Judicial and Legal System

   The 1976 Constitution and 1982 revisions provide for three fundamental courts, each with different functions, as well as other special courts, including a military court. The three principal courts are the Constitutional Court, Supreme Court of Justice, and Supreme Court of Administration. The Constitutional Court determines whether legislative acts (laws) are legal and constitutional. In addition, it ascertains the physical ability of the president of the Republic to perform duties of office, as well as to determine the constitutionality of international agreements. Ten of this court's members are selected by the Assembly of the Republic.

   The Supreme Court of Justice, the highest court of law, heads the court system and tries civil and criminal cases. It includes first courts to try cases and courts of appeal. The Supreme Court of Administration examines the administrative and fiscal conduct of government institutions. All matters concerning judges, including the power to discipline judges whose conduct does not comply with the law, are overseen by the Higher Council of the Bench and the Superior Council of the Administrative and Fiscal Courts. There is also an Ombudsman, elected for a four-year term by the Assembly of the Republic, who serves as chief civil and human rights officer of the country. This officer receives 3,000-4,000 complaints a year from citizens who dispute acts of the judicial and legal system.

   Portugal's system of laws is based on Roman civil law and has been shaped by the French legal system. Unlike common law in the American and British legal systems, Portugal's system of laws is based on a complete body of law so that judicial reason is deductive. Legal precedent, then, has little influence. Portuguese judges are viewed as civil servants simply applying the law from codes, not as a judiciary who interpret law. While the post-1974 judicial and legal system is freer and fairer than that under the Estado Novo dictatorship, it has received criticism on the grounds of being very slow, cumbersome, overburdened with cases, and sometimes corrupt. There has been a backlog of untried cases and long delays before trial because of vacant judgeships and inefficient operations.

   Under Portuguese criminal law, preventive detention for a maximum of four months is legal. Much longer preventive detention terms occur due to the trial backlog. Memories persist of legal abuses under the Estado Novo system, when suspects convicted of crimes against the state could be detained legally for periods of from six months to three years. Media sensationalism and the cited problems of the judicial system exacerbated tensions in recent high-profile trials, including the 2004-05 trial of a child prostitution and pedophile ring, tried in Lisbon, with suspects including a celebrated television personality and a former diplomat.