CMS Expert Guide to Digital Litigation in Portugal

Portugal has made some relevant progress in digitalising its civil justice system in recent years. The country has invested significantly in technology infrastructure and modernisation efforts to streamline court processes and facilitate the access to justice.

The main initiative began in 2008 when Portuguese authorities announced the SIMPLEX programme that further provided for the implementation of the "Citius" digital platform in 2010. This is a web-based system that allows lawyers and (more recently) citizens to access the courts and file civil lawsuits electronically. The platform also manages communication between the court, lawyers, and parties, reducing the need for physical communication.

In parallel, other similar web-based platforms were implemented. As examples, we have inventarios.net (for the management of probate procedures) and the SISAAE platform (to support bailiffs’ functions). The latter is interconnected with Citius, showing that there is a desire to increase interoperability between judicial platforms.

Furthermore, Portuguese courts have increasingly relied on digital and technical tools in recent years. The use of Citius, inventarios.net, and SISAAE platforms have become widespread due to legal imposition with the majority of legal acts within lawsuits and notifications realised through digital means. However, it was the COVID-19 pandemic that fostered the wide use of videoconferencing for sessions that otherwise would have required physical attendance.

In the post-pandemic world, we are witnessing the government's positive plans for digitalisation. For instance, a Ministry of Justice project aims to provide citizens and counsels with access to a digital database containing all the decisions of the higher courts.

In addition, the justice ministry's central services provide a digital database for legal-documentary consultation that give citizens and counsels access to all decisions of the higher courts.

Despite these positive developments, there are still challenges such as the need for further training and education for court personnel and judges on the use of digital tools, as well as the need to ensure the accessibility of the digital system to all citizens, particularly those who are not tech-savvy. In addition, it is still uncertain whether practices imposed during the pandemic will be adopted indefinitely or if certain digital changes will be reversed.

There are several digital and technical measures available in litigation in Portugal that aim to improve the efficiency and accessibility of the civil justice system. These include:

• Electronic filing: the Citius platform, mentioned earlier, enables electronic filing and the signing of lawsuits, petitions, motions, and other documents, allowing lawyers and parties to submit their paperwork online.
• Electronic notifications: for a significant number of cases, parties can receive notifications via email, reducing the need for physical correspondence.
• Videoconferencing: courts can conduct witness hearings via videoconference, enabling parties to attend remotely and reducing the need for travel (provided that certain legal requirements are met).
• Electronic case management: the courts use digital case management systems to track and manage cases electronically, making it easier to access case information and track progress.
• Electronic payment: courts allow payment of fees and fines through electronic means such as credit card payments and bank transfers.

As for frequency of use, Portuguese courts have increasingly relied on digital and technical tools in recent years. Although many courts still rely on physical backup copies of all documentation, the use of the Citius platform is mandatory in the civil justice system. As a result, the majority of lawsuits are being filed electronically with the exception of some appeals. Electronic notifications and videoconferencing have also been widely adopted, particularly during the COVID-19 pandemic, when physical attendance in court was restricted and the majority of hearings had to be conducted entirely online.

The adoption of electronic case management systems and electronic payment methods has also improved the efficiency of court proceedings. However, there may still be some variability in the use of these tools since the implementation and adoption of technology can vary depending on the court or region, and technical constraints are still a major challenge. Additionally, the wide use of videoconferencing still faces significant resistance due to technical and reliability issues.

Overall, the trend towards digitalisation in the Portuguese civil justice system is expected to continue. Further advancements in technology and the implementation of new tools aim to improve access to justice and enhance the efficiency of court proceedings.

The use of Citius platform in the Portuguese civil justice system is, in most cases, mandatory for the court, parties and their counsels.

For example, the use of the Citius platform for electronic processing of lawsuits and other documents is mandatory for lawyers, judges and judicial clerks. The platform is also used for the communication of court decisions and notifications, which are sent electronically to the addressees. When not represented by a lawyer, parties may still present documents and make requests through physical means (i.e. in person, post or fax).

Similarly, videoconferencing may be used in certain circumstances, such as when parties are located in different regions or countries or when physical attendance in court is not possible.

In terms of electronic payment, parties are generally required to pay fees and fines electronically through bank transfers or credit card payments. Cash payments are not accepted in most cases.

In Portugal, litigation is partially digitalised.

Although one must recognise the positive advances in Portuguese civil litigation, currently it is not possible to consider Portuguese civil justice a fully digitalised process. While a significative number of proceedings may be mostly (or even completely) conducted through digital means, the fundamental exception is trial hearings, which still require physical attendance.

To allow full digitalisation of the litigation process, videoconferencing must be widely accepted for judges, clerks, counsels, parties, witnesses and any other intervenient. This technology exists and is widespread in the country, so the effort to implement videoconferencing as a rule would not be huge. As for other disruptive communication technologies (e.g. virtual reality and augmented reality), they would greatly boost digitalisation and efficiency in judicial proceedings. However, these technologies are still in the early stages of use in the overall population, so their use within the judiciary is expected to take a while.

The pandemic experience seems to evidence that the digitalisation of court hearings will be taken as a continued process of development. Although the goal is to increase digitalisation, we are currently in a transitory phase. As such, the following years will continue to include physical processes as safeguards for when digital systems fail.

Portugusese law encompasses several rules concerning the diferent uses of technology in litigation. Only the main procedural rules for civil litigation will be presented.

i) Portuguese Civil Procedure Code

Article 144. of the Portuguese Civil Procedural Code determines that, for legal professionals, the submission to the court of any procedural acts must be made through the Citius system.

Concerning videoconferencing, the Portuguese Civil Procedural Code provides, in article 502.º, the possibility for witnesses to be heard by teleconference at the hearing and from the district court in the area of their residence.

ii) Ordinance n. 280/2013, of 26.8

This ordinance regulates the electronic processing of cases, including presentation of briefs and documents, distribution of cases to judges, notifications and service of process, acts of the judges and clerks, digital access to files, archive and comuninaction between courts and bailifs.
Articles 1. to 3. determine that, for legal professionals, the submission to the court of any procedural acts shall be made through the Citius system.

iii) Ordinance n. 282/2013, of 29.8

This ordinance regulates several aspects of enforcement procedures and establishes rules on the presentation of briefs through digital means.

iv) Decree-law n. 1/2013, of 7.1

This decree-law instals and defines the fuctions of the National Rental Bureau and creates a special procedure for eviction. It also establishes the rules for eviction requests and case processing through digital means.

v) Ordinance n. 9/2013, of 10.1

This ordinance complements the previous decree-law and establishes finer rules on the elctronic processing of eviction cases.

vi) Ordinance n. 257/2021, of 19.11

Similar to the two aforementioned acts, this ordinance regulates the electronic processing of special injuctions on rental matters.

According to our best knowledge, none of these rules are currently up for legislative debate. 

There are several pilot projects and initiatives in Portugal aimed at further fostering digitalisation in litigation that are currently under development by the competent authorities. The most relevant examples include:

1. Practical Guide to Justice: the Ministry of Justice is developing an advanced language model with machine learning, which informs citizens and companies about the instruments and services that the justice ministry provides to meet their needs. Without replacing the powers attributed to lawyers, this guide seeks to clarify and accompany in an impartial, transparent, simple and intuitive manner. The first version of this guide will focus on the theme of marriage and divorce.
   Anonymisation of judicial decisions: the central services of the Ministry of Justice provide a web-based digital database for legal-documentary consultation that allows the general public to have access to all higher courts decisions. 
   However, the publication of judicial decisions can only be made after appropriate anonymisation (i.e. after personal data is deleted). Since this is an entirely manual process, which requires much of the working time of court staff, including judges, it is significantly time-consuming and costly. The difficulties inherent in performing this task manually make it impossible to publish all court decisions. The project in question aims, through the use of tools based on machine learning and artificial intelligence, to detect and anonymise personal data in court decisions. It complies with the latest publication standards and follows open data policies, which facilitate their processing and analysis by the legal community, and also by the scientific and academic community. The pilot project to anonymise the decisions of Administrative and Tax Courts aims to include civil courts in the medium term, and in the long term, will include common courts.   

These initiatives aim to further enhance the digitalisation of the civil justice system in Portugal and provide greater accessibility and efficiency in court proceedings. 

There are currently no rules in place that specifically address the use of AI in litigation.

In any case, Portuguese law is likely to be influenced by the EU’s recent proposal for an Artificial Intelligence Act (COM/2021/206 final, AI Act), which specifically addresses the use of AI systems in the judiciary by classifying it as a high-risk system. According to Annex III, no. 8 of the draft regulation, AI systems that are intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts are considered high risk and are therefore subject to specific regulatory requirements under Articles 8 to 15 of the draft AI regulation.

It should be higlighted that important issues on the use of AI in the judicial process remain unanswered. The per se classification as a high-risk AI system would also cover purely supportive acts in judicial proceedings where there is most likely no potential danger. Thus, there is still a considerable need for specific details in order to make the regulation a proportionate set of rules.

Rules have been issued imposing technical measures to prevent unwanted access and IT-security breaches, such as:

• Access control measures: access control mechanisms such as authentication, authorisation, and identification are used to ensure that only authorised personnel have access to the system both in the context of accessing the referred platforms and filing documentation (with a digital signature by means of digital certificates of authentication).
• Network security measures: network security measures such as firewalls, intrusion detection/prevention systems, and encryption technologies.

The Civil Procedure code states that the digital handling of cases must ensure integrity, authenticity and confidentiality of data, including the protection of judicial secrecy and personal data.

Law n. 34/2009, of 14.07, establishes specific rules for processing data within the judicial system, including ADR mechanisms. It imposes security measures, including the following:

1. Control of the entrance to the premises used for data storage to prevent access to them by unauthorised persons;
2. Control of the media used in order to prevent them from being read, copied, modified or removed by unauthorised persons;
3. Control of access to the data in order to ensure that it is carried out only by authorised persons and that it is done according to the terms of the law;
4. Control of the insertion, alteration, deletion and performance of any other data operations in order to verify which operations have been performed, when and by whom, and to prevent the introduction, as well as any unauthorised alteration or deletion of the data;
5. Control over automated data-processing systems to prevent them from being used by unauthorised persons through data-processing facilities;
6. Control of the transmission of data to ensure that transmission of data through data-transmission installations is limited to authorised entities;
7. Control of the transmission of data and the transport of data media to prevent the unauthorised reading, copying, modification or deletion of data;
8. Control of the access to data from outside the physical premises where it is stored to ensure its security.

Also, judicial system premises are subject to physical security measures to prevent unauthorised access.

Finally, the General Data Protection Regulation (GDPR) is applicable. This regulation provides a set of rules for the processing of personal data in the European Union and imposes obligations on organisations that process such data. Additionally, the Portuguese Data Protection Law, which is based on the GDPR, provides further guidance and requirements for the processing of personal data in Portugal.

We have found no data on the increase in the use of automated systems to manage and process legal claims.

However, we can anticipate that with the recent rise of popularity of AI tools we may be facing new risks for businesses. At this moment, the overall perception is that automated systems may be less reliable or accurate than human review, especially when concerning chatbots and similar tools that, if not given the correct input, provide inaccurate or incorrect legal advice, jeopardising both the claimants and consumers.

The use of digital and automated processes can make it easier for legal tech companies to scale up operations, potentially resulting in a higher volume of legal claims being filed against businesses. This can create additional challenges and costs for businesses since they may need to devote more resources to defending themselves against these claims.

Overall, the use of digital tools in litigation seems prone to introduce new risks for businesses, and it is important for businesses to be aware of these risks and take steps to manage and mitigate them.

As provided above, the Ministry of Justice is currently developing the “Practical Guide to Justice”, which is an advanced language model with machine learning that informs citizens and companies about the instruments and services that the justice ministry provides to meet their needs. Without replacing the powers attributed to lawyers, this guide seeks to clarify and accompany, in an impartial, transparent, simple and intuitive manner. The first version of this guide will focus on marriage and divorce matters.