1 Introduction
Examining the evolution and configuration of the geographies of justice allows us to demonstrate the nature of the relations between citizens and the justice system in society. Within this framework, the location of courts must be read through the geographical lenses of the different challenges, needs and desiderata of the territories and population.
Against this background, and in the aftermath of the financial crisis of 2008, a number of countries, particularly in Europe, have adopted reforms aimed at reorganising their judicial territories, seen in many cases as inefficient and in urgent need of restructuring. The premise is that, as long as they play their role efficiently, courts are regarded as institutions of central importance in ensuring a general climate of stability and predictability that encourages economic investment (European Union, 2017; Mak, Reference Mak2008). The underlying notion is that the lack of an efficient judicial system creates significant costs that hinder economic growth (Espinosa et al., Reference Espinosa, Desrieux and Wan2017). This is all based on the idea that the justice system suffers from a deficit of organisation and management structures, causing a lot of waste and making it imperative to adopt measures aimed at changing working methods (for more effective human and material resource management) and procedural flows (Santos, Reference Santos2014a). This has had significant implications, especially a need to reconceptualise the reform of the judicial institution in a context of financial austerity (Dias and Gomes, Reference Dias and Gomes2018).
In Europe, the geographical distribution of courts (judicial map: number and location of courts, especially those of first instance) remained relatively unchanged for many decades, following the legal and cultural traditions formed over time (Chappe and Obidzinski, Reference Chappe and Obidzinski2013). However, the transformation of society (demographics) and the economy, particularly the financial system, along with the subsequent market crisis, have led not only to a quantitative change in demand (an increase in litigation), but also to a change in the nature of the types of conflict, leading to large variations in the performance of different courts (Liccardo, Reference Liccardo and Castelli2014). As a result, judicial maps have become in many cases ill-suited to the political, social, economic and geographical realities of the different countries (Mak, Reference Mak2008; CEPEJ, 2013).
Within this framework, it should be noted that, between 2006 and 2010, there was a reduction – in some cases highly significant – in the number of courts of first instance in fifteen EUFootnote 1 Member States (Verzelloni, Reference Verzelloni and Castelli2014). At the same time, there was also a trend towards concentration of jurisdiction, in a process aiming at cost containment, optimisation of resources and efficiency of services, which goes hand in hand with the specialisation of courts (Gramckow and Walsh, Reference Gramckow and Walsh2013), as well as an increased use of new technological tools (ICT) aimed at improving the quality and efficiency of the judiciary.Footnote 2
The revision of the judiciary's territorial organisation and the courts’ location has become an issue in Portugal as well. In less than a decade, Portugal has witnessed three reforms in the organisation of the country's judiciary (judicial map), in 2009, 2014 and 2017. The September 2014 reform had deep effects in terms of the judiciary's territorial (and management) structures.
In this paper, I examine the current geographical location of Portuguese courts and the effects this territorial redefinition has had on the relationships between the justice system and the territories/populations in a context in which external and internal political factors, rather than a mere need to improve the justice system, have played a major role. As Ferraris (Reference Ferraris, Anastasia, Calderone and Fanoli2014) aptly argues, we need to examine whether the current redefinitions of the judicial map do indeed enable citizens to access an efficient and organised judicial system or are, instead, compulsory geographical arrangements that fail to take into account the needs of the territories and populations. Such an analysis entails three key elements: (1) the geographic impacts on access to justice (the new territorial structure and its effects), in view of (2) the emblematic presence of the state in the territories (particularly the role played by judgments within the affected community), both contrasted with (3) the conflict between specialisation and the proximity of jurisdiction (mainly associated with the family and juvenile jurisdiction).
1.1 Methodological notes
This paper is the result of post-doctoral research aimed at analysing the impact of the structural reform implemented in 2014, and subsequent adjustments (2017), from a threefold perspective: territorial (location and accessibility of courts in the territory), infrastructural (adequacy and accessibility of courthouse buildings) and representational (the opinions/views of representatives of central/local political bodies and legal professionals such as judges, prosecutors, court officials and lawyers, regarding the phases before, during and after the implementation of these successive reforms). It intends, above all, to examine the impact of the closure and subsequent reopening, concentration, specialisation and proximity within territories of courts in the region of Coimbra, in central Portugal. Choosing this region, away from the more complex comarcas like Lisbon and Porto, enables, from my point of view, a more levelheaded analysis of the reality, in keeping with the national context.
To carry out this analysis, I used a qualitative approach combining: (1) an analysis of the relevant literature in the field; (2) an analysis of official documents from the Portuguese Ministry of Justice, the lawyers’ bar association and the judges’ union; (3) an analysis of legislation; (4) an analysis of official statistical data from the Portuguese Ministry of Justice and the EU Justice Scoreboard; and (5) face-to-face interviews. I conducted seventeen in-depth interviews with fourteen key stakeholders, most of them between November 2016 and May 2018, and the last one as recently as April 2019. To ensure consistency, all interviews – which were recorded with the authorisation of each interviewee, and later transcribed verbatim – were conducted following a semi-structured thematic guide, which varied slightly according to the institution and/or type of interviewee. The interviews lasted between thirty minutes and nearly two hours, and were anonymised in accordance with the research ethics code of conduct. The interviews were all analysed using a dual approach: first, by evaluating each interview individually; and second, by analysing all interviews by comparing research topics, such as an examination of each reform (positive and negative characteristics), territorial unit, management structure, specialisation of jurisdiction, concentration of jurisdiction, proximity of jurisdiction and courthouse infrastructure. This paper draws mainly on the interviews conducted, because this method allows me to integrate different perspectives and uncover controversies and consensus regarding the subject under analysis.
The interviews were conducted with representatives from the (currentFootnote 3 and formerFootnote 4) Ministry of Justice (two), judges (three – one with directive functions as a president judge), prosecutors (two – one with directive functions as a prosecutor co-ordinator), lawyers (three – two of them also as representatives of the lawyers’ bar association), court officials (two – one of them serving as court manager, and the other also as a member of the court officials’ syndicate) and mayors (two). I interviewed one judge (president judge) three times and one of the mayors twice – before and after the adjustments implemented in 2017. Bearing in mind the threefold perspective mentioned above (territorial, infrastructural and representational), the interviewees were selected on the following basis:
• First, I interviewed the representatives of the management structure of the comarca – president judge, prosecutor co-ordinator and court manager – to gain a global insight into the changes produced by the new judicial map (2014), not only at the national level, but particularly at the local level. Furthermore, each professional, given his or her hierarchical status, provided me with insights that were both individual and collective (from judges/prosecutors/court officials) on the reforms and their impacts on territories and populations.
• For broader insight, I interviewed one senior judge from a different comarca and a senior judge with directive functions at the Portuguese Center for Judicial Studies (responsible for training judges and public prosecutors). To the same end, I also interviewed one other prosecutor.
• To move away from the magistrates’ perspective, I interviewed two lawyers with directive functions at the lawyers’ bar association at the regional level (Coimbra). This provided me with a broader perspective than that of the comarca – since the Regional Council of the lawyers’ bar association aggregates different comarcas – but also the opinions of these professionals, who gave me their own qualified insights and also voiced their clients’ opinions. I interviewed one more lawyer who practised in the comarca of Coimbra and had held a political role at the municipal level, thus combining opinions on the profession with policy-making.
• I also interviewed a member of the court officials’ syndicate, to contrast this with the interview with the court manager and obtain a corporative perspective.
• Finally, I interviewed representatives from central and local political bodies (the Ministry of Justice and mayors, respectively). The former and current representatives from the Ministry of Justice were selected in order to ascertain their political views as policy-makers responsible for the reforms implemented in 2014 and 2017. The basis for selecting the two mayors was that one of the municipalities had seen its court closed in 2014 and then reopened as a section of proximity in 2017, and the other municipality was home to the receiving court of files from the closed court. Their views were key to understanding the effects the reform has had on the territories and population served by the two municipalities.
2 Reforming the judicial map in Portugal
The Constitution of the Portuguese Republic establishes a distinction between civil and administrative jurisdiction. Since Law no. 62/2013Footnote 5 dated 26 August, Portugal's civil jurisdiction has been divided into twenty-three court districts called comarcas, each with a main judicial court based in the capitals of the administrative districts (of which there are eighteen, plus two autonomous regions: the Azores and Madeira archipelagos). The exceptions are the districts of Lisbon and Porto, which are divided into three and two court districts, respectively, due to the high case-loads in those districts. Each of these court districts is divided into central and local court departmentsFootnote 6 or juízos (juízos centrais/juízos locais); this division has to do with jurisdictional rules of competence based on territory, matter and value. The central court departments have jurisdiction over the geographic area corresponding to the court district. They are divided into civil, criminal and specialised sections (such as commercial, family and juvenile, or labour sections, etc.) and usually located in the central municipality of the administrative district. Cases not allocated to the central court departments are processed by the local court departments, which have general jurisdiction sections divided into civil, criminal, petty crime and proximity sections, in the other municipalities of the administrative district.Footnote 7
Over the last decades, studies on the Portuguese justice system have highlighted challenges regarding the length of proceedings (court delays), particularly in relation to enforcement procedures and high case-loads (especially of pending cases) (Santos, Reference Santos2014a; Dias, Reference Dias2016). In early 2011, in the wake of the financial crisis affecting the Eurozone, and having lost market access, the Portuguese authorities requested financial assistance from the International Monetary Fund, the European Commission and the European Central Bank – the so-called Troika.Footnote 8 In May 2011, Portugal signed a three-year economic-adjustment programme with the Troika, which the country exited in June 2014, a year and a half before the legislative elections. This economic-adjustment programme signed by Portugal, entitled the Memorandum of UnderstandingFootnote 9 on Specific Economic Policy Conditionality (MoU), was negotiated under certain bailout conditions, imposing a number of structural reforms that needed to be carried out by the Portuguese government in key sectors, or the country would suffer punitive consequences (Pereira Coutinho, Reference Pereira2016; Moury and Standring, Reference Moury and Standring2017). One of those was the judicial sector. As stated in the MoU, Portugal needed to improve the functioning of the judicial system, which meant restructuring the court system (and adopting new court-management models) in order to improve the economy as the ultimate goal.
But what did this restructuring of the court system really mean?
2.1 From 2009 to 2014: using the MoU to advance agendas
Let us go back a few years in time. In 2008/2009, three years before the signature of the memorandum in 2011, Law no. 52/2008Footnote 10 dated 28 August had also envisaged a revision of the judicial organisation, then regulated by means of a law from 1999.Footnote 11 This reform had three specific objectives: (1) a wider territorial template or unit – based on the NUTS (Nomenclature of Territorial Units for Statistics)Footnote 12; (2) a new model of internal court management; and (3) to broaden the specialisation of courts at a national level.
The reform was implemented in April 2009 and aimed at substituting 231 comarcas with thirty-nine new comarcas – but the government showed no intention of closing courts. The reform was based on a pilot model and therefore only implemented in three pilot districts (Alentejo Litoral, Baixo Vouga and Grande Lisboa Noroeste), yet the aim was to extend it countrywide in phases until September 2014, after carefully monitoring and assessing the outcomes of the pilots. According to Dias and Gomes (Reference Dias and Gomes2018), this trial period before phasing it through the whole country until 2014 was the reform's innovative aspect.
So when, in May 2011, Portugal signed the MoU, it was precisely this reform that was on the table and the Troika demanded that the Portuguese government ‘expedite the implementation of the Judicial Reform Map creating thirty-nine court units, with added management support for each unit’ (MoU, 2011, p. 32). This implementation should have taken place until the end of 2012.
But, in the midst of financial and political turmoil, the government resigned, an early general election was called and a new government took office in June 2011: a coalition of centre-right parties. In November 2011, Law no. 52/2008 was abrogated and the reform was suspended, after two years in place. According to the minister of justice at the time, Paula Teixeira da Cruz, this suspension was due to the fact they deemed it necessary ‘to simplify judicial organization, possibly bringing it more in line with the remaining territorial organization of the public services’ (DGAJ, 2012, p. 6). Subsequently, a working group was formed, renegotiations with the Troika continued and proposals for a new reorganisation were made in a short two-year consultation period that was anything but serene, as reported on an almost daily basis by the national and local media (Santos, Reference Santos2014b).
It is, however, quite interesting to realise, almost ten years after implementation and eight years after abrogation, that the 2009 reform is still regarded by many, especially judges and prosecutors, and particularly those who worked in the pilot districts, to have been the ‘real reform’ and to have established the pillars that were later implemented in 2014, as shown by the excerpts below:
‘To begin with, I understand that the reform was not in 2014, but in 2009. It was in 2009 that we had the big reform of the judicial map.’Footnote 13
‘In the previous one I got to work as a judge in the pilot county of Baixo Vouga. … At that time, we felt it was very innovative, you know?’Footnote 14
As Garoupa (Reference Garoupa2012) pointed out, this judicial map did not close courts, but it sought different economies of scale in terms of human and physical resources by integrating the management of courts into territorial units that were broader than the traditional jurisdictions.
Then, in September 2014, Law no. 62/2013 (regulated by Decree-Law No. 49/2014Footnote 15 dated 27 March) was implemented, without any prior pilot, which turned out to be a very contentious issue.
2.2 2014: implementing a new judicial map
The new judicial map implemented in September 2014 was, like the 2009 judicial map, based on three main elements: a new territorial template, but this time based on the concentration of jurisdiction, which also implied the closure of a number of courts (unlike 2009); more specialised jurisdictions at the national level (an issue I will address later in this paper); and a new model of court management. The implementation process, as I mentioned earlier, was quite complex and problematic.
2.2.1 The territorial template and the closure of the courts
First, the reform reduced the thirty-nine comarcas planned in 2009, and recorded in the first version of the MoU in 2011, to twenty-three comarcas or court districts, with the administrative district as the territorial unit (thus abandoning the NUTS), where the ‘old’ unit formed by the courthouse became a division or section within the new unit (first called secção and now juízo). This implied the creation of a network of judicial services composed of central and local departments (the former courts, in the sense given until 1999, as I mentioned earlier), as well as judicial extensions called sections of proximity, devoid of judicial function, but which provide some judicial services, like hearing witnesses via videoconference or examining court documents.Footnote 16
Second, and one of the most criticised aspects of this reform, was the closure of twenty courts (and the conversion of twenty-seven other courts into sections of proximity) – a modest number compared with what happened in other European countries, but it is necessary to consider the particular characteristics and geography of the country, as well as the existing infrastructure (transportation, technology, buildings), particularly in inland and rural areas of the country (a topic I will examine in more detail later). Furthermore, the criteria used to support the closure of these courtsFootnote 17 was deemed insufficient and inappropriate, as judicial statistics – particularly the number of cases per judge and per court – were said to be inaccurate and merely respond to financial demands, as the following excerpts emphasise:
‘the estimations made … we didn't quite understand the rationale of closing down courts with such a low operating cost to the state, it was almost insignificant … we made the calculations. Especially when the municipalities, the vast majority of them, were keen to bear the costs of managing those courts. Which was already guaranteed, anyway.’Footnote 18
‘They said that it was a waste of resources, and in some places it probably was …. But they merely used a financial justification.’Footnote 19
According to mayors, magistrates, lawyers and court officials, this was a purely technocratic reform, with no regard for the consequences of the closure of the courts for the municipalities. In addition, the courts earmarked for closure were already operating on a very low budget, so the economic gains would be insignificant (BOA, 2015).
2.2.2 The management structure: improving the efficiency of justice
Third, a new management board was implemented for the entire court district, composed of a president judge (who oversees the judges and the whole of the judicial unit), prosecutor co-ordinator (who oversees the prosecutors and the entire prosecution service) and a court manager (who oversees the court officials). This new management structure follows a management-by-objectives model, established in advance for a three-year period by the High Council of the Judiciary and the General Prosecution Office.
The implementation of this management structure is regarded as a very positive feature of this reform – perhaps its key point – because this model increased flexibility in the use of resources, both human and material, simplifying the allocation and mobility of court structures. Previously, each court was an independent management unit. Currently, the court district is the unit, thus permitting a global outlook of both problems and resources, as it has to develop annual work plans, budgets and personnel requirements. As some of the interviewees stated, the way this management structure functions offers a snapshot of the whole of the comarca, by identifying problems, constraints and solutions:
‘The evaluation of constraints – and here we can speak of shortages of personnel, absences, sick leave, and equipment failure, which may seem minor things but which, in a court's day-to-day operations, are of great importance for and/or greatly disturb services – is in fact, within our capacity, much more easily resolved than one would think.’Footnote 20
‘The global image one has of the comarca … is different, it's completely different. Our concern is ensuring nothing fails and that everything within the court district is manageable, in terms of both human and material resources.’Footnote 21
The existence of a management body is thus seen as a fundamental aspect for improving the efficiency of justice and considered one aspect that has positively impacted the justice system,Footnote 22 not only in terms of its managerial execution, but also because it leads to a more efficient organisation of the system in terms of workload and backlog execution. The perception is that ‘things are working better’: ‘I have no doubt that today things are working better. Quite frankly, overall, I believe it's been really positive.’Footnote 23
This efficiency has positive impacts on case-load flow, as shown by official statistics from the Ministry of Justice.Footnote 24 As was recently announced (May 2019), the number of cases pending before the courts of first instance in the fourth quarter of 2018 decreased by 12.6 per cent with respect to the fourth quarter of 2017, following the trend observed in 2016 (–13.3 per cent) and 2017 (–13.2 per cent). This corresponds to a procedural resolution or clearance rate of above 100 per cent (131.3 per cent in 2016, 128.2 per cent in 2017 and 124.6 per cent in 2018), making it the sixth consecutive year with a positive clearance rate. This result is due to the fact that the number of completed cases (–8.3 per cent compared to 2017) has exceeded the number of new cases (–4.7 per cent compared to 2017).
This is also highlighted by the interviewees, who claim that ‘now things are moving’ noticeably:
‘and then I am confronted with the numbers. There were caseloads that were congested and now things are moving!’Footnote 25
‘The caseload is doing well, it has decreased. The number of pending cases has fallen by half. … Completed cases have increased.’Footnote 26
In addition, and according to the 2017 EU Justice Scoreboard,Footnote 27 Portugal had the second highest clearance rate in 2015 – even though the reform had only recently been implemented (as for the EU Justice Scoreboard of 2018,Footnote 28 Portugal had the fourth highest clearance rate in 2016).
2.2.3 The implementation process
It is important to highlight that the implementation process gave rise to several problems (Dias and Gomes, Reference Dias and Gomes2018; Gaspar, Reference Gaspar2015; BOA, 2015), most notably the unavailability of the courts’ electronic platform (CITIUS), which crashed for about two months, with negative impacts on court procedures and workload (a problem that was solved a while back, although some complaints regarding technological performance remain); the incomplete physical migration of court cases from closed courts to concentrated ones during the implementation phase, with almost anecdotal incidents becoming headline news on a daily basis; and a shortage of human resources, such as judges, prosecutors and, particularly, court officials (this is still critical). As one of the interviewed lawyers emphatically declared:
‘It is a reform that should have been implemented firstly on an experimental basis, as it was being done – a reform was in place … it was showing results. But no … “Now let's get on with a new judicial map!”. And a new judicial map was implemented! The biggest problem was that nothing was prepared beforehand. Everything was improvised. The minister of justice was convinced she was going to do something extraordinary … but the files were wrapped up and transported using vans, buses, even bicycles [irony].’Footnote 29
One of the strongest points of contention concerning the implementation of the judicial map in 2014 was the lack of adequate court facilities. This was highly stressed during the interviews. The existing courthouse buildings were not prepared for this new organisation, since no new courthouses were built and the Ministry of Justice only carried out renovation work on some of the buildings, which were not ready by the time the reform came into effect. Moreover, many of the concentrated courts suffered from a shortage of space, mainly in terms of hearing rooms. A report issued by the judges’ union (ASJP, 2014) lamented that the implementation of the new judicial organisation aggravated existing problems in some courts, and in other courts created new problems. Moreover, given the shortage of facilities, some courts have been temporarily moved to containers, which offer poor working conditions and constitute an affront to users’ comfort and – we can even claim – dignity, as users of a public service like the justice system. Some claim this even compromises the rule of law:
‘We can't have a hearing in a container, otherwise we will not be respecting those who seek justice – and, in the eyes of a society, we are diminishing those who administer it, thus weakening the Rule of Law. … It is unacceptable that some courts still do not have toilets, are cold and uncomfortable or are falling to pieces. If the Assembly of the Republic was in ruins, what image would the other two branches of power have in the eyes of citizens?’Footnote 30
It should be noted that the annual reports of the current twenty-three comarcas have, since 2015, told of a series of ‘logistic dramas’ like those decried by this judge. These have contributed to some delays, due to the lack of courtrooms, but also interruptions in hearings, thus lowering the quality of the Portuguese justice system. The implementation of the judicial map in 2014 has therefore confirmed, from my point of view, the importance of courthouse design for the administration of justice – an issue that is seldom discussed.
As Dias and Gomes (Reference Dias and Gomes2018) have asserted, one of the most important and challenging reforms of the judicial system of the last decade was prepared, approved and implemented in a short period of time, without a full implementation plan and the necessary emergency measures to tackle the problems that have arisen, precisely because it was vital to have the reform implemented before the MoU expired, as otherwise the financial support would be affected.
2.3 2017: reopening the courts
In November 2015, a new centre-left government took office and, in May 2016, the new minister of justice, Francisca van Dunen, announced new measures to be implemented, which came to be enforced as of January 2017 (Law no. 40-A/2016Footnote 31 dated 22 December, regulated by Decree-Law No. 86/2016Footnote 32 dated 27 December). However, as was stressed, the core principles of the reform from 2014 were not to be changed and the measures to be enforcedFootnote 33 were part of a minimal programme, given the financial situation of the country.
As a result, the twenty courts that had been closed in 2014 were reopened in January 2017, but transformed into sections of proximity (juízos de proximidade), which, although not full courts in the traditional sense (they function as judicial extensions), do perform some judicial services; in particular, local hearings in criminal proceedings now have to be conducted there, as a rule. On the other hand, these measures also concerned the specialised sections of family and juvenile justice. Thus, seven new family sections were created and, to alleviate geographical distance, jurisdictional competence on this matter was transferred to a number of local sections, in cases where the geographical characteristics and poor public transportation in the territory discouraged, according to the legislator, the creation of specialised sections for family and juvenile justice.
In April 2019,Footnote 34 new measures were adopted that have enhanced those implemented in 2017. Thus, new specialised sections were created, along with specialised sections in municipalities where they did not exist or where only sections of generic competence existed. At the same time, some sections of proximity were transformed into local court departments, thus upgrading their status.
According to the ministry's official statistics,Footnote 35 since January 2017, more than 1,000 trials have been conducted in these sections of proximity, along with other judicial services that have been provided, thus attesting to the importance and necessity of the measures implemented. Hence, two years after the implementation of these changes, the sentiment is quite positive, particularly regarding the reopening of the courts, as suggested by this court official: ‘From the conversations I've had with my colleagues, I was told these proximity sections that have now been reopened meet the demands of the population.’Footnote 36
The current geographical location of Portuguese courts, as I have described in this section, is therefore a result of the changes that took place between 2014 (to a certain extent, there is some overlap between the 2009 and 2014 reforms) and 2017. These changes, however, occurred within a context where external and internal political factors have played a major role – an issue I will deal with in the next section.
3 The political background of the reforms: external and internal strains
The reforms of the judicial map in Portugal in 2014 and 2017 were, initially, instigated by a single driving force: the obligation to comply with the conditions imposed by the Troika (at the risk of being sanctioned) and the demands or requirements these external financial lenders required to improve the functioning of the judicial system, and ultimately the economy. A second factor was the internal political pressure at the local level.
During the initial stage, which was linked to external pressures (and the reform implemented in 2014), there were two issues at stake. First, we are confronted with the exercise of transnational powers by agents such as the experts of the World Bank or the International Monetary Fund, whose objective is to promote a neoliberal agenda, pushing forward a number of reforms in key sectors. Hence, the reformation of justice systems to ensure economic exchange under the headings of stability, certainty and security confirm a clear political orientation (Commaille, Reference Commaille2015). This was clearly perceived by the agents involved, as confirmed by one of the mayors interviewed: ‘I recognise that Portugal was at the time under the international financial assistance plan, and we were committed to, or coerced into I would say, implementing the reform.’Footnote 37
At the same time, and driven by the need to comply with the conditionalities imposed by the external lenders, the Portuguese government leveraged the MoU to carry out a wider and deeper reform than previously agreed in the first version (and which had been negotiated with the resigning socialist government in May 2011). Indeed, as the representative from the former centre-right Ministry of Justice admitted:
‘The [MoU's] planned actions required the gradual extension of the pilot regions, which could be halted via the extraordinary meetings we had with the monitoring committee for the justice sector, which required a sectorial renegotiation that went unnoticed to public opinion.’Footnote 38
The proposed reorganisation was not just a simple modification of the territorial configuration of the new comarcas; it aimed instead at a radical change of paradigm regarding the organisation and functioning of the judicial system (DGAJ, 2012). According to the same interviewee, this restructuration of the judiciary was misunderstood because it was too radical.
The MoU thus offered an almost unique window of opportunity (Ribeiro Correia and Videira, Reference Ribeiro Correia and Videira2015). Hence, the suspension of the pilot reform and the renegotiation with the Troika of a new judicial organisation under the MoU perfectly illustrate Moury and Standring's (Reference Moury and Standring2017) argument: that centre-right ministers exploited the memorandum to pass unpopular measures, thus advancing their own agenda.
The secrecy of the negotiations and the fact that the reform process was planned by the ministry without presenting relevant information to support its agenda (Moury and Standring, Reference Moury and Standring2017; Dias and Gomes, Reference Dias and Gomes2018) gave rise to great discontent and demonstrationsFootnote 39 by local authorities and populations before the implementation of the reform in 2014, by means of public protests, precautionary measures and popular actions called by the municipalities against the closure of the courts. These demonstrations were later channelled by the main opposition parties in their electoral programmes during the legislative election campaign in 2015 and the reopening of the closed courts was seen as a necessary measure for the readjustment of the judicial map.
This brings us to the second stage: the adjustments implemented in 2017 and internal political pressures. These new measures, however, were met with disapproval by some sectors – and, this time, not only at an internal, but also an external, level. Nationally, this adjustment was regarded as merely fulfilling a political pledge instead of reflecting any exhaustive assessment of the previous reform or a structural reform plan for the future (Dias and Gomes, Reference Dias and Gomes2018). This was reflected in the interviews, as the following excerpts illustrate:
‘I think there was a need to make geographical changes …. But they didn't want to do that, and they did the worst thing that could be done: they convened with the most powerful and influential mayors, and they opened something that's court-like.’Footnote 40
‘It was rearranged to respond – and I will say this very briefly – to the local political powers.’Footnote 41
These arguments are counteracted first by the mayors, who welcomed the measures and saw them as ‘timely and necessary’Footnote 42; and, second, by current government officials, who claim these measures are producing positive results:
‘The indicators that we have are positive and come mainly from those who are the representatives of the municipalities, the mayors, who are closer to the populations of these territories, who appreciated and continue to welcome the measures implemented.’Footnote 43
At a supranational level, the International Monetary Fund, in a document issued in September 2016,Footnote 44 expressed some apprehensions, arguing that ‘the authorities should put on hold the reinstatement of courts and expansion of services pending a full consideration of a detailed cost-benefit analysis with the overall objective to bring the number of courts more closely in line with the European average’ (of circa 2.37 courts per 100,000 inhabitants). Faced with this reasoning, the representative of the current Ministry of Justice argued that Portugal remains a sovereign country and is well aware of the measures implemented and their minimal budgetary impact, while suggesting that a supportive international context was to be taken into account as well: ‘we are absolutely convinced that the adjustments are correct and that they do not imply any budgetary imbalance …. The [positive] international situation is clearly also relevant in this case.’Footnote 45
The Portuguese redefinitions of the judicial map fittingly illustrate how external and internal political forces and obligations influence the geographical location of courts and, subsequently, affect access to local justice, impacting territories and populations, as I will examine in the next section.
4 Expressing the geography of justice: examining geographic access to justice
It is therefore crucial to examine geographic access to justice. In generic terms, access to justice is based on the skills of professionals, but it is also based on the geographical and logistical conditions in which the judicial services operate (Noreau, Reference Noreau2009). One of the judges put it clearly: ‘Geography forms the basis of many critical situations in this country, and to close our eyes to the geographical/cultural differences ultimately conditions the magistrate's own worldview, his/her way of deciding.’Footnote 46
Thus, the justice system must respect, within its geographic area, the diverse socio-economic realities and resulting problems. Baxter and Yoon (Reference Baxter and Yoon2014) argue that debates about the geography of access need to be reframed around the question of ‘territorial justice’, understood as the equitable distribution of legal services in the territory. However, as the authors highlight, there has been a tendency to privilege uniformity over a valid recognition of local context and regional differences (Baxter and Yoon, Reference Baxter and Yoon2014) – an issue raised by one the interviewed lawyers: ‘this is one of the difficulties of the reform: it viewed the country as if it was homogeneous. And the country being considered uniform, the judicial map also had to have equal rules for the whole territory. Big mistake!’Footnote 47
Hence, it is often assumed that the entire judicial response will be identical in the whole territory, which Economides (Reference Economides2012) refutes, since the application of the law, due to the way judicial services are geographically organised and catered for, can work quite differently in metropolitan and non-metropolitan contexts. Consequently, reforming the judicial map should not lead to the ‘geographical neglect’ of populations by the judicial system (Dias and Gomes, Reference Dias and Gomes2018). Hence the question: what effects did the territorial redefinitions of the Portuguese justice system have in terms of geographical access to justice? This question requires that we discuss the impacts of (1) the new territorial unit, which involves discussing the issue of (2) concentration of jurisdiction. This is, of course, linked to (3) the closure of the courts. But it is also tied to (4) the symbolic presence of courts in the territory, particularly in terms of the application of (penal) justice at the local level. Moreover, the reopening of the courts and (5) the conflict between specialisation and proximity of jurisdictions, particularly in terms of family justice, is also critical and demands a closer look.
4.1 The challenges of the new comarca
As we know, the 2014 reform of the judicial map created a new territorial template based on the court district. This was, nonetheless, a highly criticised decision, as the new judicial district is seen as a particularly broad geographical unit, posing a number of issues. The first of these was the effective management of infrastructure in the territory. Since many of the new comarcas work on an extremely vast territorial scale, they become particularly complicated to manage, because the court departments are geographically dispersed throughout the court district's territory, as pointed out by the interviewees:
‘The difficulties are the extensive territorial area, the costs, the geographic dispersion.’Footnote 48
‘We have districts that have huge territorial areas. And in terms of court management, they may be too large [to manage].’Footnote 49
Second, this administrative unit is no longer used in other public territorial templates (like health care) and therefore considered anachronistic (Gaspar, Reference Gaspar2015), thus going against the reasoning invoked by the former minister of justice above. Furthermore, as Dias and Gomes (Reference Dias and Gomes2018) highlight, this disconnect between territorial templates further reinforces the distance between populations and territories.
Finally, this territorial template is said to increase territorial inequalities. Tomé Galo (Reference Tomé Galo2015) argued that the extension of the comarcas increased the asymmetries between justice in the metropolitan centres on the Atlantic axis, better equipped with human and logistic resources, and justice inland, where there are fewer resources. This results in a geography of justice at different paces, with the coastal and urban areas well served in terms of judicial services, while inland and rural areas lose access to these services, thus conditioning access to justice for citizens living in such territories (Gomes, Reference Gomes2013). This view was backed by the representative of the current Ministry of Justice, who said: ‘The reform implemented in September 2014 failed, in my opinion, because it chose … a very broad territorial scale, considering the reality of our territory and level of infrastructure.’Footnote 50
Within this framework, a number of issues are to be considered. What costs are generated by geographical distance in terms of access to courts? One important aspect involved is infrastructural, as the last interviewee argued. Not only do we need to take into account the distance travelled to get to the respective court; we also need to consider the costs involved, as well as the existence or absence of an accessible and reliable transportation system in the territory served. This point was stressed by some of the interviewees, who claimed bus schedules often did not coincide with court hours:
‘Even before this last change [2017], I was in Baião, and the court was in Paredes, and it took people a long time to get there. There were no daily buses, and the bus schedules were crazy!’Footnote 51
‘We know that in many places people still cannot get to the court [and back home] on the same day …. If people do not have a court nearby … that may mean a decrease in the demand for justice, it may mean that people do not take the initiative to defend their rights, precisely because of the burden it places on them.’Footnote 52
Thus, and as this prosecutor warns us, a critical cartography of the justice system helps to explain the impact that the absence or presence of judicial structures has on the construction of social conflict, by making conflicts invisible, as they end up not being processed by the judiciary, due in large part to its form of territorial organisation (and associated structural capacity, such as transport) (Avritzer et al., Reference Avritzer2014). This was actually voiced by one of the interviewees, who claimed people were reluctant to file credit claims due to geographic distance:
‘My colleagues tell me that sometimes people call to talk to the prosecutor to file a credit claim, and when they realize that they have to go to Montemor, and they live in Oliveira do Hospital, or in Lousã, and there is no transport or they have to use a taxi at their own expense … they decide not to go.’Footnote 53
As this last excerpt emphasises, the professionals have reported examples of abnormal court locations and displeased users (Dias and Gomes, Reference Dias and Gomes2018). This means that, in spite of the gains in efficiency and timeliness as shown by the official statistics mentioned earlier and corroborated by the interviewees, the new territorial template has constrained access to the courts, making them geographically distant.
Nevertheless, as van Dijk and Dumbrava (Reference Van Dijk and Dumbrava2013) argue, the physical presence of parties and other trial participants such as witnesses is now seen as less important as the implementation of information technology, particularly videoconferencing, is increasingly becoming routine practice. Thus, the use of technology (ICT) in the courts is seen as alleviating geographical distance. Yet ICT is in many cases deficient, as the interviewees complained: ‘We must consider the fact that the IT platform and IT equipment are not sufficient, nor are they of sufficient quality to address the existing requirements and needs.’Footnote 54
According to the prosecutor co-ordinator interviewed, not all courthouse buildings are prepared to implement ICT and this throws the operation of the justice system off balance, lending weight to Tomé Galo's (Reference Tomé Galo2015) argument discussed earlier: that territorial inequalities in the provision of justice services increased. The 2014 reform has undoubtedly impacted access to justice by centralising the supply of justice, thus distancing courts from the populations living in the peripheries of the central municipalities – supporting Economides's (Reference Economides2012) argument concerning the centre-periphery tensions in legal practice. And, in many situations, ICT is incapable of providing alternatives or solutions. These discrepancies in terms of court location and the technological capacity of the judicial system explain the varying levels of access to justice between territories.
4.2 Losing the courthouse: political and socio-economic impacts
Fix-Fierro (Reference Fix-Fierro2003) argues that the territorial distribution of courts consists of two important aspects. One is the sociological dimension, which refers to the social factors that condition a particular judicial map; the other is the political dimension, which refers to the connections between the courts and the authority and legitimacy of the state apparatus in the territory.
If we examine the changes introduced by the judicial map in 2014, and particularly the territorial template, this new comarca is said to feature a heterogeneous territorial design, failing to take territorial and social cohesion into account because it overlooked the territories as sociological entities (Gaspar, Reference Gaspar2015), hence the various demonstrations by local populations and local authorities against the closure of courts and centralisation.
Nevertheless, a contrasting opinion was also voiced. Some consider it is not appropriate to have a courthouse in every locality, and it would be unreasonable to keep courts with low case-loads operating (Rocha, Reference Rocha2015). This measure of closing some courts is therefore deemed a positive and indispensable feature of the reform, despite the negative effects for some of the territories and populations, for the most part on a microeconomic scale, as this lawyer argues:
‘We cannot have a court in every remote village in the country. There is no country where such a thing exists. The municipalities are important, of course … in fact the populations, especially those from the inland areas, have seen [other public services] axed … and the courts … well, it's still a way of life, it surely is. It ‘feeds’ the cafes, it ‘feeds’ the restaurants … but that cannot be the philosophy immanent to the courthouse! … what I'm about to say is extremely unpopular, but I'll say it anyway: they closed those courts, and it was a good measure!’Footnote 55
The main argument is that the judicial map must adapt to population growth, the difficulties imposed by the commuting movements of populations living in large city areas, an ageing society and migratory flows (Rocha, Reference Rocha2015). Nevertheless, and as the representative of the former Ministry of Justice recognised, the Ministry of Justice at the time had its share of responsibility because not only was it unable to conduct an adequate public awareness campaign, but it also failed to respond both to the fears of the local mayors, who saw ‘their’ courts closed, and to established corporative interests. Consequently, as this interviewee declared, there must be public awareness ‘that the judicial system is not there to justify employment within the judicial professions, but to serve the people (which does not mean that there must be a court in each place)’.Footnote 56
This notion of having a courthouse operating in each village of the country is, again, linked to the political dimension pointed out by Fix-Fierro (Reference Fix-Fierro2003), involving the relation between the courts and the presence of state apparatus in the territory. But this presence of state apparatus also intersects with the above-mentioned sociological dimension on two levels. One concerns the perceived symbolic loss that closing the court may entail for the affected locality (Commaille, Reference Commaille2015); this is tied to the new conception of comarca, which, in the view of the representative of the former Ministry of Justice, is capable of creating a different relation between the judiciary, the territory and the populations:
‘This scaling-up [of the territorial unit] … ended with this notion of “my” court, that is, the court of “my” county, which was replaced by another reality closer to the idea of “our” court, equivalent to the court of “our” district.’Footnote 57
The second level to be considered regarding the intersection between the political and the sociological dimensions concerns the societal value involved in administering justice locally, especially the role played by conducting criminal trials within the affected community. This means the impact of legal norms may vary according to ‘local legal cultures’ (Economides, Reference Economides2012). At the same time, adjudication requires local knowledge. This was underscored by one of the judges, who was quite sensitive to this issue and acknowledged that: ‘Geography conditions our judicial practices… and when the judge arrives in the comarca, he/she must be acquainted with it.’Footnote 58
Consequently, local conditions exert some influence on how law is interpreted, practised and delivered (Baxter and Yoon, Reference Baxter and Yoon2014).
By creating centralised court departments, the judicial map implemented in 2014 has overlooked this need to provide justice at the local level and what that means for remote communities and adjudication. The presence of the court embodies the bond between citizens and the state, and its existence serves to give people a sense of the concrete nature of justice (Branco, Reference Branco and Rebouças2016). This interplay between court location and judgment is clearly visible in the claims made by this lawyer, who contends that distance has negatively affected connections between the courts and the legitimacy of law enforcement in the territory:
‘For example, there are localities at the border of the county … located 110 km away from here [seat of the judicial county]. And if a homicide occurs, the symbolic, the representative, structuring character of society is lost because the trial now takes place here, which is something that is effectively aseptic, disconnected from the locale.’Footnote 59
Courts play an important role mediating between individuals and the state, serving as civic and social spaces within the community. The court provides a sense of being acknowledged by the state, but also provides reassurance to populations, often dealing with disputes that, although minor, are very important in day-to-day life. And this is a fundamental aspect one cannot ignore. Looking back at the reform, the representative of the former Ministry of Justice recognised that this was ‘a serious strategic error’. Reaffirming the impracticality and ineffectiveness of having courts in every municipality, this interviewee, nonetheless, is sensitive to the legal expectations and demands of more remote populations, asserting that the reform should have established a complementary system of conflict resolution at the municipal level: ‘a peripheral jurisdiction … to ensure [state] proximity in all minor cases … and leaving more complex litigation to the courts of first instance.’Footnote 60
As we know, the judicial institution is already perceived as distant by citizens. Nonetheless, as geographical distance may exacerbate this figurative distance, we risk facing an absence of effective access to justice. In this respect, the tensions between centre and periphery, between coastal line and inland territories, and between rural and urban areas must be taken into account, as the concentration/centralisation of the courts in the territory, creating large territorial units, may lead to the existence of ‘judicial deserts’ and unmet legal needs (Dias and Gomes, Reference Dias and Gomes2018), as discussed in the previous subsection.
Some form of balance is definitely required. Although I agree it is necessary to change the judiciary's organisation to make it more efficient, accountable and responsive to a changing and increasingly technological society (Ng, Reference Ng2011), the concern regarding access and proximity to justice remains, as the implementation of the reform in 2014 demonstrated. Moreover, the symbolism involved in penal adjudication at the local level is still seen as fundamental and, although alternative dispute resolution may offer some answers, it may not always be the best solution. On the other hand, if the aim is to strengthen justice, then to distance justice from the populations definitely does not promote the proposed idea of the comarca as ‘our court’, as was suggested.
We also need to consider the impoverishment of the affected populations (Gaspar, Reference Gaspar2015). In that sense, another argument concerns the importance of having the courthouse in those localities as a means of territorial cohesion against depopulation. This was plainly stated by the representative of the current Ministry of Justice:
‘There wasn't much sensitivity to the brutality the closure of the courts represented for inland territories, the pernicious effect it entails in terms of desertification of the territory.’Footnote 61
Another aspect raised, intimately linked to this, concerns the economic value the court represents for the territories, as a driver of economic investment and new businesses, and the reform's failure to recognise the court as a local economic facilitator (Gaspar, Reference Gaspar2015). This was touched on by both of the mayors interviewed, suggesting that the microeconomic scale mentioned earlier may not be that trivial. Consequently, and as was expressed by the representative of the current Ministry of Justice, the 2017 adjustments aimed to correct the deficit in territorial, economic and social cohesion caused by the previous reform, thus preventing the desertification and remoteness of the inland rural areas.
4.3 Specialisation vs. proximity: a double-edged issue
The formation of this new territorial unit involved grouping several municipalities (concentration of jurisdiction), which means a significant number of cases are processed and brought to trial at the central level (central court departments). The general idea behind this model of concentration of jurisdictions has to do with savings (which means decreasing the costs of court buildings and rationalising the allocation of resources), ensuring the necessary number of judges/prosecutors/officials and enhancing timeliness (van Dijk and Dumbrava, Reference Van Dijk and Dumbrava2013). Thus, and concomitantly with the above-mentioned arguments, this concentration of jurisdiction is seen as a variable capable of enhancing the efficiency and performance of the justice system. Larger courts, with more judges, prosecutors and court officials, are also seen as more privileged and capable of fostering professional development (since professionals have to deal with more challenging cases) and the quality of justice (judgments may reflect a better understanding of the substantive content), whereas smaller courts are seen as more vulnerable. Backing this idea, one judge argued that it brings benefits in regard to court efficiency:
‘It's beneficial, it certainly is. The concentration of jurisdictions is really beneficial and effective in terms of the court's response. … with the centralization of jurisdiction, you go to a larger court, with more magistrates and more officials, which is fundamental in achieving the desired specialization of the courts.’Footnote 62
But the other side of the medal has to do with the possible conflict between specialisation and proximity. Shifting the focus to an organisational standard that is primarily concerned with achieving efficiency, timeliness and managerial effectiveness severely impacts the connections between the courts and the territory, as the implementation of the reform in 2014 evidenced. As a result, the 2017 readjustments aimed to correct the deficit in territorial proximity, as was mentioned, but also broaden the specialisation of the courts, particularly the specialised family and juvenile jurisdiction, with the creation of more specialised sections of family justice. But the problem was only solved in part, since the new measures transferred this competence to the local generic sections in the more remote municipalities.
This decision was met with antagonism. On the one hand, it was argued that the most distanced populations stood to gain in terms of access to justice but, on the other hand, that they would lose out in access to specialised justice. Some judges view this as a ‘civilisation setback’:
‘I think this “U-turn”, by transferring to the generic jurisdiction many of the competences that were once part of the specialized family and juvenile jurisdiction, was an absolute setback. I still say that, in choosing between specialization and proximity, I prefer a specialized judge even if the drawback is that it takes people a little longer to reach the court.’Footnote 63
Thus, the common argument among judges and prosecutors is that specialisation should be maintained and even extended, but not transferred to the generic competence:
‘I must confess I do not see much use in this. I think it was preferable to maintain the specialization of jurisdiction. Transferring it to the local sections, which do not have specialized expertise … I'm not saying that they aren't professionally competent …. By no means am I saying that the judges are not competent … but I still think that a specialized judicial response … I still think that the specialization of courts is a good bet … I'm not sure that a justice of proximity will be more effective.’Footnote 64
However, the argument raised by the current government official, as well as the lawyers, is that the value of the specialisation of jurisdiction is not unconditional and, in this respect, it is preferable to have a justice system closer to the population than a very skilled but geographically distant judiciary, particularly in family law.
For other interviewees, there could have been a mitigated solution – itinerant specialised courts that travelled to the local generic sections or proximity sections:
‘It would be preferable to have the court traveling to the locality, but for it to be a specialized court rather than being transferred to the local section.’Footnote 65
‘We have to think of forms of mobility for these courts.’Footnote 66
Nevertheless, not all agree with this proposal, and some are openly against court itinerancy: ‘it means a sacrifice for the judges who have to travel, at the expense of their performance and a timely response.’Footnote 67
This idea of sacrifice is, however, rebutted by other professionals, who consider it unwarrantable: ‘The judicial profession has a service to render … and it's ruled by the magistrates’ statute … and this statute … also serves to compensate for certain discomforts. I have always held this notion.’Footnote 68
I am inclined to agree with this last interviewee. Moreover, given the fact that each comarca has a management structure, this structure could have, within its managing powers, a more proactive role and advance feasible solutions that could be implemented in its territorial reach and be adapted to the respective problems. Indeed, as the interviewed court administrator reported, one solution could be electronic processing plus itinerancy, once hearings are necessary:
‘[the board] decided that it would be important that these cases, which fall within the competence of Cantanhede and Mira, are distributed in the respective sections, and then processed, now with the possibility of remote electronic processing, by the specialized magistrates and court officials.’Footnote 69
These measures would have no financial impact whatsoever, this interviewee asserted. In my opinion, this would be the way forward to enhance access to specialised justice.
Nevertheless, as this debate shows, the ideal degree of specialisation and proximity remains a hotly contested issue, especially at the level of the family and juvenile jurisdiction.
5 Concluding remarks
In Portugal, the last decade has been marked by a succession of reforms that seem to translate into a movement of ‘hop-on/hop-off’ reforms, with suspended pilots, closure of courts, concentration of jurisdictions, reopening of courts, specialisation and proximity of jurisdiction. And professionals and users alike have grown weary of the successive reforms – a never-ending story.
We are therefore faced with a changeable geography of justice at four levels.
First, at a political level, every single government seeks to leave a trace, or many traces, and, under the cloak of quality enhancement, each reform has clear political objectives, related to either external or internal forces. Hence, the reforms in Portugal attest to tensions between the supranational, national and local levels that need to be taken into account. If the reform implemented in 2014 aimed especially at responding to supranational requirements of market stability, under the headings of austerity, efficiency and competitiveness, the former government leveraged the MoU to adopt a more extensive set of measures than initially agreed. The measures recently implemented (2017) intended to respond to local pressure, reportedly as a way of compensating local populations and territories, but it seems as though there has been a kind of ‘return to the past’ – a revival of the reform initiated in 2009. Each of these reforms has reminded us that politics is never too far from the judicial institution, highlighting the relationship between the courts and the legislature, and the relative power of each.
At a corporative level, as the interviews have highlighted, each professional category has its own perceptions and opinions regarding the meaning of the quality of justice and what it implies, making it very hard to reach consensus in certain key areas, such as the specialisation and proximity of jurisdiction.
At the territorial level, the geography of justice and the geography of the country (coastal, inland, urban and rural zones) are seemingly in constant competition and, as a result, the ideal territorial scale remains in dispute. This is in turn associated with the ideal scale for courts at the local community level and the political and socio-economic impacts this has.
Finally, at the level of access to justice, as it stands, the issues of distance travelled and inadequate transport infrastructure in the territories served, the socio-economic difficulties of the population and the lack of a network of public dispute-resolution mechanisms (judicial and extrajudicial) make it difficult, in many situations, to achieve institutional proximity to the judiciary, limiting the conditions for the exercise of the right of access to courts and, ultimately, justice, as a guarantee of the effective protection of citizens’ rights.
