a rule of law culture.
2
RECOMMENDATIONS
In addition to recalling the commitments made under the National Recovery and Resilience
Plan relating to certain aspects of the justice system, it is recommended to Portugal to:
 Continue the efforts to ensure adequate human resources of the justice system and to
improve its efficiency, in particular of Administrative and Tax Courts, including by
finalising the legislative framework for the functioning of the High Council for
Administrative and Tax Courts.
 Continue the efforts to strengthen the transparency of allocation of cases.
 Ensure sufficient resources for preventing, investigating and prosecuting corruption
including by ensuring the swift operationalisation of the New Anti-Corruption
Mechanism.
 Ensure the start of operations of the Transparency Entity in view of effective monitoring
and verification of asset declarations.
 Continue the reforms to improve the transparency of law-making, particularly on the
implementation of impact assessment tools.
3
I. JUSTICE SYSTEM
The Portuguese justice system comprises the Constitutional Court, the Supreme Court of
Justice and the ordinary courts of first and second instance, the Supreme Administrative
Court, and the administrative and tax courts of first and second instance, and the Court of
Auditors1
. The High Council for the Judiciary, the High Council for Administrative and Tax
Courts and the High Council for the Public Prosecution exercise disciplinary action over the
respective magistrates and are entrusted with relevant managerial functions. Furthermore,
they are competent to nominate, transfer and promote judges and prosecutors. Judges and
prosecutors are appointed by the respective Council, following an open competition and
according to the grades obtained in mandatory training courses at the Centre for Judicial
Studies. The public prosecution service is independent from the judicial power and operates
autonomously from the executive branch. It has its own governance system in which the
Prosecutor General’s Office is the highest body. Portugal participates in the European Public
Prosecutor’s Office (EPPO). The Bar Association is an independent legal entity governed by
public law and, in the exercise of its public powers, performs regulatory functions.
Independence
The level of perceived judicial independence in Portugal continues to be average among
the general public and low among companies. Overall, 47% of the general population and
39% of companies perceive the level of independence of courts and judges to be ‘fairly or
very good’ in 20222
. According to data in the 2022 EU Justice Scoreboard, the perceived
judicial independence among the general public is similar to the level of 2021 (48%) and
higher than in 2016 (33%). The perceived judicial independence among companies remains
at the same level as in 2021.
Measures were introduced to the system of allocation of cases in courts, in order to
further improve its transparency. As mentioned in the 2020 and 2021 Rule of Law
Reports3
, the system of allocation of judicial cases came under scrutiny following allegations
of interference with the random allocation of cases. In this context, new measures to reinforce
transparency continue to be implemented and came into practice in September 20214
. These
regulations, adopted by the High Council for the Judiciary, establish the principles, criteria,
requirements and procedures for situations of modification, reduction or suspension of the
distribution of cases in ordinary courts5
, and the criteria of transfer of judges, reallocation of
cases and accumulation of functions6
. Moreover, in August 2021, new legislation came into
force introducing control mechanisms applicable to the electronic allocation of cases, both in
1
Execution of criminal sentences courts, maritime courts, intellectual property courts, competition, regulation
and supervision courts, central instruction courts, arbitration tribunals and justices of the peace exist and
their number and jurisdiction is mainly established in their respective legal regimes (Law No. 62/2013, of 26
August and Law No. 78/2001, of 13 July).
2
Figures 50 and 52, 2022 EU Justice Scoreboard. The level of perceived judicial independence is categorised
as follows: very low (below 30% of respondents perceive judicial independence as fairly good and very
good); low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%).
3
2020 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 3; 2021 Rule of Law
Report, Country Chapter on the rule of law situation in Portugal, p. 2.
4
Information received from the High Council for the Judiciary in the context of the country visit to Portugal.
5
Regulation No. 269/2021, of 22 March. See also 2021 Rule of Law Report, Country Chapter on the rule of
law situation in Portugal, p. 2.
6
Regulation No 371/2021, of 3 May.
4
civil7
and administrative and tax courts8
. Among the control mechanisms introduced, it is
foreseen that the allocation will be done daily, under the control of a presiding judge and in
the presence of a prosecutor. In addition, the legal representatives of the parties have access
to the detailed minutes documenting the allocation acts9
. Although the new legislation still
needs implementing regulation10
, the new rules appear to be in line with European standards,
which provide that the allocation of cases should follow objective pre-established criteria11
,
and have been positively assessed by stakeholders12
.
Initiatives to support integrity in the justice system continue to be implemented. The
2021 Rule of Law Report took note that the High Council for the Judiciary had approved a
regulation on declaratory obligations13
. This regulation was, however, challenged by the
Judges Union before the Supreme Court of Justice, through an interim administrative
action14
. The Supreme Court of Justice upheld the action in part and ordered the High
Council for the Judiciary to issue rules to remedy the illegalities found15
. Consequently, the
obligation to issue a single declaration16
by ordinary court judges has been repealed, and the
High Council reported that all declarations made by judges would be devoid of effect and
removed from databases17
. The High Council has also prepared amendments to the regulation
which, following public consultation18
, were approved by the Council Plenary and came into
force on 8 April 202219
. Following amendments to the Law on declaratory obligations of
holders of political and public office, judges and public prosecutors are now also subject to
these declaratory obligations20
. The amendments also introduced the criminalisation of
intentional concealment of income or assets acquired in the exercise of public functions, in
line with a proposal presented by the Judges Union21
. Regarding the Code of Conduct of
Prosecutors, it has been adopted by the High Council for the Public Prosecution22
and entered
into force in April 202223
.
Reforms to the system of criminal courts and procedure have come into force, although
their impact on the effectiveness of criminal justice is being debated. Concerns regarding
7
Law No 55/2021, of 13 August.
8
Law No 56/2021, of 16 August.
9
Input from Portugal for the 2022 Rule of Law Report, p. 4.
10
Information received from the Ministry of Justice in the context of the country visit to Portugal.
11
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, para. 24, and
explanatory note 32.
12
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 9; Information
received from the High Council for the Judiciary in the context of the country visit to Portugal.
13
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 3.
14
Contribution from Magistrats Européens pour la Démocracie et les Libertés (MEDEL) – Portugal for the
2022 Rule of Law Report, p. 15.
15
Supreme Court of Justice, judgment of 14 July 2021, Case No. 15/21.5YFLSB-A.
16
Single declaration on income, assets, interests, incompatibilities and impediments.
17
Contribution from European Network of Councils for the Judiciary (ENCJ) for the 2022 Rule of Law
Report, p. 35.
18
High Council for the Judiciary, Public Notice No 220/2021, of 9 November 2021; Contribution from
European Network of Councils for the Judiciary (ENCJ) for the 2022 Rule of Law Report, p. 35.
19
Regulation No 346/2022, of 7 April 2022, on declaratory obligations of magistrates.
20
Law No 52/2019, of 31 July, approving the regime for the exercise of functions by holders of political and
public office, as amended by Law No. 4/2022, of 6 January (see in particular Art. 13).
21
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 35.
22
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 3.
23
Deliberation No. 473/2022, of 14 April.
5
the justice system’s capacity to efficiently treat complex criminal cases24
, commonly referred
to as ‘megaprocedures’, prompted debates regarding the judicial organisation of the
instruction courts at public, political and judicial level. Consequently, the Parliament, upon a
Government initiative, proceeded with the reorganisation of the Central Court of Criminal
Investigation25
. This court absorbed the competences of the Criminal Investigation Court of
Lisbon, which was formally disbanded. The Central Court of Criminal Investigation now
counts with a pool of nine judges, instead of two, which is seen as a positive development26
.
Moreover, in the context of the adoption of the legislation implementing the Anti-corruption
Strategy27
, amendments were introduced to the Code of Criminal Procedure, aiming at
simplifying and increasing efficiency in the processing of criminal cases. In particular, the
rules on the separation and connection of criminal cases were clarified28
, in order to avoid the
limitations identified in complex criminal cases29
. New grounds for judicial impediments
were also introduced, which determine that the judge who intervened in any act of the
investigative phase is barred from intervening in the subsequent phases of the procedure,
including the trial and the appeal30
. The new provision has been criticised, as it may lead to
significant delays in procedures, since the judges who rendered any type of decision during
the investigative phase will have to be replaced31
. The situation may be particularly critical in
single-judge courts, as these will have to be replaced by judges from courts from other
judicial districts. In order to minimise the adverse impact of the new provision, the High
Council for the Judiciary adopted orientations for the interpretations of the new rules on
impediments32
. The Government, after specifying that the provision on judicial impediments
did not reflect the wording in the Government’s initial legislative initiative33
, has adopted a
new legislative proposal, which has been presented to Parliament34
. The High Council for the
Judiciary has also announced it will present a proposal for an amendment to the provision35
.
The High Council for the Judiciary has been partially renewed. In 2021, in line with
constitutional provisions36
, two new members of the High Council for the Judiciary were
appointed by the President of the Republic, one of the new members being a judge of the
Supreme Court of Justice. Consequently, the High Council for the Judiciary is currently de
facto composed by a majority of judges, although not all of them were elected by their peers.
There are seven judges elected by their peers, in addition to one judge appointed ex officio
(the President of the Supreme Court) and one currently appointed by the President of
24
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 4.
25
Law No. 77/2021, of 23 November.
26
Information received from the Council for the Judiciary in the context of the country visit to Portugal;
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 31.
27
Law 94/2021, of 21 December. See Section II – Anti-corruption Framework.
28
Art. 11, Law 94/2021, amending Art. 24 of the Code of Criminal Procedure.
29
Information received from the Ministry of Justice in the context of the country visit to Portugal.
30
Article 40, Code of Criminal Procedure, as amended.
31
Information received from the High Council for the Judiciary and the Judges Union in the context of the
country visit to Portugal; Contribution from the European Association of Judges for the 2022 Rule of Law
Report, p. 34.
32
High Council for the Judiciary, Plenary Decision of 8 March 2022.
33
Information received from the Ministry of Justice in the context of the country visit to Portugal. Expresso
(2022), ‘Ministry of Justice distances itself from the law on judicial impediments’.
34
Legislative proposal No. 3/XV/1, submitted to Parliament on 12 April 2022 is currently being analysed by
the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees. The High Council for the
Judiciary and the Bar Association were consulted in the context of the legislative procedure.
35
Information received from the High Council for the Judiciary in the context of the country visit to Portugal.
36
Art. 218 (a) of the Constitution of the Portuguese Republic.
6
Republic37
. This is considered to be a positive development38
. It should be noted in this
context that it would be necessary to have two additional judges elected by their peers in
order to be fully in line with European standards39
. In addition to concerns expressed by
stakeholders regarding the Council’s composition40
, the Council of Europe’s Group of States
against Corruption (GRECO) has recommended the composition of the Council for the
Judiciary, as well as of the Council for the Administrative and Tax Courts to be amended in
line with these standards41
.
The finalisation of the legislative framework regulating the functioning of the High
Council for Administrative and Tax Courts is pending. Pursuant to the Statute of the
Administrative and Tax Courts42
, the structure and board of personnel of the High Council of
Administrative and Tax Courts should be defined in legislation complementing the provision
of the Statute. However, the legislation is still to be adopted and to enter into force since
2004. Consequently, the High Council continues to operate with the support of the human
resources of the Supreme Administrative Court, and of members of the Cabinet of the
President of the Supreme Court43
. The absence of this legal framework implies the non-
provision of the existence of a Vice-President and of a regime of full-time functions of the
37
The High Council for the Judiciary is composed of the President of the Supreme Court of Justice (who
chairs), two members appointed by the President of the Republic, seven members elected by Parliament, and
seven judges elected by their peers in accordance with the principle of proportional representation.
Currently, the High Council for the Judiciary is composed by eight lay members and nine members who are
judges. The High Council for Administrative and Tax Courts is composed of the President of the Supreme
Administrative Court (who chairs), two members appointed by the President of the Republic, four members
elected by the Parliament and four judges elected by their peers in accordance with the principle of
proportional representation. See also 2020 Rule of Law Report, Country Chapter on the rule of law situation
in Portugal, p. 2.
38
Contribution from the European Association of Judges for the 2022 Rule of Law Report, pp. 2 and 10.
39
According to Council of Europe recommendations, not less than half the members of Councils for the
Judiciary should be judges chosen by their peers from all levels of the judiciary and with respect for
pluralism inside the judiciary (Recommendation CM/Rec(2010)12 of the Committee of Ministers of the
Council of Europe, para. 27). See also CCJE, Opinion No. 24 (2021) on the evolution of the Councils for the
Judiciary and their role in independent and impartial judicial systems, para. 29; Opinion No. 10(2007) of the
Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the
Council of Europe on the Council for the Judiciary at the service of society, of 23 November 2007, paras. 15
ff.
40
Contribution from Magistrats Européens pour la Démocracie et les Libertés (MEDEL) – Portugal for the
2022 Rule of Law Report, p. 11.
41
GRECO Fourth Evaluation Round – Second Interim Compliance Report, recommendation vi, para. 45;
GRECO Fourth Evaluation Round – Interim Compliance Report, recommendation vi. para. 38. Portuguese
authorities have referred that a number of factors mitigate this non-majority of judges in the composition of
the Council for the Judiciary: i) the Council is always presided by a judge; ii) the President has legally a tie-
brake vote; iii) only the judges serve their term in a full-time capacity; iv) the current management of the
Council is delegated to the Vice-President (who is a Supreme Court Judge elected by all judges); v) the
members serve mandates with different lengths, which makes it very difficult to exercise a strong influence
in the Council’s composition (GRECO Fourth Evaluation Round – Interim Compliance Report,
recommendation vi. para. 42). Moreover, both the President and the Vice-President of the High Council for
the Judiciary, to whom direction and management powers emanating from the Plenary are delegated, are
judges; the direction and management of the High Council for the Judiciary’s services are also ensured by a
judge secretary, under the direction and supervision of the president, or vice-president (by delegation of the
president); additionally, the members of the High Council for the Judiciary are assisted by a Cabinet
composed of a chief of staff and four advisors, all of them judges; and finally, the inspectorate of the High
Council for the Judiciary’s inspection services is composed exclusively of judges.
42
Art. 79 (1), Law No. 13/2002, of 19 February.
43
High Council for the Administrative and Tax Courts, Annual Report 2020, p. 5.
7
members of the Council, as well as the absence of legal, technical and IT advisory cabinets,
thus limiting the capacity to exercise of the broad mandate of the Council44
. Currently, there
are no legislative initiatives pending regarding the missing additional regulation45
.
Lawyers raised concerns regarding the respect for their professional secrecy. The Bar
Association has raised concerns that new obligations to communicate to the tax authority
imposed on legal counsels46
could amount to a violation of professional secrecy47
. The Bar
Association submitted a complaint to the Ombudsperson48
, who challenged the law before the
Constitutional Court49
. The case is currently pending before the Constitutional Court50
.
Quality
The Government is addressing the shortage of human resources allocated to the justice
system, although challenges remain. The expenditure on law courts has been increasing51
.
Responding to concerns regarding the deficit of judges and prosecutors in the justice
system52
, the Government is proceeding to increase the number of magistrates. In this
context, 40 new judges of ordinary courts, 30 new judges of administrative and tax courts and
65 new prosecutors initiated professional training in September 2021, and a new recruitment
procedure for 40 judges of ordinary courts, 20 judges of administrative and tax courts and 65
new prosecutors was launched in August 202153
. The increase in judges of administrative and
tax courts is expected to be sufficient to attain the number established in the legal framework
for the first time since the creation of this jurisdiction54
, albeit some concerns remain55
as to
the deficit of over 200 prosecutors56
. Moreover, the first 23 members of advisory support
44
Information received from the High Council for Administrative and Tax Courts in the context of the country
visit to Portugal. See also High Council for the Administrative and Tax Courts, Annual Report 2020, p. 5.
According to European standards, Councils should have appropriate means to operate independently and
autonomously, should have its own premises, a secretariat, computing resources and should have its own
staff according to its needs (CCJE, Opinion No. 24 (2021) on the evolution of the Councils for the Judiciary
and their role in independent and impartial judicial systems, para. 29; Recommendation CM/Rec(2010)12 of
the Committee of Ministers of the Council of Europe, paras. 37 and 38).
45
Information received from the Ministry of Justice in the context of the country visit to Portugal.
46
Law No. 26/2020, of 21 July, transposing into national law Directive (EU) 2018/822 of 25 May 2018
amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of
taxation to reportable cross-border arrangements.
47
Contribution from the Council of Bars and Law Societies of Europe (CCBE) for the 2022 Rule of Law
Report, p. 56.
48
Bar Association, Press release of 20 September 2021. Contribution from the Council of Bars and Law
Societies of Europe (CCBE) for the 2022 Rule of Law Report, p. 56.
49
Pursuant to Art. 281 (1)(a) and (2)(d) of the Constitution of the Portuguese Republic. The referral, submitted
on 15 September 2021, can be consulted on https://www.provedor-
jus.pt/documentos/2021_09_15_Lei%2026%20de%202020_requerimento%20ao%20Tribunal%20Constituci
onal.pdf.
50
Information received from the Bar Association in the context of the country visit to Portugal.
51
Figures 34 and 35, 2022 EU Justice Scoreboard.
52
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 5.
53
Input from Portugal for the 2022 Rule of Law Report, p. 6. See also Figure 36, 2022 EU Justice Scoreboard.
54
Information received from the High Council for Administrative and Tax Courts in the context of the country
visit to Portugal.
55
Information received from the Cabinet of the Prosecutor General and from the Prosecutors Union in the
context of the country visit to Portugal; contribution from Magistrats Européens pour la Démocracie et les
Libertés (MEDEL) – Portugal for the 2022 Rule of Law Report, pp. 12 and 13.
56
Information received from the Cabinet of the Prosecutor General in the context of the country visit to
Portugal; Public communication presented in the Congress of Public Prosecution, Vilamoura (Portugal), 25
and 26 March 2022.
8
teams to aid judges took functions in September 2021, and a new recruitment procedure to fill
30 new vacancies was launched in October 202157
. However, these support teams continue to
exist only in first instance of ordinary courts despite calls for the need to extend them to
administrative and tax courts58
. Finally, challenges emerged for non-judicial staff in courts59
where there are currently over 1 000 vacancies in first instance ordinary courts that have not
been filled60
. In this context, it is to be noted that, according to European standards, a
sufficient number of judges and appropriately qualified support staff should be allocated to
the courts61
.
Investment in the digitalisation of the justice system continues. Digital tools continue to
be used in the justice system, with procedural rules allowing the use of digital technology in
courts for civil, commercial, administrative and criminal cases, although gaps remain62
.
Digital technology is being used by courts and prosecution services for a significant number
of procedural acts63
. Data show that there are also digital solutions available to initiate and
follow proceedings64
, and videoconference tools have been widely used during the COVID-
19 pandemic65
. New digital platforms with the aim to simplify the daily and managerial tasks
of magistrates are also being developed, and the High Councils are involved in their
implementation66
. Moreover, the national Recovery and Resilience Plan (RRP) includes a
component dedicated to the reform of the justice system, which focuses, among others, on the
improvement of the use of digital tools in the justice system67
. Portugal will also receive EU-
funded technical assistance to advance its user-driven justice modernisation agenda and the
development of key policy strategies68
.
Efficiency
The efficiency of the justice system continues to face challenges, especially in
Administrative and Tax Courts. The 2021 Rule of Law Report took note of improvements
regarding the efficiency of the justice system69
. However, the positive trend was interrupted,
57
Input from Portugal for the 2022 Rule of Law Report, p. 6. See also 2021 Rule of Law Report, Country
Chapter on the rule of law situation in Portugal, p. 5.
58
Information received from the High Council for the Administrative and Tax Courts in the context of the
country visit to Portugal; High Council for the Administrative and Tax Courts, Annual Report 2020, p. 8. It
is reported that the creation of advisory cabinets in Administrative and Tax Courts is dependent of the
adoption of the legislative framework regulating the functioning of the High Council for Administrative and
Tax Courts (see Section I – Justice System – Independence).
59
Information received from the High Council for the Judiciary, the Cabinet of the Prosecutor General and the
Union of Judicial Administrative Officials in the context of the country visit to Portugal; Público (2022),
‘Courts in risk of rupture for lack of clerks’.
60
Situation on 31 March 2022; Ministry of Justice, Staff map. See also CEPEJ (2020), Country profile
Portugal - Scoreboard (2019 data).
61
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, para. 35.
62
Figure 42, 2022 EU Justice Scoreboard.
63
Figure 43, 2022 EU Justice Scoreboard.
64
Figure 46, 2022 EU Justice Scoreboard.
65
Input from Portugal for the 2022 Rule of Law Report, p. 7.
66
Ministry of Justice, Press release of 4 February 2022.
67
Council implementing decision (10149/21) on the approval of the assessment of the recovery and resilience
plan for Portugal, 6 July 2021.
68
TSI Project ‘Modernisation of the justice sector in Portugal’. See also 2021 Rule of Law Report, Country
Chapter on the rule of law situation in Portugal, p. 6.
69
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 7.
9
with the disposition time for civil and commercial cases registering an increase in first70
and
third instance71
, and the rate of resolving decreasing for the third consecutive year and falling
below 100% in first instance72
. In administrative cases, the disposition time remains high,
having registered a slight increase in first instance73
, and further increasing in second
instance, reaching over 870 days74
. Although the number of pending administrative cases in
first instance remains high75
, a significant improvement is to be noted as regards the rate of
resolving, which is above 120%76
.
A working group has been created with the task of assessing and proposing strategies to
increase the efficiency of Administrative and Tax Courts. Stakeholders continue to raise
concerns regarding the efficiency of Administrative and Tax Courts77
. In order to reflect on a
strategy to overcome the challenges in Administrative and Tax Courts and increase their
efficiency, the Government has created a multidisciplinary working group. The working
group presented two interim reports78
, defining strategic objectives and proposing measures
to overcome the identified challenges regarding the efficiency of Administrative and Tax
Courts. These are grouped according to five strategic axes: legislative amendments, judicial
management, digital transformation, human resources, and optimisation of the functioning of
higher administrative and tax courts79
. The proposed measures have not yet been
implemented80
. The Portuguese Recovery and Resilience Plan also includes measures aimed
at increasing the efficiency of administrative and tax courts81
. According to European
standards, the efficiency of judicial systems is an essential condition for legal certainty and
public confidence in the rule of law82
.
Measures continue to be implemented to increase the efficiency of the justice system.
Portugal remains under enhanced supervision by the Committee of Ministers of the Council
of Europe for the excessive length of proceedings before both civil and administrative
jurisdictions83
. In this context, on 24 June 2021, the Government adopted a new updated and
consolidated action plan presenting measures to combat the excessive duration of
70
280 days in 2020, from 200 days in 2019. Figure 7, 2022 EU Justice Scoreboard.
71
126 days in 2020, from 104 days in 2019. Figure 8, 2022 EU Justice Scoreboard.
72
Figure 12, 2022 EU Justice Scoreboard.
73
Figure 9, 2022 EU Justice Scoreboard.
74
Figure 10, 2022 EU Justice Scoreboard.
75
Figure 16, 2022 EU Justice Scoreboard.
76
Figure 13, 2022 EU Justice Scoreboard.
77
Information received from the High Council for Administrative and Tax Courts and the Judges Union in the
context of the country visit to Portugal. See also contribution from Magistrats Européens pour la Démocracie
et les Libertés (MEDEL) – Portugal for the 2022 Rule of Law Report, pp. 13 and 14, and High Council for
the Administrative and Tax Courts, Annual Report 2020, p. 7.
78
Working group on Administrative and Tax Courts, First Interim Report of 23 November 2021 and Second
Interim Report of 21 February 2022. See also input from Portugal for the 2022 Rule of Law Report, p. 7.
79
Input from Portugal for the 2022 Rule of Law Report, p. 7, and Working Group on Administrative and Tax
Courts, Second Interim Report, p. 3.
80
Information received from the Ministry of Justice in the context of the country visit to Portugal.
81
In particular by setting up a legal framework promoting in and out-of-court settlements, the establishment of
the legal framework for voluntary administrative arbitrage, and the creation of specialised chambers in
superior courts (Annex to the Council Implementing Decision on the approval of the assessment of the
Recovery and Resilience Plan for Portugal, p. 161). The respective milestones should be met during the first
trimester of 2023.
82
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, para. 30.
83
Committee of Ministers, Supervision of the execution of the European Court’s judgments, case H46-20
Vicente Cardoso group v. Portugal (Application No. 30130/10).
10
proceedings84
. While welcoming the efforts undertaken by the authorities, the Committee of
Ministers reaffirmed its concerns regarding the worsening of the situation as regards the
length of administrative and tax proceedings85
. As described in the 2020 and 2021 Rule of
Law Reports86
, rapid reaction teams were created to deal with case backlogs in tax and
administrative courts. The latest data available show that these teams have already resolved
63% of the administrative cases and over 58% of the tax cases initially assigned87
. It is
expected that the teams will be able to resolve all the pending cases that had entered the
system before 2013 by the end of 202288
.
II. ANTI-CORRUPTION FRAMEWORK
The institutional anti-corruption framework in Portugal remains generally unchanged since
the publication of 2021 Rule of Law Report. The Central Department of Criminal
Investigation and Penal Action (DCIAP), established within the Public Prosecutors Service,
is in charge of the investigation and prosecution of serious offences, including corruption and
economic and financial crimes, and coordinates the investigations that are carried out by the
National Unit for Combating Corruption (UNCC), an investigative unit of the Criminal
Police89
. As regards the prevention of corruption, a National Anti-Corruption Mechanism was
established in 2021; it will contribute to improve the prevention capacity. The Council for the
Prevention of Corruption operates under the Court of Auditors. The Transparency Authority,
established in 2019, has competences in monitoring and verifying declarations of assets and
interests of political office-holders and high-ranking appointed officials but is not yet
operational, although efforts are being made in this regard.
The perception among experts and the business community is that the level of
corruption in the public sector remains relatively low. In the 2021 Corruption Perceptions
Index by Transparency International, Portugal scores 62/100 and ranks 9th
in the European
Union and 32nd
globally90
. This perception has been relatively stable over the past 5 years91
.
The 2022 Special Eurobarometer on Corruption shows that 90% of respondents consider
corruption widespread in their country (EU average 68%) and 44% of respondents feel
personally affected by corruption in their daily lives (EU average 24%)92
. As regards
businesses, 85% of companies consider that corruption is widespread (EU average 63%) and
84
Secretariat of the Committee of Ministers, DH-DD(2021)657: Communication from Portugal.
85
Committee of Ministers, Decision CM/Del/Dec(2021)1411/H46-25, of 16 September 2021.
86
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 8; 2020 Rule of Law
Report, Country Chapter on the rule of law situation in Portugal, p. 5.
87
High Council for the Administrative and Tax Courts, Annual Report 2020, pp. 76-77.
88
Information received in from the High Council for the Administrative and Tax Courts in the context of the
country visit to Portugal.
89
The UNCC is the specialized operational unit in charge of investigating corruption offences and related
crimes such as bribery or embezzlement of public funds, and has jurisdiction nationwide.
90
Transparency International (2022), Corruption Perceptions Index 2021, pp. 2-3. The level of perceived
corruption is categorised as follows: low (the perception among experts and business executives of public
sector corruption scores above 79); relatively low (scores between 79-60), relatively high (scores between
59-50), high (scores below 50).
91
In 2017 the score was 63, while, in 2021, the score is 62. The score significantly increases/decreases when it
changes more than five points; improves/deteriorates (changes between 4-5 points); is relatively stable
(changes from 1-3 points) in the last 5 years.
92
Special Eurobarometer 523 (2022). The Eurobarometer data on citizens’ corruption perception and
experience is updated every second year. The previous data set is the Special Eurobarometer 502 (2020).
11
55% consider that that corruption is a problem when doing business (EU average 34%)93
.
Furthermore, 32% of respondents find that there are enough successful prosecutions to deter
people from corrupt practices (EU average 34%)94
, while 16% of companies believe that
people and businesses caught for bribing a senior official are appropriately punished (EU
average 29%)95
.
The National Anti-Corruption Strategy for 2020-2024 is being implemented. A set of
legislative measures aimed at fighting and preventing corruption in both the public and
private sectors has been adopted in order to implement the Anti-Corruption Strategy96
. These
include instruments to fight financial crime, active and passive corruption, and support for
business compliance and whistleblower protection as well as a wide range of amended
legislation in the area of criminal law and criminal procedural law, company law and crimes
committed by public officials97
. This legislative package was approved by Parliament in 2021
and entered into force in March 2022. Its adoption opens the way to an implementation phase
which will also depend on the resources to be devoted to the institutions responsible98
.
New legislative measures envisage to increase the effectiveness of the judicial system in
handling corruption offences and to accelerate criminal proceedings at the level of
prosecution. An amendment to the criminal code extended the limitation period for crimes of
corruption, including high-level corruption, to 15 years99
. The practical implementation of
this measure needs a close monitoring given the reported concerns as regards prescription of
complex corruption cases due to delays in the investigation and prosecution phases100
. A set
of legal texts has been amended with a particular focus on suspension or reduction of
sentences, suspension of provisional proceedings, and determination of criminal liabilities,
93
Flash Eurobarometer 507 (2022). The Eurobarometer data on business attitudes towards corruption as is
updated every second year. The previous data set is the Flash Eurobarometer 482 (2019).
94
Special Eurobarometer 523 (2022).
95
Flash Eurobarometer 507 (2022).
96
Input from Portugal for the 2022 Rule of Law Report, pp. 9 and 12. For example, this legislative package
concerns amendments to the Penal Code, the Penal Procedure Code, the Commercial Companies Code, Law
No. 34/87, of 16 July 1987 (which establishes the responsibility of political office holders regime), Law No.
36/94, of 29 September 1994 (which establishes measures to combat corruption and economic and financial
crime), Law No. 50/2007, of 31 August 2007 (which establishes the criminal liability regime for behaviours
that may affect the truth, loyalty and correctness of the competition and its result in sporting activity), and
Law No. 20/2008, of 21 April 2008 (which establishes the criminal regime of corruption in the international
trade and the private sector).
97
Art. 58, Law No. 68/2019, of 27 August. These include crimes such as money laundering, corruption,
embezzlement and economic participation in business, harmful administration in an economic unit of the
public sector, fraud in obtaining or embezzling a subsidy, subsidy or credit, economic and financial offences
committed in an organised manner using computer technology, and economic and financial infringements of
an international or transnational dimension.
98
The strategy acknowledges the need to identify and analyse the reasons for delays in complex cases in order
to better allocate resources. Information received by the Ministry of Justice in the context of the country visit
to Portugal.
99
Art. 118(1) (a) of the Criminal Code extends the limitation period of 15 years to the offences provided for
Art. 20, Art. 23e(1) and Arts. 26 and 27 of Law No 34/87 of 16 July (embezzlement, economic involvement
in business, abuse of power and breach of secrecy); Arts. 10-A and 12 of Law No 50/2007 of 31 August
(undue offer or receipt of an advantage); Arts. 36 and 37 of the Military Justice Code (passive corruption for
the commission of illegal acts and active corruption); In Art. 299 of the Criminal Code, where the purpose or
activity of the criminal association is directed towards the commission of one or more crimes for which a
period of 15 years is exceptionally provided for; crime of maladministration provided for in Art. 11 of Law
No 34/87 of 16 July. Input from Portugal to the 2022 Rule of Law Report, p. 10.
100
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 10.
12
including for legal persons101
. In addition, new provisions bring clarity to the concept of
political office holder in the context of criminal law and introduce a specific prohibition to
perform official duties to political office holders who commit a crime, including
corruption102
. A new law103
facilitates the use of financial and other information (such as
bank account information) by competent authorities for the purposes of preventing, detecting,
investigating or prosecuting serious criminal offences.
The lack of resources for investigation and prosecution of corruption-related offences
remains a concern104. Stakeholders report that the lack of resources at the level of the police
and prosecution services is an obstacle to prosecution of corruption-related cases105
. The lack
of expertise and trainings, low levels of digitalisation and difficult access to databases as well
as lack of financial independence are also reported as constraints. As reported in 2021,
challenges remain concerning the treatment of high-level corruption cases106
. The lack of
statutory financial autonomy was publicly raised by the Prosecutor General as an obstacle to
the overall independence of the Prosecution Office107
. Both the Department of Investigation
and Penal Action (DIAP) and the Central Department of Investigation and Penal Action
(DCIAP), established within the Public Prosecutor’s Service, also raise the issue of
resources108
. The lack of resources is also reported to have an impact on the quality of the
investigations and prosecutions of corruption-related cases, causing significant delays,
especially in complex and high-level corruption cases109
. The problem persists despite a
slight improvement in the DCIAP’s resources in 2021 – the Central Investigation and
Prosecution Department (DCIAP) has an overall table of 36 State Prosecutors specialising in
the investigation of the organized crime, including corruption and related crimes. The
Research departments and Criminal Proceedings (DIAP) in Porto, Coimbra, Lisbon and
Évora counts with 37 magistrates. The UNCC has 12 Investigation Units with a staff of 97
criminal investigators. However, in addition to the investigators assigned to the UNCC, the
101
Input from Portugal for the 2022 Rule of Law Report, p. 13. Law No 34/87, of 16 July, determining the new
Measures for crimes of responsibility of political office holders bring clarity to the concept of political office
holder for the purpose of criminal law (Arts. 1, 4, 5, 16, 17, 18, 19a, 23, 27, 28, 34, 35, 37 and 39 of Law No
34/87 of 16 July are replaced); Law No 36/94 introducing new measures to combat economic and financial
crime, including corruption, embezzlement, undue influence and economic participation in business.
Amendments determine a responsible authority to carry preventive actions within the prosecutor’s office and
criminal police unit including the suspension of proceedings and establishment of injunctions with aim to
mitigate penalties (Arts. 1, 2, 8 and 9 of Law No 36/94 of 29 September are replaced); Law No 20/2008 of
21 April 2008 establishing the new criminal regime for corruption in international trade and the private
sector; Law No 50/2007 of 31 August 2007 establishing a new system of criminal liability for conduct liable
to affect the truth, loyalty and correctness of competition and its outcome in sporting activity (Arts. 10 and
13 of Law No 50/2007 of 31 August are replaced); Changes in the legislation on corruption-foreign bribery
(2018): Arts. 5 and 10 were replaced.
102
Art. 27-A, Law No. 34/87, of 16 July, establishing a prohibition to hold public office for a period from 2 up
to 10 years.
103
Law No. 54/2021 of 13 August 2022. Input from Portugal to the 2022 Rule of Law Report, p. 13.
104
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 9.
105
Information received from Transparency International, Office of the Prosecutor General, Judges Union, and
Prosecutors Union in the context of the country visit to Portugal.
106
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, pp. 9-10.
107
Public communication presented in the Congress of Public Prosecution, Vilamoura (Portugal), 25 and 26
March 2022.
108
Público (2021), ‘DCIAP director pressures Government and criticises lack of resources’. Public
communication presented in the Congress of Public Prosecution, Vilamoura (Portugal), 25 and 26 March
2022.
109
Information received from the Office of the Prosecutor General in the context of the country visit to
Portugal.
13
Criminal Police has 193 additional staff spread across the national territory. With a view to
strengthening Justice Police resources, a course for 120 inspectors was completed in 2021; a
course for 100 Inspectors will start in 2022 and a competition will take place for a further 70
Inspectors, preventing a gradual increase in human resources in UNCC110
. There are also
concerns referring to the resources of the Inspectorate-General of Finance (IGF). The IGF has
faced a progressive decrease of resources (from 2015 to 2021 there has been a 21.5%
reduction of staff and there was a 1.1% reduction of budget from 2020 to 2021)111
, which is
becoming challenging, especially in view of new additional activities foreseen under the
National Anti-Corruption Mechanism112
.
The general regime for the prevention of corruption has been established and work is
ongoing for the implementation of the 2021 National Anti-Corruption Mechanism,
which is expected to be operational in the second half of 2022. In the context of the
implementation of the National Anti-Corruption Strategy113
, new legislation has been adopted
which creates a National Anti-Corruption Mechanism and establishes the general regime for
the prevention of corruption and conflicts of interest114
. This general regime imposes on
private companies, public undertakings and services forming part of the direct and indirect
administration of the State115
, with 50 or more employees, the obligation to adopt specific
anti-corruption tools116
. At the same time, it remains a concern that the scope of the regime
will be too narrow in practice considering the overall number of entities under 50
employees117
, including Government bodies which will not be bound by the new rules. Once
operational, the Mechanism will function as an independent body with initiating, controlling
and sanctioning powers. It will also carry the task of implementing the preventive dimension
of the National Anti-Corruption Strategy118
. Overall, the need for more specialised personnel
and robust monitoring structures remains a challenge119
. While the operationalisation of the
110
Input from Portugal for the 2022 Rule of Law Report, p. 9. In the State Budget for 2022 there are also funds
allocated to: i) strengthening human resources to fight corruption, fraud and economic-financial crime, in
particular in the Unit of Technical Assistance of the Attorney General's Office and in the Forensic Unit for
Finance and Accounting, the Anti-Corruption Unit and the National Criminal Police Cybercrime and
Technological Crime Unit; and ii) strengthening the training of magistrates and other stakeholders in the
criminal investigation in the field of prevention and combat to corruption, fraud and economic and financial
crime.
111
Information received from IGF in the context of the country visit to Portugal.
112
Information received from IGF in the context of the country visit to Portugal.
113
National Anti-Corruption Strategy for 2020-2024.
114
Decree-Law No. 109-E/2021, of 9 December.
115
These entities include private companies (with the exception of micro and small enterprises) the State,
autonomous regions (i.e., Azores and Madeira), local authorities and other legal persons of public law
(National anti-Corruption strategy 2020-2024, p. 41).
116
Those are: risk prevention programmes, codes of conduct, reporting channels and appropriate training
programmes for the prevention of corruption and related offences. In particular, the regime obliges entities to
adopt codes of conduct, adequate reporting channels, internal control systems and training programmes
focused on risk prevention. It also introduces fines for adminitrative offences up to EUR 44 891 81 for legal
person and EUR 3 740 98 for natural persons for non-compliance with the regime.
117
According to information provided by Statista the number of micro and small (<50) enterprises in PT is the
larger: up to 902 856, compared to 5 688 Medium sized in 2021. Statista (2021), SMEs in Portugal 2021.
118
The Mechanism will be an independent body which will integrate the Council for Prevention of Corruption
and continue the Council’s task of ensuring the effectiveness of policies to prevent corruption with the
additional power to sanction. The Mechanism is supposed to cooperate and support anti-corruption
authorities including the Prosecutor’s Office, Criminal Police and the Court of Auditors. The tasks of the
Mechanism will be carried by the Board composed of specialised officials. The activities of the Mechanism
will be monitored by the Court of Auditors. Input from Portugal to the 2022 Rule of Law Report, p. 9.
119
Information received from the Ministry of Justice in the context of the country visit to Portugal.
14
Mechanism is ongoing, the sanctioning regime under the general regime of prevention of
corruption will only come into force by June 2023120
.
Concerns remain regarding the monitoring of rules on conflicts of interests for high-
level officials. While integrity rules are in place for Government officials121
and Members of
Parliament122
, concerns regarding their effective implementation remain unaddressed123
:
GRECO called for adequate supervisory mechanisms, including sanctions for improper acts,
which are not envisaged in the Code of Conduct for the Members of Parliament124
. The
monitoring work of the Parliamentary Committee on Transparency125
and Members’ Statute
continues, while the conclusions of the assessment of the effectiveness of the conflict
prevention system are not yet available126
. As regards the rules on ‘revolving doors’, there
has been no progress in addressing the issue of monitoring breaches of post-employment
restrictions, which creates concerns as to their enforcement127
.
New amendments to the system of asset declaration extend and strengthen declaratory
obligations for political and senior public office holders, although the verification
authority is not yet operational. Complementing the existing requirement128
to submit a
single consolidated declaration of interest and assets, new regulations foresee penalties for
unjustified enrichment129
. According to the law, as of 10 December 2021, declarations should
include a detailed description of any asset advantage, reduction in liabilities or increase in
future assets when the value exceeds 50 times the national minimum wage130
. The
Transparency Entity131
established in 2019, will be responsible, once operational, for
monitoring and verifying the asset declarations of political and senior public officials132
. It
was initially envisaged to be set up in 2020, but it is not yet operational, and there is no
timeline for its entry into function133
. Efforts are currently being made to set up a digital
120
Art. 28(1), Decree-Law No. 109-E/2021, of 9 December. Information received from the Ministry of Justice
in the context of the country visit to Portugal.
121
Law 52/2019, of 31 July Since 2019, the system of incompatibilities for high-ranked officials was reviewed
to broaden the scope of incompatible public functions to public undertakings and any other company where
the State is shareholder - Resolution of the Council of Ministers No. 184/2019.
122
Law No. 7/93, of 1 March, Art. 20(1). Parliament, Resolution of the No. 210/2019.
123
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, pp. 10 and 11.
124
GRECO Fourth Evaluation Round - Second Interim Compliance Report, p. 6.
125
In the context of the country visit to Portugal, the Commission was informed by the Services of the
Assembly of the Republic that the Committee has issued a report on the application of the Code and so far,
no breach of the Code has been verified. The report should be published in the website:
https://www.parlamento.pt/sites/COM/XIVLeg/14CTED/GTACC/Paginas/Composicao.aspx.
126
Information received from the Ministry of Justice in the context of the country visit to Portugal.
127
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 12.
128
Art. 1, Law No. 69/2020, of 9 November. Additionally, Law No. 69/2020, of 9 November, established
public access to the information contained in the register of interests within the ‘Declaração Única’,
including posts, functions, and activities held in accumulation with the mandate, as well as those held in the
3 previous years of high public and political officials.
129
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, pp. 11-12; Law No.
4/2022, of 6 January 2022.
130
New sanctions incorporate the penalties of imprisonment of up to 5 years for failing to submit a declaration,
omitting income and properties, including any unjustified enrichment (Input from Portugal for the 2022 Rule
of Law Report, p. 14).
131
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 12.
132
Art. 5 of Organic Law No. 4/2019, of 13 September, provides that until the establishment of the Entity for
Transparency, single declarations of income, assets and interests continue to be filed with the Constitutional
Court and scrutinised under the previous regime.
133
Information received from the Constitutional Court in the context of the country visit to Portugal.
15
platform to handle asset declarations134
. The issue of the facilities where the headquaters of
the Entity should be installed has not yet been completely resolved, although the Government
has provided a building for the headquarters of the Entity for Transparency, and the
procedures for the necessary renovation works are advancing135
.
While legislation on lobbying remains to be adopted, the Government is implementing a
system of ‘legislative footprint’ to monitor transparency in decision-making processes.
There was no agreement reached on the proposed lobbying legislation that was under
discussion in Parliament136
during the legislature that was interrupted in December 2021.
However, the Government has approved a resolution aimed at enhancing the transparency of
the decision-making procedure, by implementing a system of ‘legislative footprint’137
. This
initiative will enable citizens to monitor interactions between decision-makers and interest
representatives throughout the legislative procedures due to the mandatory registration of
these interactions including from the drafting of laws and policies to their final approval138
. It
is expected to bring transparency to the decision-making process, as it requires interest
representatives to be registered in order to take part in any legislative process. The
Government expects that bringing decision-makers closer to citizens and giving transparency
to the origin and nature of policies is expected to be a positive step towards the regulation of
lobbying. GRECO has stressed the need to clarify the scope of permissible contacts between
members of Parliament and third party interests, which remains to be addressed139
. However,
the scope of the contacts allowed between Members of the Parliament and third interest
parties is defined by the Portuguese Constitution140
, imposing on the Members of the
Parliament a set of duties in the exercise of their mandate141
.
New legislation on the protection of whistleblowers was adopted. The new rules142
were
introduced on 20 December 2021 with the aim to align national legislation with the
Whistleblowers Directive143
and further improve the legal framework144
. Overall, in 2020,
there was a slight decrease of whistleblowers complaints (18.3 % less than in 2019 and
35.2 % less than in 2018)145
. The analysis of the complaints submitted through the application
134
Information received from the Constitutional Court in the context of the country visit to Portugal.
135
Information received from Portugal as a follow-up to the country visit.
136
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 12.
137
Council of Ministers Resolution No. 143/2021, of 3 November.
138
See also Section IV.
139
GRECO Fourth Evaluation Round - Second Interim Compliance Report, p. 4. It is the competence of the
Committee for the Transparency and Statute of the Members of Parliament (CTED) to ensure compliance
with the rules mentioned, and to this end, it may carry out inquiries into facts which may constitute serious
irregularities committed in breach of the duties of the Members of the Parliament, either at the request of the
Members of the Parliament ex-officio or by determination of the President of the Parliament (please see
article 27-A(j) of the Statute of the Members of Parliament).
140
Arts. 155 and 159. See also Art. 14 of the Statute of the Members of Parliament and Arts. 3 to 9 of the Code
of Conduct of Members of Parliament.
141
Art. 14(2) of the Statute of the Members of Parliament.
142
Law No. 93/2021, of 20 December.
143
Directive (EU) 2019/1937 on the protection of persons who report breaches of Union Law.
144
The rules introduce measures on prohibition of retaliation as well as establishment of specific reporting
channels and the establishment of procedures for the analysis of reports that ensure the confidentiality and
security of information. Also, further enshrining measures to protect and support whistleblowers were
introduced.
145
In 2020, the number of complaints received, including through this system, was 1.607, of which 603 were
submitted by identified complainants (37.5 %). Information received from the Ministry of Justice in the
context of the country visit to Portugal.
16
resulted in the opening of 232 investigations and 18 preventive investigations, with 507
complaints being sent to other bodies and 785 being closed146
.
Several institutions continued to monitor corruption risks related to the measures
adopted in the context of the COVID-19 pandemic. The Court of Audit monitored the
implementation of the emergency law measures147
. As a result, new reports were issued148
. It
is not yet clear if the Council for the Prevention of Corruption recommendation on the
Prevention of Risks of Corruption and Related Infringements149
was followed in practice by
all the public bodies and entities intervening in the management or control of public money
and other public values to which it was addressed150
. The InspectorateGeneral of Finance
issued an audit report about the measures taken to support the media sector during the
COVID 19 pandemic, and published an e-book151
on best practices and lowering the risks
linked to corruption in the area of public procurement which is overall regarded as a high-risk
area152
.
III. MEDIA PLURALISM AND MEDIA FREEDOM
The fundamental principles underpinning media freedom and pluralism are anchored in the
Portuguese Constitution153
and a comprehensive legal framework exists to protect journalists
in the exercise of their profession154
. The establishment of an independent regulatory body is
also mandated in the Constitution155
. The revised Audiovisual Media Services Directive
(AVMSD) was transposed in 2020156
. No major legislative developments have taken place
since the publication of the 2021 Rule of Law Report.
The Regulatory Authority for the Media continues to play a central role as regards
media freedom and pluralism but faces some challenges regarding resources. The
regulatory authority (Entidade Reguladora para a Comunicação Social, ERC) is fully
independent157
. It monitors all entities that pursue media activities in Portugal158
and ensures
146
In 2020, the number of investigations opened on the basis of complaints submitted in the application
corresponded to 14.4 % of the complaints registered and the preventive investigations amounted to around
1.1 %. These percentages for investigations show a slight increase compared to those in 2018 and 2019
(12.7 %), confirming the downward trend in the number of preventive investigations initiated (1.8 % in 2018
and 1.6 %) in 2019. In 2019, 249 investigations and 31 preventive investigations were opened, while 787
complaints were sent to other entities and 896 were closed (information received from the Ministry of Justice
in the context of the country visit to Portugal). The data refers to numbers relating to the channel for
complaints set up by the Public Prosecutor’s Office.
147
Information received from the Court of Audit in the context of the country visit to Portugal.
148
Court of Audit, Risks in the use of public resources in the management of emergencies (COVID-19); In
February 2022 the Court of Audits published a report about fraud and non-compliance which highlights
important limitations in monitoring.
149
Council for the Prevention of Corruption (2020), Recommendation - Prevention of Corruption Risks and
Related Infringements as part of the response measures to the pandemic outbreak of COVID-19.
150
The recommendation highlights the need for all decision-makers and public officials to maintain the highest
levels of transparency, ethics and integrity, and asked for the adoption of measures to prevent and mitigate
corruption risks in the exercise of their public activities.
151
IGF, Autoridade de Auditoria, Gestão dos Riscos na Contratação Pública.
152
Information received from the IGF in the context of the country visit to Portugal.
153
Arts. 37 and 38, Constitution of the Portuguese Republic.
154
Portugal ranks 7th in the 2022 Reporters without Borders World Press Freedom Index compared to 9th in the
previous year.
155
Art. 39, Constitution of the Portuguese Republic.
156
Law 74/2020, of 19 November.
157
2022 Media Pluralism Monitor, country report for Portugal, pp. 6-7.
17
a series of essential tasks as foreseen in its constitutional mandate159
. During 2021, it received
EUR 4 000 000 (in arrears for the 2015-2019 contributions due by the telecom regulator) and
has opened the recruitment for three new posts. However, given the extent and importance of
its mission, there are concerns that the ERC may be underfunded160
.
The comprehensive legislative framework regulating the transparency of media
ownership has been further extended. A solid legal framework is in place regarding the
transparency of ownership across all media markets, including online. The Constitution
requires this transparency and mandates ERC to monitor it in implementation of the specific
law that regulates this matter161
. In January 2022, regulatory provisions entered into force,
extending to on-demand services and video sharing platforms the requirement to register a set
of information with the Regulatory Authority for the Media. Consequently, legislation on
media transparency will be applicable to on-demand services providers162
. The 2022 Media
Pluralism Monitor report for Portugal (MPM 2022) continues to register low risk in
transparency of media ownership163
. It however notes some exceptions where the law is not
always effective164
. Some entities show low levels of transparency, and it is difficult to
identify whether these cases are sanctioned in practice165
. Moreover, the Transparency
Portal166
does not always provide the required information on some companies167
.
Access to information and documents held by public authorities is safeguarded through
specific legislation. This legislation aims at facilitating the performance of journalistic
functions. While the Constitution guarantees the right of journalists to access sources of
information168
, rules of general application169
regulate access to administrative documents
and administrative information. Non-respect of the right of access to administrative
documents can be appealed to the Administrative and Tax Courts. A complaint may also be
filed before the independent administrative Commission for Access to Administrative
Documents, but opinions on complaints are not binding on public institutions.
The public service media provider is independent, but there are challenges regarding its
resources. Rádio e Televisão de Portugal (RTP), the public service media provider, is
established by law170
. Its internal governance organs are the Independent General Council
(IGC) and the Management Board (MB). The IGC is a general overseeing body and is mainly
responsible for choosing the MB and monitoring the adequacy of its strategic project. It is
158
Art. 6, Law No. 53/2005 (Statutes of ERC). See also 2020 Rule of Law Report, Country Chapter on the rule
of law situation in Portugal, p. 9.
159
Art. 39, Constitution of the Portuguese Republic.
160
2022 Media Pluralism Monitor, country report for Portugal, pp. 6, 7 and 21.
161
Law No. 78/2015, of 29 July.
162
Regulatory Decree 7/2021, of 6 December.
163
2022 Media Pluralism Monitor, country report for Portugal, pp. 8 and 12.
164
2022 Media Pluralism Monitor, country report for Portugal, pp. 12-13.
165
2022 Media Pluralism Monitor, country report for Portugal, p. 13.
166
The Transparency Portal was created by ERC on December 2019 in order to aggregate all the information on
media ownership and make it available to the public.
167
2022 Media Pluralism Monitor, country report for Portugal, p. 13.
168
Article 38(2)(b), Constitution of the Portuguese Republic. The Statute of Journalists, approved by Law No.
1/99, of 13 January, contains provisions aimed at ensuring this right (Art. 8).
169
Law No 26/2016, of 22 August.
170
Law No. 8/2007, of 14 February.
18
composed of six members171
nominated for 6 years, and it does not have management
responsibilities. The MB is composed of three members nominated by the IGC, taking office
after being heard by the Parliament. The law establishes the conditions under which the
members of the IGC and the MB could be deposed. Additionally, the law establishes a 30-
member Opinion Council (OC), whose members are elected for a four-year period, which is
renewable. 10 of them are nominated by the Parliament, and the remaining 20 by a variety of
civil society organisations. The OC is meant to act as a link for RTP to the interests of
Portuguese society and to monitor that it fulfils its obligations as a public service. RTP is
financed by an audiovisual contribution tax (82%), and publicity and sales of programmes
(18%)172
. However, given that RTP offers a wide and diverse spread of services and has plans
for some new channels, concerns were voiced regarding insufficient financing173
.
There are concerns regarding the precariousness of the journalistic profession. Despite
some improvement compared to 2020, the general situation of professionals in the Portuguese
media is still relatively challenging, with the small advertising market not being enough to
support all operators in the market174
. This translates into downward pressure on salaries and
indirectly affects editorial freedom for journalists, except in the public service media175
.
Regarding the economic support measures in the framework of the COVID-19 pandemic,
these are reported to have had a positive effect on media, as stakeholders noted that these
exceptional support measures taken by the Government (advance purchase of an institutional
advertising) had the welcome effect that, for the first time, institutional advertising reached
local and regional media significantly (25%)176
.
Standards for the protection of journalists remain high. As mentioned in previous
editions of the Rule of Law Report177
, the Criminal Code, in particular following the
amendments introduced in 2018178
, gives journalists protection in the exercise of their
profession. As in previous years, the MPM 2022 considers this an area of low risk179
. The
European Court of Human Rights found in January 2022180
that the 2012 conviction of the
journalist Freitas Rangel for statements about associations of judges and prosecutors
breached the European Convention181
. Since 2021 Rule of Law Report, the Council of
Europe Platform to promote the protection of journalism and safety of journalists has
171
Two nominated by the Government, two nominated by the Opinion Council (see below) and two co-opted
by the first four.
172
Information received from RTP in the context of the country visit to Portugal; RTP, 2020 Financial
Statement Report, p. 153.
173
Information received from RTP in the context of the country visit to Portugal.
174
2022 Media Pluralism Monitor, country report for Portugal, p. 6.
175
Information received from the Journalists’ Professional License Committee and the Journalists Union in the
context of the country visit to Portugal.
176
Information received from the Journalists’ Professional License Committee and the Journalists Union in the
context of the country visit to Portugal.
177
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 14; 2020 Rule of Law
Report, Country Chapter on the rule of law situation in Portugal, p. 11.
178
Which include journalists in the categories of professions granted enhanced protection, and qualified
aggressions against journalists as ‘public crimes’.
179
2022 Media Pluralism Monitor, country report for Portugal, pp. 7, 9 and 21.
180
Judgment of the European Court of Human Rights of 11 January 2022, Freitas Rangel v. Portugal,
78873/13.
181
The Court found in particular that the fine and the damages had been wholly disproportionate and had to
have had a chilling effect on political discussion. The domestic courts had failed to give adequate reasoning
for such interference with the applicant’s free speech rights, which had not been necessary in a democratic
society.
19
registered two alerts for Portugal182
. The first one concerns a court proceeding presented by
an Angolan politician, seeking important financial compensation for his name appearing in
the Portuguese edition of a book on corruption written by a British journalist. The Portuguese
Government has duly replied to the alert183
. The second concerns the 2 January 2022 cyber-
attacks on the websites of the newspaper Expresso and all the channels of the SIC TV
station184
. The attackers demanded a ransom to be paid. The OSCE Representative on
Freedom of the Media expressed concern about these acts, stressing that they constituted a
clear violation of the right to freedom of expression and that the spreading false information
illegally through these channels has a clear intent to use the reach of media to cause chaos185
.
The incident is being investigated by national law enforcement and Portugal’s National
Cybersecurity Centre. Weeks later, similar attacks took place against another media group
(Cofina). The Journalist Union, the Journalists’ Professional License Committee and ERC
condemned these attacks and urged the authorities to investigate them186
.
A legislative provision on the protection against disinformation is under constitutional
review. Parliament adopted in May 2021 the Portuguese Charter of Human Rights in the
Digital Age187
. Its Article 6188
, providing for the possibility to create registered fact-checking
structures overseeing registered media outlets, received criticism and opposition from
stakeholders, for its possible impact on the rights to the freedom of expression and
information189
. This led the President of the Republic to request the assessment of the
constitutionality of that rule for violation of the right to freedom of expression190
. The case is
currently pending before the Constitutional Court.
IV. OTHER INSTITUTIONAL ISSUES RELATED TO CHECKS AND BALANCES
Portugal is a representative democratic republic with a directly elected President and a
unicameral Parliament. The President of the Republic, elected by direct popular vote, has
significant constitutional and political powers, including the competence to dissolve
Parliament191
. The Prime Minister has the competences to direct the Government’s general
policy and to coordinate and orient the actions of all the Ministers192
. Parliament and
Government share legislative competence. The Members of Parliament and the Parliamentary
Groups, the Government, the Regional Assemblies and a group of at least 20 000 citizens
have the right of legislative initiative. The Constitutional Court, which is part of the judiciary,
is competent to review the constitutionality of laws and to control the constitutionality of the
182
Council of Europe, Platform to promote the protection of journalism and safety of journalists, Portugal.
183
Alert No. 192/2021, Council of Europe, Platform to promote the protection of journalism and safety of
journalists, Portugal.
184
Alert No. 40/2022, Council of Europe, Platform to promote the protection of journalism and safety of
journalists, Portugal.
185
OSCE Representative on Freedom of the Media, Press Release of 13 January 2022.
186
Journalists Union, Press releases of 3 January 2022 and 10 February 2022; Journalists’ Professional License
Committee, Press release of 12 January 2022; ERC, Press release of 12 January 2022.
187
Law No. 27/2021.
188
In particular, Art. 6(6), providing for the creation of fact-checking structures by duly registered media and
encouraging the award of quality seals by trusted entities endorsing with public utility status.
189
Journalists Union, Press release of 9 June 2021; Journalists’ Professional License Committee, Complaint to
the President of the Republic and to the Ombudsperson of 30 June 2021.
190
President of the Republic, Press release of 29 July 2021.
191
Art. 133(e), Constitution of the Portuguese Republic.
192
Art. 201, Constitution of the Portuguese Republic.
20
omission to adopt the necessary legislative measures to execute constitutional norms193
; it
also has other important competences, including on electoral matters and control of asset,
interest disclosure and incompatibility declarations194
. The independent Ombudsperson is
tasked with safeguarding and promoting the freedoms, rights and guarantees of citizens, and
has the right to challenge the constitutionality of laws.
Parliament and Government are implementing measures to improve the quality of
legislation and increase the transparency of the legislative procedure. Following the
approval of the new Rules of Procedure of Parliament195
, in July 2021, the Conference of
Leaders196
adopted guidelines on the interpretation of some of these new rules. By setting
clear timelines for the debates on legislative proposals, and clarifying the deadlines
applicable to fast-track procedures197
, these rules aim at reinforcing the quality of
parliamentary legislation and the procedure’s transparency, in particular by allowing a better
knowledge of the context of the bills prior to their discussion198
. Regarding the legislative
power entrusted to the executive, the national anti-corruption strategy envisages measures to
improve the transparency of the legislative procedure199
. In this context, the Council of
Ministers approved a resolution200
that implements a system of ‘legislative footprint’ within
the governmental legislative procedure, establishing the mandatory recording of any
intervention of external entities in the legislative process, from the stage of conception and
drafting of the legislative act until its final approval201
. The resolution also approved a pilot-
project which will allow the follow-up by citizens of all the interactions throughout the
legislative processes initiated by the Government202
. Although there are also efforts to
improve the use of both ex ante203
and ex post Regulatory Impact Assessments (RIAs), ex
post RIAs remain rare, with only two currently underway204
. Public consultations are not
envisaged as part of RIA procedure. Under a project financed by the EU through the
Technical Support Instrument, the use of artificial intelligence in performing RIAs will be
explored205
. The quality of law-making is an important factor for investor confidence and a
193
Art. 223(1), Constitution of the Portuguese Republic.
194
Art. 223(2)(c), (g), (h), Constitution of the Portuguese Republic; Arts. 11-A and 106 to 110, Law on the
Constitutional Court.
195
2021 Rule of Law Report, Country Chapter on the rule of law situation in Portugal, p. 16.
196
Organ composed by the President of Parliament and the presidents of parliamentary groups.
197
In particular, the guidelines clarify that the responsible parliamentary committee shall pass its reasoned
opinion and send it to the President within a time limit of 30 days from the date of the admissibility order,
and bills shall only be discussed and put to the vote on the general principles in the plenary session after the
time limit of 30 days following the date of the admissibility order and not the date of their submission as a
bill. Moreover, it determines that proposers of the bill in fast-track procedures may only replace the text of a
bill up to 48 hours before its discussion on the general principles, and the replacement must be notified
immediately to parliamentary groups and other members of Parliament. After the discussion, the text can no
longer be replaced.
198
Information received from the Services of the Assembly of the Republic in the context of the country visit to
Portugal.
199
See Section II – Anti-corruption framework.
200
Resolution of the Council of Ministers No. 143/2021, of 3 November.
201
Input from Portugal for the 2022 Rule of Law Report, pp. 14 and 26.
202
Input from Portugal for the 2022 Rule of Law Report, p. 14.
203
According to the regime on the functioning and organisation of the current Government, draft Government
legislative acts should be subject to a prior assessment of legislative impact, seeking to estimate the variation
in benefits and charges imposed on the life of persons and activities of enterprises, in particular small and
medium-sized enterprises, as well as other non-economic impacts (Art. 53(1), Decree-Law No. 32/2022, of 9
May).
204
Information received from UTAIL in the context of the country visit to Portugal.
205
Project supported by European Commission (DG REFORM).
21
reason for concern about effectiveness of investment protection for 25% of companies in
Portugal206
.
The Constitutional Court reviewed the electoral process. Following the rejection by
Parliament of the State Budget Bill in October 2021, the President of the Republic dissolved
the Parliament and called general elections207
, which took place on 30 January 2022. In the
context of the counting of the votes of the Europe electoral circle208
, the General Electoral
Board declared the votes of 150 voting assemblies of this electoral circle to be null and
void209
. Consequently, the Constitutional Court was seized210
. In a judgment of 15 February
2022211
, the Constitutional Court partially upheld the appeal, revoking the decision of the
General Electoral Board of the Europe electoral circle. The Constitutional Court declared null
the votes of the voting assemblies affected by the decision, and determined the repetition of
the vote in the concerned voting assemblies. The Constitutional Court affirmed that the
constitutional control envisaged in electoral matters is not primarily intended to safeguard
individual rights, but to ensure the legality of the electoral process, which is essential for the
democratic legitimacy of the political power212
. The new parliamentary term started after this
review and the subsequent repetition of the vote213
. During the dissolution period214
,
Parliament ceased its regular functioning, with no plenary sessions taking place, and meetings
of Parliamentary Committees limited to those necessary for the final drafting of the bills215
.
Consequently, the legislative activity decreased significantly in the first trimester of 2022.
The emergency measures adopted in the context of the COVID-19 pandemic were
subject to scrutiny, and reflections are ongoing on a new legal basis for emergency
measures. While the state of emergency ceased to apply in April 2021, the Government has
declared since then situations of calamity, alert, and contingency at different occasions216
.
Currently, the situation of alert remains applicable217
. Since March 2020, the Government has
submitted to Parliament 26 reports containing the relevant information on the strategy to
206
Figure 55, 2022 EU Justice Scoreboard.
207
Decree of the President of the Republic No. 91/2021, of 5 December.
208
Art. 12(4), Law No. 14/79, of 16 May, as amended. Voter residing abroad are group in two electoral circles,
one of them covering all European countries.
209
This decision was prompted by the fact that local Electoral Boards decided to accept as valid votes that were
not accompanied by the photocopy of the identity document, as prescribed in law (Art. 79-G (6) Law No.
14/79, of 16 May, as amended), consequently considering them together with the remaining votes for the
final counting. The General Electoral Board considered that such votes should be considered null and void
and, given that it was no longer possible to identify the votes that had been incorrectly considered valid,
declared the nullity of all votes. The decision affected a universe of approximately 160 000 votes.
210
Case No. 180/2022. The Constitutional Court is competent to decide on electoral matters pertaining to the
parliamentary elections (Art. 117, Law No. 14/79, of 16 May, as amended).
211
Constitutional Court, judgment 133/2022 of 15 February 2022, Case No. 180/2022.
212
Constitutional Court, judgment 133/2022 of 15 February 2022, Case No. 180/2022, para. 15.
213
On 12 and 13 March in person, and until 23 March for postal voting.
214
From 5 December 2021 to 28 March 2022.
215
Exceptionally, the Parliamentary Committee on Transparency and Members’ Statute and the Committee on
European Affairs were allowed to meet, subject to authorisation by the President of Parliament. The
Standing Committee, chaired by the President of Parliament, Vice-Presidents and members appointed by all
parties represented in Parliament, which replaces the plenary when the Parliament is not in full session,
functioned during this period, and held nine meetings.
216
Input from Portugal for the 2022 Rule of Law Report, p. 27. See also 2021 Rule of Law Report, Country
Chapter on the rule of law situation in Portugal, p. 17, and 2020 Rule of Law Report, Country Chapter on the
rule of law situation in Portugal, p. 13.
217
Resolution of the Council of Ministers No. 47/2022, of 30 May.
22
combat the pandemic, which were prepared by the State of Emergency Monitoring Structure,
coordinated by the Ministry of Interior218
. These reports were subject to debate and approval
in Parliament. The Constitutional Court219
, as well as ordinary courts, were also called to
review emergency measures. In particular, the Supreme Administrative Court decided on four
appeals referring to COVID-19-related measures, dismissing all the claims220
. The
Ombudsperson, besides responding to numerous complaints related to emergency measures,
also undertook sectorial studies on issues raised by the COVID-19 pandemic221
, including on
the legal basis for the adoption of exceptional measures to fight the pandemic under the
constitutional framework222
. The studies’ results led the Government to establish a working
group, entrusted with the task of preparing legislation for the adoption of exceptional
measures. The group delivered a draft bill to the Government in November 2021, which was
not discussed in Parliament due to its dissolution223
.
On 1 January 2022, Portugal had 17 leading judgments of the European Court of
Human Rights pending implementation224. While Portugal’s rate of leading judgments
from the past 10 years that remain pending was at that time at 41%, the average time that the
judgments have been pending implementation was 3 years and 10 months225
. The oldest
leading judgment, pending implementation for 11 years, concerns the fairness of criminal
proceedings226
. On 1 July 2022, the number of leading judgments pending implementation
has decreased to 15227
.
The internal structure of the Office of the Ombudsperson has been reformed in order to
better reflect its mandate. The Ombudsperson is accredited with ‘A’ status by the UN
Global Alliance of National Human Rights Institutions (GANHRI)228
. In 2021, the
Government adopted a new Act on the Ombudsperson’s Office229
to reform the structure of
218
Input from Portugal for the 2022 Rule of Law Report, p. 27.
219
Contribution from the Conference of European Constitutional Courts for the 2022 Rule of Law Report, pp.
24-27. The availability of judicial review of emergency measures, including by the Constitutional Court, is
an important guarantee, in line with European standards (Venice Commission, Interim Report on the
measures taken in the EU member States as a result of the Covid-19 crisis and their impact on democracy,
the Rule of Law and Fundamental Rights (CDL-AD(2020)018-e), paras. 77 and 78).
220
Information received from the Supreme Administrative Court in the context of the country visit to Portugal.
221
Covering three areas: the situation of the homeless; the implications of the pandemic in education; and the
impact of the pandemic at the level of the rule of law.
222
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 433.
223
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 429.
224
The adoption of necessary execution measures for a judgment by the European Court of Human Rights is
supervised by the Committee of Ministers of the Council of Europe. It is the Committee’s practice to group
cases against a State requiring similar execution measures, particularly general measures, and examine them
jointly. The first case in the group is designated as the leading case as regards the supervision of the general
measures and repetitive cases within the group can be closed when it is assessed that all possible individual
measures needed to provide redress to the applicant have been taken.
225
All figures are calculated by the European Implementation Network and are based on the number of cases
that are considered pending at the annual cut-off date of 1 January 2022. See the Contribution from the
European Implementation Network for the 2022 Rule of Law Report, p. 64.
226
Judgment of the European Court of Human Rights of 5 July 2011, Moreira Ferreira v. Portugal, 19808/08,
pending implementation since 2011.
227
Data according to the online database of the Council of Europe (HUDOC).
228
Global Alliance of National Human Rights Institutions (GANHRI), Sub-Committee on Accreditation (SCA)
(2017), Accreditation Report – November 2017.
229
Decree-Law No. 80/2021, of 6 October.
23
the supporting services to the Ombudsperson and better ensure compliance with the Paris
Principles230
. The legislation was subject to an extensive consultation process, in which the
Ombudsperson was actively involved231
. The new organisation explicitly reflects two
dimensions of its mandate, namely its work on the National Human Rights Institutions and
the National Preventive Mechanism under the Optional Protocol to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment232
. The new Act
formalises the existence of three new departments that add up to the existing Complaints
Unit, which was also re-structured. The new departments have specific competences in the
fields of prevention against torture, international relations and development of studies and
projects233
. A new triage unit has also been established, which is expected to help deal with
the increasing number of complaints in an efficient manner234
. Although the number of
recommendations pending follow-up increased in 2021235
, it is reported that the practice
confirms the complete respect regarding the independence and integrity of the Ombudsperson
institution in the performance of its duties, and that there are no systematic threats, forms of
harassment or intimidation to the Ombudsperson’s heads and staff236
. However, there is still
no focal point in Parliament which would facilitate swift follow-up on the Ombudsperson
recommendations to Parliament237
.
Civil society space remains open, despite certain challenges. The civil society space
continues to be considered to be open238
. Whereas, in the course of 2021, restrictions on
rights and freedoms were imposed due to the COVID-19 pandemic, these resulted from
general measures, not ones targeting specifically human rights defenders or civil society
organisations (CSOs)239
. CSOs continue to be actively involved in Government initiatives, in
particular in the areas of civic participation and gender equality240
. However, isolated acts
against CSOs active in the support of minorities continue to occur241
. In December 2021, the
UN Working Group of Experts on People of African Descent urged the Government to adopt
effective measures to prevent reprisals against anti-racism human rights defenders242
. In this
context, it is to be noted that, in July 2021, the Government approved the National Plan
Against Racism and Discrimination, which had been prepared with CSOs243
. CSOs also
230
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 426.
231
Input from Portugal for the 2022 Rule of Law Report, pp. 27 and 28.
232
Input from Portugal for the 2022 Rule of Law Report, p. 27.
233
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 426.
234
Information received from the Office of the Ombudsperson in the context of the country visit to Portugal.
235
Input from Portugal for the 2022 Rule of Law Report, p. 28.
236
Information received from the Office of the Ombudsperson in the context of the country visit to Portugal;
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2021
Rule of Law Report, p. 425. See also Venice Commission, Principles on the Protection and Promotion of the
Ombudsman Institution (‘The Venice Principles’), CDL-AD(2019)005, para 24.
237
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 427.
238
Rating by CIVICUS; ratings are on a five-category scale defined as: open, narrowed, obstructed, repressed
and closed.
239
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 426.
240
Input from Portugal for the 2022 Rule of Law Report, Annex A.
241
Contribution from Front Line Defenders for the 2022 Rule of Law Report, p. 5.
242
Contribution from the UN Human Rights Regional Office for Europe – Portugal for the 2022 Rule of Law
Report, p. 2.
243
Input from Portugal for the 2022 Rule of Law Report, p. 31.
24
continue to face challenges related to the availability of public and private funding and the
reduced diversity of funding sources244
. The dissolution of Parliament following the rejection
of the 2022 state budget sparked concerns of delays in the allocation of funding to CSOs245
.
Several initiatives to foster a rule of law culture are ongoing. The Government is leading
initiatives for the promotion of a rule of law culture aimed at high school students, integrated
in the National Strategy for Civic Education246
, and specific information campaigns have
been developed to improve the understanding of the functioning of the justice system247
.
Moreover, Parliament approved new legislation in the field of preventing and combating
corruption, which will reinforce specific training in schools on issues of civic participation
and the rule of law248
. The parliament is also cooperating with the Ministry of Education and
the Regional Governments of Azores and Madeira in the ‘Young People’s Parliament’
initiative, which aims to promote the interest of young people in civic and political
participation and to publicise the significance of parliamentary representation and its
decision-making process249
.
244
Contribution from the European Network of National Human Rights Institutions (ENNHRI) for the 2022
Rule of Law Report, p. 426.
245
CIVICUS, Country profile – Portugal.
246
Input from Portugal for the 2022 Rule of Law Report, p. 32.
247
Information received from the Ministry of Justice in the context of the country visit to Portugal.
248
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 41.
249
Information received from the Services of the Assembly of Republic in the context of the country visit to
Portugal.
25
Annex I: List of sources in alphabetical order*
* The list of contributions received in the context of the consultation for the 2022 Rule of Law report
can be found at https://ec.europa.eu/info/publications/2022-rule-law-report-targeted-stakeholder-
consultation_en.
Bar Association (2021), Press release of 20 September 2021.
Bar Association (2019), Opinion of 23 December 2019.
Centre for Media Pluralism and Media Freedom (2021), Media pluralism monitor 2021 – country
report on Portugal.
Centre for Media Pluralism and Media Freedom (2022), Media pluralism monitor 2022 – country
report on Portugal.
CEPEJ (2020), Country profile Portugal – Scoreboard.
Civicus (2022), Monitor tracking civic space – Portugal https://monitor.civicus.org/country/portugal/.
Conference of European Constitutional Courts (2022), Contribution from the Conference of European
Constitutional Courts for the 2022 Rule of Law Report.
Constitutional Court, judgment of 15 February 2022, No. 133/2022, Case No. 180/2022.
Council for the Prevention of Corruption (2020), Recommendation - Prevention of Corruption Risks
and Related Infringements as part of the response measures to the pandemic outbreak of COVID-19.
Council of Bars and Law Societies of Europe (2022), Contribution from the Council of Bars and Law
Societies of Europe (CCBE) for the 2022 Rule of Law Report.
Council of Europe: Committee of Ministers (2018), H46-20 Vicente Cardoso group v. Portugal
(Application No. 30130/10) – Supervision of the execution of the European Court’s judgments
CM/Del/Dec(2018)1331/H46-20.
Council of Europe: Committee of Ministers (2021), Decision CM/Del/Dec(2021)1411/H46-25.
Council of Europe: Committee of Ministers (2010), Recommendation CM/Rec(2010)12 of the
Committee of Ministers to member states on judges: independence, efficiency and responsibilities.
Council of Europe: Committee of Ministers (2000), Recommendation No. R(2000)21 of the
Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of
lawyer.
Council of Europe: Consultative Council of European Judges (CCJE) (2021), Opinion No. 24 (2021)
on the evolution of the Councils for the Judiciary and their role in independent and impartial judicial
systems.
Council of Europe: Consultative Council of European Judges (CCJE) (2007), Opinion No. 10 (2007)
to the attention of the Committee of Ministers of the Council of Europe on the Council for the
Judiciary at the service of society, of 23 November 2007.
Council of Europe, Platform to promote the protection of journalism and safety of journalists –
Portugal https://fom.coe.int/en/alerte?years=2022&typeData=1&time=1653914309287.
Council of Europe: Venice Commission (2020), Interim Report on the measures taken in the EU
member States as a result of the Covid-19 crisis and their impact on democracy, the Rule of Law and
Fundamental Rights (CDL-AD(2020)018-e).
Council of Europe: Venice Commission (2019), Principles on the Protection and Promotion of the
Ombudsman Institution (‘The Venice Principles’), CDL-AD(2019)005.
Council of the European Union (2021), Council implementing decision (10149/21) on the approval of
the assessment of the recovery and resilience plan for Portugal, 6 July 2021.
26
Council of the European Union (2021), Annex to the Council Implementing Decision on the approval
of the assessment of the recovery and resilience plan for Portugal.
Court of Audit (2021), Risks in the use of public resources in the management of emergencies
(COVID-19).
Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law.
Directorate-General for Communication (2019), Flash Eurobarometer 482: businesses’ attitudes
towards corruption in the EU.
Directorate-General for Communication (2020), Special Eurobarometer 502: corruption.
Directorate-General for Communication (2022), Flash Eurobarometer 507: businesses’ attitudes
towards corruption in the EU.
Directorate-General for Communication (2022), Special Eurobarometer 523: corruption.
ERC (2022), Press release of 12 January 2022.
European Association of Judges (2022), Contribution from the European Association of Judges for
the 2022 Rule of Law Report.
European Commission (2020), 2020 Rule of Law Report, Country Chapter on the rule of law situation
in Portugal.
European Commission (2021), 2021 Rule of Law Report, Country Chapter on the rule of law situation
in Portugal.
European Commission (2021), EU Justice Scoreboard.
European Commission (2022), EU Justice Scoreboard.
European Court of Human Rights, judgment of 5 July 2011, Moreira Ferreira v. Portugal, 19808/08.
European Court of Human Rights, judgment of 11 January 2022, Freitas Rangel v. Portugal,
78873/13.
European Implementation Network (2022), Contribution from the European Implementation Network
for the 2022 Rule of Law Report.
European Network of Councils for the Judiciary (2022), Contribution from the European Network of
Councils for the Judiciary (ENCJ) for the 2022 Rule of Law Report.
European Network of National Human Rights Institutions (2022), Contribution from the European
Network of National Human Rights Institutions for the 2022 Rule of Law Report.
Expresso (2022), ‘Ministry of Justice distances itself from the law on judicial impediments’
(‘Ministério da Justiça demarca-se da lei de impedimentos dos juízes’)
https://expresso.pt/sociedade/2022-03-21-Ministerio-da-Justica-demarca-se-da-lei-de-impedimentos-
dos-juizes-22834751.
Front Line Defenders (2022), Contribution from Front Line Defenders for the 2022 Rule of Law
Report.
GRECO (2021), Fourth Evaluation Round – Second Interim Compliance Report on Portugal on
preventing corruption in respect of members of parliament, judges and prosecutors.
GRECO (2019), Fourth Evaluation Round – Interim compliance report on Portugal on preventing
corruption in respect of members of parliament, judges and prosecutors.
High Council for the Administrative and Tax Courts (2021), Annual Report 2020.
High Council for the Judiciary (2022), Plenary Decision of 8 March 2022.
High Council for the Judiciary (2021), Public Notice No 220/2021, of 9 November 2021.
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IGF, Autoridade de Auditoria (2021), Gestão dos Riscos na Contratação Pública.
https://www.igf.gov.pt/aigf/primeirapagina/IGF_91_Anos_Gestao_dos_Riscos_na_Contratacao_Publi
ca.pdf
Journalists’ Professional License Committee (2022), Press release of 12 January 2022.
Journalists’ Professional License Committee (2021), Complaint to the President of the Republic and
to the Ombudsperson of 30 June 2021.
Journalists Union (2022), Press release of 10 February 2022.
Journalists Union (2022), Press release of 3 January 2022.
Journalists Union (2021), Press release of 30 June 2021.
Magistrats Européens pour la Démocracie et les Libertés (2022), Contribution from Magistrats
Européens pour la Démocracie et les Libertés (MEDEL) – Portugal for the 2022 Rule of Law Report.
Ministry of Justice (2022), Staff map https://dgpj.justica.gov.pt/Instrumentos-de-Gestao/Mapa-de-
pessoal.
Ministry of Justice (2022), Press release of 4 February 2022
https://justica.gov.pt/Noticias/Plataformas-tecnologicas-Magistratus-e-MP-Codex-avancam-nos-
tribunais.
OSCE Representative on Freedom of the Media (2022), Press Release of 13 January 2022.
Portuguese Government (2022), Input from Portugal for the 2022 Rule of Law Report.
Portuguese Government (2020), National Anti-Corruption Strategy 2020-2024.
Portuguese Government – Council of Ministers (2021), Resolution No. 143/2021.
President of the Republic (2021), Press release of 29 July 2021.
Público (2022), ‘Courts in risk of rupture for lack of clerks’.
Público (2021), ‘DCIAP director pressures Government and criticises lack of resources’.
Reporters without Borders – Portugal https://rsf.org/en/country/portugal.
RTP (2021), 2020 Financial Statement Report.
Statista (2021), SMEs in Portugal 2021, by size, https://www.statista.com/statistics/880031/number-
of-smes-in-portugal/.
Supreme Court of Justice, judgment of 14 July 2021, Case No. 15/21.5YFLSB-A.
Transparency International (2022), Corruption Perceptions Index 2022.
United Nations Human Rights Regional Office for Europe (2022), Contribution from the UN Human
Rights Regional Office for Europe on Portugal for the 2022 Rule of Law Report.
Working Group on Administrative and Tax Courts (2021), First Interim Report of 23 November 2021
https://justica.gov.pt/Noticias/Justica-administrativa-e-fiscal-com-maior-capacidade-de-
resposta#:~:text=Entre%20o%20conjunto%20de%20medidas%20que%20t%C3%AAm%20contribu
%C3%ADdo,digital%20e%20orientada%20para%20a%20simplifica%C3%A7%C3%A3o%20e%20r
acionaliza%C3%A7%C3%A3o.
Working Group on Administrative and Tax Courts (2022), Second Interim Report of 21 February
2022 https://www.portugal.gov.pt/pt/gc22/comunicacao/comunicado?i=apresentacao-do-2-relatorio-
intercalar-do-grupo-de-trabalho-dos-tribunais-administrativos-e-fiscais.
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Annex II: Country visit to Portugal
The Commission services held virtual meetings in March and April 2022 with:
 Bar Association
 Central Department of criminal action and investigation (DCIAP)
 Constitutional Court
 Council for the Prevention of Corruption
 Court of Audit
 High Council for the Administrative and Tax Courts
 High Council for Public Prosecution
 High Council for the Judiciary
 Inspectorate-General of Finance
 Journalists’ Professional License Committee
 Journalists Union
 Judges Union
 Media Authority – Regulatory Entity for Social Communication
 Ministry of Foreign Affairs
 Ministry of Justice
 Observatory of Economy and Fraud Management
 Office of the Prosecutor General
 Office of the Ombudsperson
 Platform of NGOD
 Prosecutors Union
 Secretariat General of the Presidency of the Council of Ministers
 Services of the Assembly of the Republic
 Supreme Administrative Court
 Supreme Court of Justice
 Transparency International – Portugal
 Union of Judicial Administrative Officials
 UTAIL - Technical Unit for Legislative Impact Assessment
* The Commission also met the following organisations in a number of horizontal meetings:
 Amnesty International
 Article 19
 Civil Liberties Union for Europe
 Civil Society Europe
 European Centre for Press and Media Freedom
 European Civic Forum
 European Federation of Journalists
 European Partnership for Democracy
 European Youth Forum
 Free Press Unlimited
 Human Rights Watch
 ILGA Europe
 International Federation for Human Rights (FIDH)
 International Press Institute
 Open Society European Policy Institute (OSEPI)
 Osservatorio Balcani e Caucaso Transeuropa
 Philea
 Reporters Without Borders
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 Transparency International Europe