10.6092/issn.2531-6133/16561
The coronavirus outbreak showed the critical importance and usefulness of a robust technical infrastructure and end-to-end digital processes in the judicial system. Although some application difficulties and limitations were observed during this crisis, the modernization of the Portuguese judicial system was a key element to safeguard the continuity of the functioning of courts. This short article aims to analyse the implementation and use of technologies in the Portuguese courts, as an alternative mode of delivering and maintaining court service within the context of the COVID-19 crisis. For this purpose, several steps are made, namely the characterization of the modernization level of the Portuguese judicial system and the collection and critical analysis of the legal framework, concerning the response to the COVID-19 pandemic by the judicial bodies of governance. Additionally, the analysis relies on the results of a questionnaire and interviews applied to the judicial professions and on official statistical information regarding the functioning of Portuguese courts during the periods of confinement. Final remarks will preview different paths for the future needs of courts in terms of upgrading the use of technologies to contribute to a better, swift, fair, and trustworthy justice.
application/pdf
2531-6133
16561
2
en
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Portugal
When the Court Buildings Close: The Use of Technologies During COVID‐19 in Portugal
Text.Serial.Journal
https://bolognalawreview.unibo.it/
7
Notes
2023-03-10
2023-03-09
2022-11-22
2023-03-10
241-262
UBLR
Fernanda Jesus
2022
10.6092/issn.2531-6133/16561
241
University of Coimbra
2531-6133
2
Portugal
en
262
When the Court Buildings Close: The Use of Technologies During COVID‐19 in Portugal
https://bolognalawreview.unibo.it/article/download/16561/15695
7
llVOLUME 7                                    llISSUE 2                                       NOTES



                           UNIVERSITY OF BOLOGNA LAW REVIEW
                           https://doi.org/10.6092/issn.2531‐6133/16561

           Received: 17 March 2022 | Accepted: 4 Apr. 2022 | Published: 10 March 2023

                                                   A

     When the Court Buildings Close: The Use of Technologies
                 During COVID‐19 in Portugal

  PAULA CASALEIRO*, JOAO PAULO DIAS**, FILIPA QUEIRóS*** & FERNANDA JESUS****

*Paula Casaleiro obtained a PhD in Sociology of Law at the Faculty of Economics, at the University
of Coimbra (Portugal). She is currently a researcher at the Centre for Social Studies, University of
Coimbra (Portugal). Currently, she is part of the research project “Q.U.A.L.I.S. - Quality of Justice in
Portugal! Impact of working conditions in the performance of judges and public prosecutors”, and
“F.R.A.N.E.T. (multidisciplinary research network)”. Her research interests and publications focus
on the issues of family and children law and justice, law and science, and working conditions in
judicial systems.
**João Paulo Dias obtained a PhD in Sociology of Law at the Faculty of Economics, at the University
of Coimbra (Portugal). He is currently a researcher at the Centre for Social Studies of the University
of Coimbra (Portugal), where he acted as Executive Director between 2011 and 2020. He is a member
of the Permanent Observatory of Justice [O.P.J.C.E.S.] since 1996, where he coordinated, integrated,
or collaborated in multiple national and international research on the issues of access to law and
justice, rule(s) of law, the role of the Public Prosecutors, governance and judicial organization, legal
and judicial professions and, more recently, working conditions in the judicial system.
***Filipa Queirós obtained a PhD in Sociology, from the Faculty of Economics, at the University of
Coimbra (Portugal), and she is a currently a researcher at the Centre for Social Studies. Between
2015 and 2020 she had been a researcher in an E.R.C. project where she developed her doctoral
thesis: ”Biogenetic Suspicion: controversies and expectations about forensic DNA phenotyping in
the context of criminal investigation”. Within an approach from the social studies of science and
technology and from the social studies of surveillance, her interests explore the role of science
and technology in monitoring populations. More recently she has also been working on issues
associated with working conditions in the judicial system.
****Fernanda Jesus obtained a Master degree in Psychology from the Faculty of Psychology and
Educational Sciences, at the University of Coimbra (Portugal). She is currently a Junior
Researcher at the Centre for Social Studies, where she is part of the research project “Q.U.A.L.I.S. -
Quality of Justice in Portugal! Impact of working conditions in the performance of judges and
public prosecutors”. She is also a PhD student in Social Psychology at the Faculty of Psychology
and Educational Sciences, at the University of Coimbra(Portugal), developing a thesis with the
proposed theme “Values, attitudes and perceived risk in borrowing behavior”.
This work was funded by F.E.D.E.R. – the European Regional Development Fund through
COMPETE 2020 - the Operational Programme for Competitiveness and Internationalisation
(P.O.C.I.), and by funding from the Portuguese Foundation for Science and Technology within the
framework of project 29039 (Reference: POCI-01-0145-FEDER-029039).


@ *pcasaleiro@ces.uc.pt **jpdias@ces.uc.pt ***filipaqueiros@ces.uc.pt ****fcostajesus@ces.uc.pt
ID
    *0000-0001-9312-7219 **0000-0003-0884-8746 ***0000-0002-4161-2973 ****0000-0002-4205-
9209




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       WHEN THE COURT BUILDINGS CLOSE: THE USE OF TECHNOLOGIES DURING COVID-19 IN
                                       PORTUGAL


                                                     ABSTRACT

The coronavirus outbreak showed the critical importance and usefulness of a robust technical
infrastructure and end-to-end digital processes in the judicial system. Although some application
difficulties and limitations were observed during this crisis, the modernization of the Portuguese
judicial system was a key element to safeguard the continuity of the functioning of courts. This
short article aims to analyse the implementation and use of technologies in the Portuguese
courts, as an alternative mode of delivering and maintaining court service within the context of
the COVID-19 crisis. For this purpose, several steps are made, namely the characterization of the
modernization level of the Portuguese judicial system and the collection and critical analysis of
the legal framework, concerning the response to the COVID-19 pandemic by the judicial bodies of
governance. Additionally, the analysis relies on the results of a questionnaire and interviews
applied to the judicial professions and on official statistical information regarding the
functioning of Portuguese courts during the periods of confinement. Final remarks will preview
different paths for the future needs of courts in terms of upgrading the use of technologies to
contribute to a better, swift, fair, and trustworthy justice.


                                                     KEYWORDS
                          Courts; COVID-19; Technologies; Courts’ Performance; Portugal


                                               TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    242
1. Portuguese Judicial Modernization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      244
2. The Judicial System Responses to the Covid-19 Pandemic: the Uptake of Technologies . .               246
3. When the Court Buildings Close: Technologies and Performance in/of Portuguese Courts
   During Covid-19 Pandemic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       249
        3.1. A Picture of the First Covid-19 Lockdown: Judicial Working and Technologies . .            249
           3.1.1. Procedures and Participants . . . . . . . . . . . . . . . . . . . . . . . . . .       250
           3.2.1.Perceptions of the First Lockdown: Inquiry Results . . . . . . . . . . . . . .         253
        3.2. The Performance of Courts During the Covid- 19 Pandemic . . . . . . . . . . . .            258
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   260




        INTRODUCTION

The pandemic posed substantive challenges to traditional court procedures, and more
broadly, to the judicial system, with unprecedented impacts on the day-to-day work of
the legal and judicial professions. Two of the main challenges were: maintaining a
sufficient level of service while the traditional courts were closed or partially closed; and
the subsequent backlog of cases that was accumulating while courts were not able to
handle their normal workload.1 Throughout the world, courts have attempted to address
the pandemic crisis in various ways.                     Some closed their buildings entirely, others
1
    See Richard E. Susskind, The Future of Courts, THE PRACTICE, 2020, at 1.


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remained partially open, but in both situations dealing only with urgent cases.
Nonetheless, all the countries had to move swiftly to deliver justice remotely and
through online platforms.2 The coronavirus outbreak showed the critical importance
and usefulness of a robust technical infrastructure and end-to-end digital processes in
the judicial system and contributed to the acceleration of the uptake of various
technologies, especially videoconference, in the justice systems of numerous countries.
            In Portugal, following the World Health Organization [W.H.O.] declaration of the
COVID-19 outbreak as an international public health emergency and the guidelines
released by the Portuguese National Health Institution [hereinafter D.G.S.], a set of
organizational, procedural, physical and technological measures was adopted by the
Portuguese judicial system to ensure the safety and health of judicial professionals and
users, while maintaining the functioning of Portuguese courts. In light of the partial
closure of court buildings during the height of the pandemic, judicial system responses
relied strongly on the use of technologies to safeguard the continuity of the functioning
of justice within the imposed restrictions. This article aims to analyse the application
and use of technologies in Portuguese courts as an alternative way of delivering and
maintaining court service in the context of the COVID-19 crisis. In particular, it aims to:
(1) identify the measures adopted, with a special focus on the technological measures; (2)
analyse the use and adequacy of the technologies during the first confinement between
March and May 2020; and (3) analyse the courts’ performance during 2020.
            For this purpose, we will first present a brief analysis of the judicial system’s
responses to the COVID-19 pandemic, focusing on the use of technologies. Secondly, the
discussion will rely on the results of an online questionnaire applied to the judicial
professionals, recurring simultaneously to some illustrative excerpts of interviews
conducted with judicial professionals. And thirdly, we will consider the official statistical
information regarding the court flow in the Portuguese courts during 2020. This work
was developed within the research project Q.U.A.L.I.S. - Quality of Justice in Portugal
Impact of working conditions in the performance of judges and public prosecutors
[hereinafter Q.U.A.L.I.S.], which aims to examine the working conditions of judicial
professionals in Portugal, evaluating their impact on professional performance and,
consequently, on the quality of justice. The prevention and control measures of the
COVID-19 infection had strong implications for judicial professionals, affecting their
working contexts and the performance of courts. It also accelerated the introduction of
multiple changes in diverse areas of its functioning, deeply disturbing several

2
    Contra O.S.C.E. OFF. FOR DEMOCRATIC INST. & HUM. RTS., THE FUNCTIONING OF COURTS IN THE COVID-19 PANDEMIC:
    A PRIMER 20-21 (2020).


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                                     PORTUGAL


dimensions of the working conditions at courts and the “traditional” way in which
justice was delivered to citizens.




      1. PORTUGUESE JUDICIAL MODERNIZATION

The ability of the judicial system to manage the workload of courts and to maintain some
functioning during lockdown required, among other things, that those involved have
access to and are able to file and share documents electronically. And subsequently have
access to an effective digital case management system.
          In Portugal, the management of buildings, equipment and information
technology is divided amongst different entities, such as the Directorate-General for the
Administration of Justice [hereinafter D.G.A.J.]3 and the Institute of Financial
Management and Judicial Infrastructures [hereinafter I.G.F.E.J.]4 of the Ministry of
Justice; the Prosecutor General’s Office; the various High Councils (of the Judiciary,
Administrative and Tax Courts, Public Prosecution and Court Clerks); and different
intermediate management boards such as the County Courts Management Board.
          The management of courts is thus dispersed over different entities sometimes
with competing and overlapping competences. Studies have characterized the model of
governance of the Portuguese judicial system and management of the courts as a rigid
structure, with poorly coordinated, dispersed authority.5 For example, the management
of each judicial district’s court of first instance is carried out by a management board,
composed of a presiding judge, a coordinating public prosecutor and a judicial
administrator. Each district court has a small budget and has autonomy to distribute the
budget and its execution. However, most of the expenses depend on the technical advice
and previous approval of the D.G.A.J. and the I.G.F.E.J., decreasing the autonomy and
responsiveness of the Management Councils and often preventing a timely response.6

3
  The Directorate-General of Justice Administration is a service of the Ministry of Justice tasked with ensuring
  operational support to the courts. D.G.A.J., https://dgaj.justica.gov.pt/English/About-DGAJ (last visited Mar.
  16, 2022).
4
  The Institute of Financial Management and Judicial Infrastructures is in charge of several issues of a
  transversal nature to the Ministry of Justice, namely budget and financial, patrimonial and construction,
  technological infrastructures and information systems. I.G.F.E.J., https://igfej.justica.gov.pt/Sobre-o-
  IGFEJ/Quem-somos (last visited Mar. 16, 2022).
5
  See João Paulo Dias & Conceição Gomes, Judicial Reforms “Under Pressure”: The New Map/Organisation of the
  Portuguese Judicial System, 14 UTHRECT L. REV. 174 (2018). See also Giuliana Palumbo et al., Judicial Performance
  and its Determinants: A Cross-Country Perspective, OECD ECON. POL’Y PAPERS, June 2013, at 28, 29.
6
  See António Gonçalves, Administrador judiciário: um ano na nova estrutura judiciária [Judicial Administrator:
  One year in the new judicial structure], 27 REVISTA JULGAR [Rev. Julgar], 177-191 (2015) (Port.).


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In relation to judicial modernization, in the past two decades, Portugal promoted several
initiatives, such as the Justica + Próxima programme,7 which encompasses the Tribunal+
flagship project, as well as Simplex +, a cross-governmental modernization plan.8 As part
of the Justica + Próxima programme, Portugal is increasingly employing IT applications in
the justice system, including for case management, e-filing, document management,
digitalization of courtroom functions, human resources management tools, help desk
and public information systems, in order to facilitate accessibility of justice, especially in
courthouses. The            digitalization       (dematerialization)          of    case     management           and
information made relevant documents easily accessible to different users - with the
ability to read and annotate where deemed appropriate.
           Over the past decade, Portugal has been investing in the dematerialization of
case management and information, including the Citius electronic platform, which seeks
to provide a single online solution for judges, public prosecutors, lawyers, solicitors,
enforcement agents and insolvency practitioners. Citius involved the modernization of
core I.T. systems in the courts, including judicial electronic processes from first instance
courts to the supreme courts and more than 100 technological features in all Magistrate
Information Systems.9 A similar platform, the Sistema de Informação de gestão dos
Tribunais Administrativos e Fiscais [hereinafter S.I.T.A.F.] has been developed in the
administrative and fiscal jurisdiction, introducing digital transmission of tax
proceedings from the administration to administrative and fiscal courts, an innovative
feature. Recently, in order to facilitate the dematerialization process, the Ministry of
Justice distributed laptop computers to all magistrates.10
           Furthermore, the Justiça + Próxima programme envisages a series of measures,
including strengthening court capacities for video conferencing, which aims to alleviate
some concerns about the growing concentration and centralization of courts - associated
with the distance between the courts and some population living in remote areas.11
Since 2013, the Portuguese law foresees that witnesses, experts and parties may be heard


7
   See Paula Fernando, Intertwining Judicial Reforms and the Use of ICT in Courts: A Brief Description of the Portuguese
   Experience, 8 EUR. Q. POL. ATTITUDES AND MENTALITIEs, no. 2, 2012, at 7.
 8
   See generally O.E.C.D., JUSTICE TRANSFORMATION IN PORTUGAL: BUILDING ON SUCCESSES AND CHALLENGES (2020).
 9
   In Portugal, the word “magistrate” refers to judges or public prosecutors, according to national legislation,
   more specifically the professional statutes.
10
   Ana Henriques, Ministério da Justiça vai Substituir Computadores dos Magistrados. Juízes e Procuradores
   vão receber 3400 Portáteis Novos Ainda Este Ano, Para os Ajudarem no “Processo de Desmaterialização em
   Curso”, [Ministry of Justice will Replace Magistrates’ Computers. Judges and Prosecutors Will Receive 3,400
   New Laptops Later this Year, to Help them with the “Ongoing Dematerialization Process”], PUBLICO (Nov. 30,
   2018, 7:43 PM), https://www.publico.pt/2018/11/30/sociedade/noticia/ministerio-justica-vai-substituir-
   computadores-magistrados-1853118.
11
   See Patricia Branco, The Geographies of Justice in Portugal: Redefining the Judiciary’s Territories, 15 INT’L J. L.
   CONTEXT 450 (2019).


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by videoconference.12 Under Portuguese civil procedural law, as a rule, witnesses and
parties must be heard by video conference in the same hearing and from the district
court of the area of residence, and experts of laboratories or official services heard by
teleconference from their workplace.13




      2. THE JUDICIAL SYSTEM RESPONSES TO THE COVID‐19 PANDEMIC:
      THE UPTAKE OF TECHNOLOGIES

In the middle of March 2020, in response to the rapid spread of the coronavirus
SARS-CoV-2 and following the first declaration of the state of emergency, the access to
Portuguese court buildings was conditioned, and face-to-face/in-person court services
and proceedings were severely restricted. Simultaneously, alternative ways of delivering
court service were adopted or reinforced, namely, through the uptake of various
technologies.14
          The state of emergency was first declared on 18 March, by Decree of the
President of the Republic 14-A/2020, based on a situation of public calamity.15 After this
declaration, a set of measures related to deadlines and procedural steps were taken with
immediate repercussions on the functioning of the courts. Law 1-A/2020 of 19th March,
amended by Laws 4-A/2020 and 4-B/2020 of 6th April, established that only urgent acts
and proceedings, in which fundamental rights are at stake, would be carried out in
person (e.g., proceedings concerning minors at risk or urgent guardianship proceedings
or criminal proceedings with persons in detention).16 Additionally, the use of digital

12
   See Código de Processo Civil [Portuguese civil procedural law code], (Law n.º 41/2013, June 26, 2013), art. 502
   (Port.).
13
   See id.
14
   For a more detailed and global analysis of the measures taken by the Portuguese
   government/public authorities and the implications of COVID in fundamental rights see Centre
   for Social Studies, Coronavirus pandemic in the EU – Fundamental Rights ImplicationS, FRA (2020),
   https://fra.europa.eu/sites/default/files/fra_uploads/pt_report_on_coronavirus_pandemic_july_2020.pdf.
15
   See Decreto do Presidente da República n.º 14-A/2020 de 18 de março [Decree of the President of the Republic
   14-A/2020], https://dre.pt/dre/detalhe/decreto-presidente-republica/14-a-2020-130399862 (Port.). For an
   overview of the legal framework on the state of emergency in Portugal see Vânia Magalhães, Reflexões
   sobre o crime de desobediência em Estado de Emergência [Reflections on the Crime of Disobedience in a State
   of Emergency], JULGAR ONLINE, MAR., 2020, http://julgar.pt/reflexoes-sobre-o-crime-de-desobediencia-em-
   estado-de-emergencia/.
16
   See Lei n.º 1-A/2020 de 19 de março [Act no. 1-A/2020 of 19 March] art. 7, 8, https://dre.pt/dre/detalhe/lei/1-
   a-2020-130473088 (Port.). For an overview and analysis of the measures adopted in Portugal, in relation to
   the COVID-19 pandemic, which affected the judicial system, see, among other: Joaquim Oliveira Martins, A
   Lei n.º 1-A/2020, de 19 de março – uma primeira leitura e notas práticas[Act no. 1-A/2020 of March 19 - a first
   reading and practical notes], JULGAR ONLINE, MAR. 2020, http://julgar.pt/a-lei-n-o-1-a2020-de-19-de-marco-
   uma-primeira-leitura-e-notas-praticas/.


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tools was strengthened:            any procedural acts were permitted through tele/video
conference and the use of email instead of the telephone was recommended to seek
information from courts.17 The judicial proceedings were to be held, whenever feasible,
through the appropriate means of long distance communication, namely by
teleconference or video call. The proceedings were only to be carried out in person when
this did not imply the presence of a higher number of persons than those foreseen by the
health authorities’ recommendations. It is important to note that the criteria concerning
which proceedings were to be carried out in person or using digital platforms may not
have been applied in the same way by all judges, as the clauses were too general and
difficult to interpret.18
          During this period, Decree no. 2-A/2020 made the adoption of the teleworking
regime mandatory, whenever the nature of the work allowed it or the professional had
risks of getting severe COVID-19 disease consequences due to prior health problems, as
per the definition of the National Health Institution.19 The electronic processing of files
and the practice of non-urgent acts at a distance were only possible because most cases
were already completely digitalized and available in the Citius and S.I.T.A.F. systems.
          The implementation of these measures relied heavily, not only on the
pre-existing technological infrastructure in Portuguese courts (such as the existence of
complete       digitalized     judicial     proceedings),       but    also     on    the    provision      of
videoconferencing [hereinafter V.C.] solutions in the courts, such as the Cisco Webex
Meetings tool.        Although magistrates use portable computers with Virtual Private
Network [hereinafter V.P.N.], which allows for remote access to the computer systems of
justice, the survey carried out by the Association of Portuguese Judges, during the last
two weeks of March 2020, showed that 70% of magistrates stated that it took longer to
complete tasks remotely than under normal circumstances.20 They point out two main
reasons for the delay: (1) the fact that some files (notably: criminal and insolvency files)
are not fully digitalized and (2) the difficulties in the remote connection. Nevertheless, a



17
   See Lei n.º 1-A/2020 de 19 de março [Act no. 1-A/2020 of 19 March] art. 7, https://dre.pt/dre/detalhe/lei/1-
   a-2020-130473088 (Port.).
18
   Joaquim Oliveira Martins, (De novo a) Lei n.º 1-A/2020 – uma terceira leitura (talvez final?) [(Again
   a) Law 1-A/2020 - a third (perhaps final?) reading], JULGAR ONLINE, MAY, 2020, http://julgar.pt/wp-
   content/uploads/2020/05/20200529-JULGAR-De-novo-a-Lei-1-A2020-uma-terceira-leitura-talvez-final-
   Jos%C3%A9-Joaquim-Martins-v2.pdF (Port.).
19
   See Decreto n.º 2-A/2020 de 20 de março [Decree-Law no.                 2-A/2020 of 20 March] art.        6,
   https://dre.pt/dre/detalhe/decreto/2-a-2020-130473161 (Port.).
20
   Mariana       Oliveira,     Juízes  trabalham     de    casa,   mas       admitem     dificuldades  [Judges
   work from home, but admit difficulties], PUBLICO (Apr.                            3, 2020, 11:01 pm),
   https://www.publico.pt/2020/04/03/sociedade/noticia/juizes-trabalham-casa-admitem-dificuldades-
   1910958 (Port.).


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significant part of the participants of that survey considered a positive evolution of the
experience over the first two weeks of the confinement in March 2020.
          Additionally, following Law 4-A/2020, which reviewed the exceptional measures
to fight the pandemic, providing for the carrying out of diligences in non-urgent cases
through means of remote communication,21 the Institute of Financial Management and
Equipment of Justice of the Ministry of Justice made a video conference tool available to
courts, supported on the Cisco Webex platform - the so-called “virtual courtrooms”.
Nevertheless, I.G.F.E.J. recognized, in a technical note of 27th April 2020, a set of
disturbances in the virtual sessions and issued recommendations to try to solve the
problems.22
          The availability of virtual courtrooms and the experience of their use has aroused
several criticisms by different legal and judicial actors. At a press conference of 9th April
2020, the Vice President of the High Council of Judges, José Sousa Lameira, considered the
157 virtual courtrooms available in the first and second instance courts to be insufficient.23
Later, the presiding judges of the county courts presented a joint complaint to the body
responsible for providing this computer platform (I.G.F.E.J.), regarding technical problems
that made several trials unfeasible, arguing that the virtual courtrooms did not work, or
operated with major disabilities.24 Also the President of the Bar Association, Luís Menezes
Leitão, in the press release of 12th May 2020, highlighted the ineffectiveness of the existing
platform to carry out virtual judgements, pointing out that it systematically failed and that
it did not guarantee everything that was necessary for a trial (for example, ensuring that
witnesses are not being influenced by third parties).25
          After the end of the first period of the coronavirus state of emergency, a
provisional and exceptional procedural regime for judicial proceedings was established,
reopening the courts, ending the exceptional regime for the suspension of deadlines, and



21
   See Lei n.º 4-A/2020 de 6 de abril [Act no. 4-A/2020 of 6 April] art. 7, https://dre.pt/dre/detalhe/lei/4-a-
   2020-131193439 (Port.).
22
   I.G.F.E.J., Sessões de videoconferência.   Nota técnica (Apr.      24, 2020), https://www.csm.org.pt/wp-
   content/uploads/2020/04/20200428-Videoconferencia-nota-tecnica.pdf(Port.).
23
   Ana Henriques, Tribunais Querem Retomar Actividade, mas Queixam-se de Não lhes Facultarem Meios SuficienteS
   [Courts Want to Resume Activity, but Aomplain for not Providing Them With Sufficient Resources], PUBLICO (Apr.
   9, 2020), https://www.publico.pt/2020/04/09/sociedade/noticia/tribunais-querem-retomar-actividade-
   queixamse-nao-facultarem-meios-suficientes-1911729 (Port.).
24
   Ana Henriques, Salas de Audiência Virtuais Não Funcionam, Reclamam Juízes [Virtual Courtrooms Don’t Work,
   Judges Complain], PUBLICO (Apr. 23, 2020), https://www.publico.pt/2020/04/23/sociedade/noticia/salas-
   audiencia-virtuais-nao-funcionam-reclamam-juizes-1913625(Port.).
25
   See Comunicado de Imprensa sobre a Reabertura dos TribunaiS [Statement of the General Council
   on the Security Conditions of Courts], ORDEM DOS ADVOGADOS [BAR ASSOCIATION] (June 8,
   2020),https://portal.oa.pt/ordem/dossier-covid-19/imprensa/a-reabertura-dos-tribunais/ (Port.).


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returning to on-site discussion and trial.26 However, the use of digital tools remained an
authorized option whenever necessary, according to the health authorities’ guidelines.
And the homeworking regime continued to be an option, whenever the nature of the
work allowed it, for situations of higher professional health risk, and when office spaces
and work organization did not fill the guidelines of D.G.S. and of the Authority for the
Working Conditions [hereinafter A.C.T.].27




      3. WHEN THE COURT BUILDINGS CLOSE: TECHNOLOGIES AND
      PERFORMANCE IN/OF PORTUGUESE COURTS DURING COVID‐19
      PANDEMIC

In order to understand how the technologies were used by the judicial system to deliver
and maintain court service in the context of the COVID-19 crisis, considering the
limitations and potentialities unveiled, we are going discuss part of the work developed
within the research project Q.U.A.L.I.S.. Furthermore, we are going to look at the official
statistical information regarding the functioning of Portuguese courts during the 2020
lockdown.



     3.1. A PICTURE OF THE FIRST COVID‐19 LOCKDOWN: JUDICIAL WORKING
     AND TECHNOLOGIES

The research project Q.U.A.L.I.S. adopted an interdisciplinary and multi-method
approach to analyse the working conditions of the judicial professions in Portugal
(judges, public prosecutors and court clerks), aiming to evaluate their impact on
professional performance, family-work balance and health, through the use, among
others, of a questionnaire and interviews. Both the questionnaire and interviews focused
on six dimensions related to working conditions, each of them including several items
(besides       professional       characterisation):             organizational;          environmental;
personal/individual working experience; work-family balance; health and well-being;
and impacts of COVID-19 on working conditions. In this section, we present the results of

26
   See Lei n.º 16/2020 de 29 de maio [Act no. 16/2020 of 29 May] art. 6-A, https://dre.pt/dre/detalhe/lei/16-
   2020-134762423, (Port.).
27
   See Decreto-Lei n.º 79-A/2020 de 1 de outubro [Decree-Law no. 79-A/2020 of 1 October] art. 3,
   https://dre.pt/dre/detalhe/decreto-lei/79-a-2020-144272529 (Port.).



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the questionnaire related to the first COVID-19 lockdown and some illustrative excerpts
of interviews.



     3.1.1. PROCEDURES AND PARTICIPANTS

The questionnaire was online between October 1st and November 15th 2020, and was
sent to all judicial professionals working in the courts (10978 on December 31st 2020)
with no sampling procedure. The dissemination had the collaboration of the governing
and management bodies of the judiciary (high councils) and other relevant entities of
the justice system (professional associations and unions). In this analysis, we only take
into consideration the results of the questionnaire applied to the judicial professionals of
the judicial district courts (lower judicial courts), leaving outside higher judicial courts
(appeal courts and the Supreme Court) and the administrative and fiscal courts.28 There
are twenty-three judicial courts of first instance, comprising 85% of the human resources
working on all the judicial, administrative, and fiscal courts.29                     We had 1427 valid
questionnaire responses from a universe of 9334 judges, public prosecutors, and court
clerks from the judicial district courts (Table 1).

                    Judicial Profession       Universe30       Sample      % Responses
                    Judges                    1268             223         17.6%
                    Public Prosecutors        1256             227         18.1%
                    Court Clerks              6810             977         14.3%
                    Total                     9334             1427        15.3%

                                                   Table 1




The sample distribution by profession and sex follows the national distribution in the
Portuguese courts. Court clerks comprised 65.2%, judges 20.1% and public prosecutors
14.7% of the respondents, which is similar to the distribution by judicial professions.
Additionally, the respondents of the study sample were 62.6% female and 37.4% male, an
over-representation of women which reflects the already known increasing feminization

28
   The Portuguese legal system contains two major jurisdictions: 1) ordinary; and 2) administrative and fiscal.
   The judicial courts deal with ordinary criminal and civil matters, whereas administrative and fiscal matters
   are heard in the separate administrative court system.
29
   D.G.P.J. JUSTICE STATISTICS, https://estatisticas.justica.gov.pt/sites/siej/en-us/Pages/tribunais.aspx (last
   visited Mar. 16, 2022).
30
   Reference data for the 31st December 2020. Id.



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of the judicial and legal professions in Portugal (in a similar trend to what happens in
other contexts) (Figure 1).31




                               Figure 1: Sex by Judicial Profession and Total (%)




Respondents are aged between twenty and sixty-nine years old, with an average of
approximately forty-eight years (M= 48.41; SD = 9.58). The figure shows differences in the
age distribution of the judicial professions and a tendency to aging in the court clerks’
group. In fact, the mean age of court clerks is higher than the one of judges and public
prosecutors (Figure 2).




31
     See, e.g., ULRIKE SCHULTZ & GISELA SHAW, WOMEN IN THE JUDICIARY (2012).


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                  Figure 2: Age Groups by Judicial Professions and Total (%)



Seventy-three semi-structured interviews were conducted between April and July 2021
with judicial professionals (judges, public prosecutors, and court clerks) working in the
diverse court buildings in Central Lisbon and Coimbra district courts (first instance) -
which consists of the two Q.U.A.L.I.S.’s selected case studies. The Central Lisbon district
comprises nine locations, including eleven buildings, where all the multiple services are
distributed. The buildings are located in both margins of the Tejo River (metropolitan
area of Lisbon), with a territorial competence embracing seven different municipalities.
The Coimbra district includes twenty buildings spread over a large territorial area, which
includes seventeen different municipalities.       Despite the diverse dimensions of the
buildings, and the nature of the services running in each of them, the interviews were
conducted with the goal of ensuring that there was, at least, one interview per building.
In most of the buildings, due to their dimensions, two or three interviews were
conducted. In these last cases, it was mandatory that the interviews were from different
professions.
        Sixty-eight interviews occurred digitally, via Zoom, and five in person: four at
the court’s facilities and one at the Centre for Social Studies’ facilities. Twenty-two
judges, twenty-three public prosecutors and twenty-eight court clerks were interviewed.
On average, the interviews were eighty-two minutes long. All participants signed an
informed consent form in which they agreed to the recording of the interview. All
interviews were transcribed and anonymized.            To protect the anonymity of the
interviewees, we only identified the city where they worked and their profession. This

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form of anonymization will be presented in the interview quotations analysed in the
following sections. The script of the interviews was built in close articulation with the
questionnaire’s structure, including a section related to the COVID-19 impacts.



   3.2.1.PERCEPTIONS OF THE FIRST LOCKDOWN: INQUIRY RESULTS

The inquiry provides a picture of the use, application and performance of technologies in
courts, during the first year of the COVID-19 pandemic, allowing the analysis of its
capacity to respond and maintain the functioning of judicial services. In line with one
survey carried out by the Association of Portuguese Judges, the results reveal that
teleworking became the customary mode of working for judges and public prosecutors
during the first period of confinement. In Portugal, between March and May of 2020,
78.2% of the judges and 64.7% of the public prosecutors’ respondents worked at home
most of the time. Of these, nearly 25% of the judges and 10% of the public prosecutors
reported working exclusively from home. In the case of court clerks, the percentage of
respondents who reported working at home most of the time was less than 17%.
Actually, almost half of the court clerks’ respondents worked mainly or exclusively in
their workplace: the judicial court (Figure 3).




             Figure 3: Work Regime During Confinement by Judicial Profession (%)



The asymmetries in the work regimes were also reported by the interviewees. The judge
said:

         The pandemic and the confinement have brought less work. I didn’t
         stop coming to the court, even at the most critical phase, even if it was
         only once a week, because the court clerks who work with me were

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              here every day. I came to the court so that they would feel that their
              judge was not just at home waiting for this to pass. (Judge, Coimbra)

On the contrary, one of the court clerks interviewed, when asked about the workload
during the covid-19 crisis, stated: “You know those ants we are used to seeing in those
television documentaries, where you see the ant carrying a triple or quadruple weight of
its size? That’s how a court clerk feels today”. (Clerk, Coimbra)
            The work regime adopted during the lockdown is directly related to the
technical resources available in the judicial district courts and the functions performed
by each professional category, judges, public prosecutors and court clerks. On one hand,
while all magistrates (judges and public prosecutors) had portable computers with V.P.N.
before the pandemic, which allowed remote access to the computer systems of justice,
the lack of portable computers for the court clerks hampered the implementation of
teleworking in the case of these professionals. In the circular letter no. 6/2020, of March
26, issued by the D.G.A.J., it can be read:

              It was decided to: 1.       make all the requested laptops available
              immediately, when this number does not exceed 20, and in the other
              Courts to make 50% of the requested laptops available.               2.   To
              authorize that the desktop computers used by court clerks at the
              Court can be transported and used at their home, whenever
              necessary for teleworking, since the number of portable computers
              made available by [D.G.A.J.] and District Courts / Administrative
              Courts is insufficient.32

The court clerks interviewed also reported the lack of equipment and resources like
personal laptops to work at home. On the other hand, the work of employees still
depends heavily on the handling of physical and non-digital documents, which makes it
difficult to opt for teleworking, as mentioned by the interviewed court clerks:

              When it was proposed to do teleworking, they immediately said that
              there were no laptops for everyone. My husband and I, and some of
              our colleagues in the court, are using their personal material. Other
              colleagues were given computers. As those of the magistrates were
              updated, they were given material so they could work from home.
              Those court clerks got what no one else wanted. Some [laptops] even
32
     D.G.A.J., Ofício circular n.          6/2020 [Circular letter n.    6/2020], 26 Mar.       2020,
     <https://dgaj.justica.gov.pt/Portals/26/10-OF%C3%8DCIOS-CIRCULARES/2020/Of%C3%ADcio-c
     ircular%206_2020_%20teletrabalho%20nos%20tribunais.pdf?ver=2020-03-26-113047-120> (last   visited
     March 16, 2022).


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          look like they were in World War II. They came with few conditions.
          (Clerk, Lisbon)

With regard to the equipment and digital platforms made available by the responsible
judicial institutions to carry out procedures remotely in non-urgent cases, most
respondents consider them acceptable. However, the group of workers who consider the
equipment and digital platforms bad or very bad is bigger than to the group that
considers it good or very good, a contrast that is more expressive of the computer
equipment and internet connection (36.4% against 18% for the adequacy platforms to
judicial activities, and 45.1% against 13.3% for the adequacy of the computer equipment
and internet connection to platform requirements)(Figure 4).




                   Figure 4: Equipment and Digital Platforms Adequacy (%)


The speedy adaptation to a range of technologies inevitably generated problems, such as
poor internet connection, the lack of necessary equipment among court clerks and court
users, systems that lacked the sophistication to cope with sudden demands, inadequate
data protection, lack of training in the use of the new technology and lack of I.T.-assistance
when difficulties arose.

          Some colleagues struggled with the connection. The most difficult
          sometimes was the V.P.N. connection because when we were all
          accessing at the same time, we had no system. The system couldn’t
          handle it. I started to realize that there were rush hours. For example,
          from 10 am to 12 pm it was impossible to work, you couldn’t get into
          the system. I would wake up very early like 7 am and work until 10
          am. After 18 pm they also worked well, but only until 19 pm. At that
          time, backup copies should start because the system was very slow
          and wouldn’t work.      From 10 pm onwards, it was wonderful.            I

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              completely changed my schedule, changed the day to night and
              started working from 10 pm until 2 am/4 am. (Clerk, Lisbon)



These problems hampered the realization of procedural acts (e.g. trials and hearings)
through videoconference, conditioning the functioning of the courts, as mentioned by
the judge:



              Now I have had fewer problems, but at the beginning it was very
              difficult to manage when I had people being heard by
              videoconference and others by Zoom.                 The problem with these
              technologies is that they often take longer. It takes a while to get in,
              then you don’t get in, then you can’t hear and, at the end, what is
              done in person in half an hour, perhaps, at Zoom takes an hour or
              more. (Judge, Coimbra)



The questionnaire also provides a picture of the working time and work intensity in the
Portuguese Courts during the COVID-19 pandemic’s confinement. According to the
survey applied by the Eurofound, during the COVID-19 pandemic, many persons in
employment were working fewer hours than usual.33 In the Portuguese courts, during
the first lockdown, the questionnaire pointed out expressive differences between the
judicial professionals (Figures 5 and 6). Magistrates34 who worked mainly from home
during the pandemic were more likely to say their working hours, volume and pace
decreased, compared to court clerks. More than half of the magistrates revealed that the
working volume and pace had decreased or decreased significantly, while less than 20%
of the court clerks reported a decrease in the volume and pace of work. Actually, almost
half of the court clerks reported that the volume and pace of work had increased or
increased a lot.




33
     See, e.g., DAPHNE AHRENDT ET AL, Living, Working and Covid-19 (2020).
34
     We jointly present judges and public prosecutors´ changes in working time and intensity once there were
     not found significant statistical differences between them on those aspects and as explained above, they
     distinguish themselves from court clerks concerning work schedule and flexibility.


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             Figure 5: Changes on Working Time and Intensity Within Magistrates (%)




             Figure 6: Changes on Working Time and Intensity Within Court Clerks (%)



With the courts partially closed and the activity reduced to urgent cases, the functions
performed by the magistrates were the most affected, while the secretarial service could
continue.

            In practice, the proceedings were suspended, stopped a lot.          My
            workload went down, there were judgments without effect because
            the processes were not urgent and the parties did not want to carry
            out the diligence and this allowed me to have some time, otherwise it
            was impossible.     Having two children at home and working at a
            normal pace is impossible. (Judge, Coimbra)

            I was talking to you about my work as a criminal investigation judge,
            in terms of urgent cases and prisoner cases, but there are more cases,
            aren’t there? The investigation processes, for example (...), unless
            they involve arrested defendants or crimes of an urgent nature, are

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               not urgent and all these non-urgent processes have stopped. (Judge,
               Lisbon)

Nevertheless, as mentioned by the court clerk, the secretarial service was used mainly to
clear up pending issues and files:

               During the lockdown, we were even able to organize more things
               because the deadlines were suspended. It was great in that sense
               because we had a lot of secretarial services to do and we were able to
               do certain types of functions that [in a normal situation] we didn’t
               have time for. We usually don’t have time for everything. (Clerk,
               Lisbon)



       3.2. THE PERFORMANCE OF COURTS DURING THE COVID‐ 19 PANDEMIC

In this Section, we analyse the official statistics regarding the performance of courts
during the first year of the COVID-19 pandemic, which gives us an insight into the use of
technologies, when the court buildings were closed. The official statistical information
regarding the functioning of Portuguese courts was collected from the online database
“Justice statistics”,35 produced by the Directorate General for Justice Policy [hereinafter
D.G.P.J.], in the scope of the competences delegated to it by the National Statistical
Institute. In order to understand the impact of COVID-19 and for comparative purposes,
we collected performance indicators and case flow statistical information of the
Portuguese first instance courts from 2018 and 2020. We opted for 2018 instead of 2019
because in the second quarter of 2019 the number of opened and closed cases was
unusually high. According to D.G.P.J., this was a direct effect of internal transfers arising
from the application of Decree-Law No. 38/2019, of March 18, which reorganized the
judicial courts of first instance.
             The official statistics36 show a sharp decrease in the courts activity during the
second quarter of 2020. In this period of general confinement, there was a decrease in
the number of opened cases and in the number of closed cases. Furthermore, despite the
growth in the number of opened and closed cases in the third and fourth quarters of
2020, after the reopening of the courts, the values are still far from those recorded in the
same period of the reference year of 2018. COVID-19 confinements reduced the activities
35
     D.G.P.J., supra note 29.
36
     As mentioned above, we use the statistical data from 2018 instead of 2019, because in the second quarter of
     2019, the number of opened and closed cases was unusually high. This was a direct effect of internal transfers
     arising from the application of Decree-Law No. 38/2019, of March 18, which reorganized the judicial courts
     of first instance.


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in society and, therefore, there was a diminishing of potential conflicts that would arrive
at courts.       Additionally, following the Law 1-A/2020 of 19th March,37 in judicial
proceedings that are not urgent, limitation periods and prescription periods were
suspended (e.g., the time limits for debtors to file applications to open insolvency
proceedings weresuspended), which may have also contributed to the decrease in the
case filling.




           Figure 7: Case Flow at the Judicial District Courts by Quarter (2018 and 2020)38


In the annual statistics, the decrease of the case flow at the judicial district courts in 2020
stands out. In comparison to 2018, it was more expressive in the closed cases than in
opened ones (Figure 7). While the number of opened cases reduced by about 20%, the
closed cases decreased by 34.7%. Consequently, the clearance rate (C.R. indicator), i.e.
the relationship between the new cases and completed cases within a period, in
percentage, decreased in 2020. Despite the measures to maintain the functioning of
Portuguese courts, while ensuring the safety and health of judicial professionals and
citizens, the judicial system revealed difficulties in continuing with the proceedings.
Thus, although any procedural acts were permitted through video conference and most
cases are already completely digitalized and available in the C-platform, the results
indicate that technologies were not used to their full capacity by the judicial
professionals. The focus of this analysis was the global case flow at the Portuguese
judicial district courts.



37
   Lei n.º 1-A/2020 de 19 de março [Act no. 1-A/2020 of 19 MarcH] art.7, 8, https://dre.pt/dre/detalhe/lei/1-a-
   2020-130473088 (Port.).
38
   D.G.P.J., supra note 29.


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Nevertheless, it is important to note that in some civil law areas, such as in the
enforcement procedures,39 this general downward trend does not occur, which requires
further analysis by the legal area in order to reach more concrete conclusions.




                          Figure 8: Case Flow at the Judicial District Courts40




      CONCLUSIONS

The rapid increase in the use of technologies to maintain some functioning during
confinement was one of the most discussed aspects of the impact of COVID-19 on courts.
The use of technologies in Portuguese courts was strengthened during the COVID-19
crisis, but it also benefited from the previous modernization efforts of the judicial
system, namely, the dematerialization and digitalization of proceedings and files.
Therefore, three main conclusions can be elaborated with respect to the impacts of
COVID-19 on courts.
          The first considers the decrease in the volume and pace of work of judicial
professionals (especially judges and public prosecutors) and on the courts case flow
which revealed, regardless of the measures adopted in order to maintain the courts’
functioning, the limitations of the technologies available (hardware and software). Both
39
   Pedro Correia & Neuza Martins, O Impacto da Pandemia COVID-19 no Desempenho Estatístico das Ações Executivas
   Cíveis: O que nos Dizem os Dados até ao Momento? (Encontro de Administração da Justiça – EnAJUS 2021,
   October, 2021) https://www.researchgate.net/publication/356288041_O_Impacto_da_Pandemia_COVID-
   19_no_Desempenho_Estatistico_das_Acoes_Executivas_Civeis_O_que_nos_Dizem_os_Dados_ate_ao_Momento
40
   D.G.P.J., supra note 29.


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were not enough to ensure an alternative way of delivering and maintaining court
services in the context of the COVID-19 crisis. It was clear that the professionals’/courts’
performance was severely conditioned during the first year of the COVID-19 pandemic,
with the exception of the proceedings classified as “urgent” cases by law.
        Secondly, one can conclude that the use of the new technologies (remote access
to Citius, videoconference and other communication tools, among others), for any
procedural act, was not spread equally amid judicial professionals. The evaluation of the
available equipment and digital platforms during the first confinement showed that the
speedy adoption and adaptation to a range of technologies inevitably generated
problems.    These included slow internet connection, lack of necessary equipment,
systems that could not cope with the sudden demand, and the inexistence of previous
training in the use of the technologies.
        Lastly, the analysis of the multiple collected data evinced that the responses to
the COVID-19 pandemic took place against a backdrop of challenges that Portuguese
courts were facing for many years. The lack of adequate computers for court clerks and
the difficulties in the implementation of the V.P.N. system, videoconference systems and
virtual courtrooms hampered the implementation of teleworking. This was far more
evident in the case of the court clerks, and conditioned the realization of procedural acts
(e.g. trials or hearings) through videoconference, impacting severely on the functioning
of the courts.    Court clerks felt more difficulties in operating in the regime of
teleworking, being forced to work in court facilities where the working conditions were
far from satisfactory. On the other hand, judges worked mainly from home during the
confinement and were more likely to state that their working hours, volume and pace
decreased compared to court clerks who remained in the courts.
        COVID-19 provoked several damages in the functioning of courts similarly to
what occurred to other public services. But the rigid organizational and management
structure, with competencies divided by multiple governmental and judicial entities,
made it more difficult to react and adapt to the new circumstances.            Within this
pandemic context, it was of public knowledge that courts were slower to adapt and even
slower to resume the “normal” activity after the confinement period. Not only is it not
possible to characterize the litigation that remained outside courts with the existing
restrictions, but it would take long for it to be possible to evaluate the impacts on the
regular procedural processing of files on courts. The judicial professionals were also not
prepared to adapt to the new technological context and demands, showing difficulties in
ensuring the necessary productivity. To sum up, the pandemic “rupture” calls for a new
paradigm on judicial organization, working contexts and technological tools (hardware


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and software). The justice that citizens have a right to also calls for a changing judicial
culture, where training, cooperation and articulation can be placed in a central position
of professional duties.   The “call for justice” cannot be suspended by any future
pandemic, or justice will be seen more as a “virus” than the “solution” for people’s
problems.




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