SUSPENSION OF JUDICIAL DEADLINES

Summary:

As result of the pandemic situation caused by SARS-CoV-2 coronavirus and COVID-19 disease, it was approved exceptional and temporary measures in Justice sector.

In the present Article, we proceed with a brief analysis about the temporary and exceptional legal regime of the suspension of judicial deadlines, since Law no. 1-A/2020, of March 19, until the most recent legal publication, Law no. 4-B/2021, of February 1.

Keywords: Covid-19, Suspension of Deadlines, Justice, Courts, Exceptional and Temporary measures.

 

1. Introduction

Following the epidemiological situation caused by the SARS-CoV-2 coronavirus and COVID-19 disease, it was approved exceptional and temporary measures in Justice sector, who’s main propose is to guarantee the access to law and courts to the defence of the rights and legal protected interests of all citizens, as established in Constitution of the Portuguese Republic.

In this regard, an exceptional and temporary regime was approved which established the suspension of court deadlines and the realization of judicial, administrative, procedures diligences, etc., object to successive and inherent implications in the conduct of legal acts, processes, and procedures, in the respective calculation of legal deadlines.

This Article mains to present a succinct analysis about the evolution of the exceptional regime of the suspension of judicial deadlines, since Law no. 1-A/2020, of March 19, until the most recent legal publication, Law no. 4-B/2021, of February 1.

 

2. The Evolution of the Exceptional Regime of Suspension of Judicial Deadlines

2.1 Law no. 1-A/2020, of March 19

The exceptional regime of suspension of judicial deadlines appeared, for the first time, with the publication of Law no. 1-A/2020, of March 19, whose effects were retroactive to March 9 of 2020, as stipulated in article 10 of the Law, in conjugation with article 37 of Decree-Law no. 10-A/2020, of March 10.

In this sense, article 7 of the referred Law determined, generally, the suspension of the deadlines for the following cases:

1. Processual and procedural acts within the scope of processes and procedures, in the judicial courts, administrative and tax courts, Constitutional Court, Court of Auditors and other jurisdictional entities, arbitration courts, Public Prosecutor’s Office, justice of the peace courts, alternative resolution of conflicts entities and tax enforcement entities;
2. Prescription and caducity deadlines applicable to all types of processes and proceedings, which shall be extended for the same period of time as the suspension;
3. Infractions, sanctions and disciplinary proceedings, and the respective acts and diligences which are in course in the services of the direct, indirect, regional and local government and other administrative entities, including independent administrative entities, such as the Bank of Portugal and the Real Estate Market Commission;
4. Administrative and tributary deadlines for particulars, the latest referring to acts of judicial appeal, administrative appeal, hierarchical appeal, or other procedures of identical nature, including deadlines for the practice of acts within the scope of the same tributary procedures;
5. Administrative and tributary deadlines for particulars, the latest referring to acts of judicial appeal, administrative appeal, hierarchical appeal, or other procedures of identical nature, including deadlines for the practice of acts within the scope of the same tributary procedures;
6. Eviction proceedings, special eviction procedures and the proceedings for delivery of leased property, when the tenant, due to the final judicial decision to be issued, may be placed in a situation of fragility due to lack of proper housing.

As an exception to the general regime of suspension of deadlines, the legislator understood that urgent cases would follow another type of rules.

In fact, the Law also established the rule of suspension of deadlines and proceedings in urgent cases, although with two exceptions to be considered, which implied their normal processing: i) whenever it was admitted the practice of any processual and procedural acts through adequate means of distance communication, namely by teleconference or video call and ii) when urgent acts and diligences were only performed in person where fundamental rights were at stake, namely procedural diligences concerning minors at risk or educational tutelary processes of an urgent nature, diligences and trials of imprisoned defendants, as long as the standards set by the health authorities and in accordance with the guidelines of the competent higher councils were observed.

 

2.2 Law no. 4-A/2020, of April 6

With the implementation of Law no. 4-A/2020, of April 6, the first amendment was made to Law no. 1-A/2020, of March 19, which added the following suspension situations:

1. Suspension of the deadline for insolvency of the debtor, established in article 18, no. 9 of the Insolvency and Corporate Recovery Code;
2. Performance of acts in executive proceedings, namely sales, creditors contest, judicial delivery of real property and attachment proceedings and their preparatory acts, except for those which cause serious loss to the subsistence of the creditor or whose non-performance would cause him irreparable loss, in accordance with article 137, no. 2, of the Code of Civil Procedure.

The general rule for the suspension of deadlines has also been amended so that:

1. The conduct of proceedings and the practice of non-urgent presential and non-presential acts when all parties agree that they have the conditions to ensure their practice through the appropriate IT platforms and/or means of distance communication that make them possible;
2. A final decision is taken in those cases for which no further steps are necessary, to be determined by the court or other competent entities.

Regarding urgent cases and their processing, it has been implemented:

1. The processes and procedures for the defence of rights, freedoms and guarantees injured or threatened with injury by any unconstitutional or illegal measures, referred to in article 6 of the Regime of the State of Siege and State of Emergency, regulated by Law no. 44/86, of September 30;
2. Urgent service, ensured by means of shifts in the courts, provided for in article 53, no 1, of the regime applicable to the organisation and functioning of the judicial courts, regulated by Decree-Law no. 49/2014, of March 27;
3. The processes, procedures, acts and diligences that prove necessary to avoid irreparable harm, namely processes concerning minors at risk or educational tutelary processes of an urgent nature and the diligences and trials of imprisoned defendants.

Finally, although the Law retroacts its effects to the date of March 9 of 2020, it should be noted that this solution didn’t cover the urgent cases and the acts exclusively carried out by electronic means regarding the attributions of the Portuguese Institute of Industrial Property, I.P., regime that became effective only on the date of the entry in effect of the Law, as foreseen in article 6.

 

2.3 Law no. 16/2020, of May 29

Law no. 16/2020, of May 29, once again introduced alterations in respect to the exceptional regime of the suspension of deadlines, reflected through the inclusion of article 6-A, namely removing the suspension of judicial deadlines and of the processes and procedures and diligences, specifying the form of counting the deadlines that were suspended.

In first place, the judicial deadlines, which were in course until 09.03.2020, restarted their counting on June 3 of 2020. Likewise, given the legitimate doubts that have emerged due to the way the rule was drafted, we conservatively consider that the deadlines whose initial term occurred during the suspension of deadlines, started counting on 3 June 2020.

Finally, the prescription and caducity deadlines that were no longer suspended were extended for the same period of time during which their suspension was in force and only resumed their respective count, after the expiry of that period, as provided in article 6 of this Law.

Nevertheless, exceptionally, the suspension has continued to operate in the following situations:

1. In the deadline for presentation of the debtor for insolvency, provided for in article 18, no. 1, of the Insolvency and Corporate Recovery Code;
2. In the acts to be performed in executive or insolvency proceedings related to the judicial delivery of the family home;
3. In eviction proceedings, special eviction procedures and proceedings for the delivery of leased property, when the tenant could be placed in a situation of frailty due to the lack of his own home or for other imperative social reason, by virtue of the final decision to be issued;
4. On the prescription and caducity periods regarding the processes and proceedings referred to in paragraphs a), b) and c);
5. In the limitation and prescription periods regarding the processes whose diligence couldn’t be done in accordance with the Law;
6. In cases where the acts to be performed in enforcement or insolvency proceedings regarding the judicial sale and delivery of real property are likely to cause injury to the subsistence of the debtor or the declared insolvent party, when requested by the latter, if they don’t cause serious injury to the subsistence of the creditor or irreparable damage.

On the other hand, in article 5 of this Law, and with regard to administrative deadlines, it was established that those deadlines whose original term had occurred during the suspension, would be considered due on the 20th working day after the entry into effect of this law, i.e. until 03.07.2020.

In addition, administrative deadlines whose original term would have occurred after the entry into effect of the law, and if the suspension had not taken place, were considered to have expired:

a) On the 20th working day after the Law becomes effective, that is, 03.07.2020, if they were due until that date;

b) On the date on which they were originally due if they are already due on a later date.

Finally, the regime of administrative deadlines described above didn’t applied to the deadlines of administrative phases in administrative infraction matters.

Between June 2020 and January 2021, the judicial, procedural and administrative procedures, as well as the associated deadlines, continued to be carried out, until the beginning of 2021 brought frightening numbers of hospitalisations and deaths, which led the country to a new State of Emergency.

With the outbreaks that occurred in the Courts and other public services, which were reported, and the Declaration of a State of Emergency, the Government was forced to resume the formula of early 2020 and to publish legislation regarding deadlines and procedures. Thus, on February 1 of 2021 was published Law no. 4-B/2021.

 

2.4 Law no. 4-B/2021, of February 1

Law no. 4-B/2021, of February 1, which entered effect on 02.02.2021, but became effective on 22.01.2021, has once again re-established the regime of suspension of processual and procedural deadlines resulting from the measures adopted in the scope of the pandemic caused by the SARS-CoV-2 coronavirus and the COVID-19 disease, amending Law no. 1-A/20200, of March 19.

Similarly to what happened in the first confinement, the general rule provided for in paragraph 1 of article 6-B, of the present Law, is based on the suspension of all deadlines for the practice of procedural and administrative acts, within the scope of processes and procedures that are underway in the judicial courts, administrative and tax courts, the Constitutional Court and entities that work with it, the Court of Auditors and other judicial entities, arbitration courts, the Public Prosecutor’s Office, justice of the peace courts, alternative resolution entities and tax enforcement entities, without prejudice to the processing by the judicial registries.

Also, the Law makes express reference to special situations:

1. Prescription and caducity deadlines for all processes and procedures, to which must be added the period of time during which the suspension applies;
2. The deadline for presentation of the debtor for insolvency, as provided for in article 18, no. 1, of the Insolvency and Company Recovery Code;
3. Acts to be performed in enforcement proceedings, with the exception of payments to be made to the creditor from the proceeds of the sale of seized assets, as well as acts which cause serious loss to the creditor’s subsistence or whose non-performance will cause irreparable damage to the creditor;
4. Acts to be carried out in executive or insolvency proceedings related to the implementation of diligent proceedings for the judicial transfer of the family home or the transfer of the leased property, namely within the scope of eviction proceedings, special eviction procedures and proceedings for the transfer of leased property, when a decision has been passed confirming that such acts place the tenant or former tenant in a situation of fragility due to lack of their own home or for other imperative social reasons;
5. Between 01.01.2021 and 31.03.2021, tax enforcement proceedings in progress or that may be initiated by the Tax and Customs Authority, Social Security and other entities.

For exceptions to the general rule, the suspension regime doesn’t apply:

1. In non-urgent proceedings which are in progress in the courts of first instance, when all parties accept it and expressly declare to have conditions to ensure its practice through the IT platforms that allow it to be carried out electronically or through appropriate means of distance communication, namely teleconference, video call or other equivalent. It means that in case of silence of one of the Parties, there will be no continuity in the proceeding;
2. In non-urgent proceedings regarding the interposition of an appeal, pleading of nullities, or requesting the rectification or reform of the decision, when a final decision is made in the processes and proceedings in which the court and other entities understand that it is not necessary to carry out new diligences;
3. In non-urgent proceedings before higher courts, as long as it is not necessary to carry out presential acts or, if it is necessary to carry out such acts, when all parties expressly accept and declare it, under the terms referred to in paragraph a) above;
4. In the processes and proceedings to defend the rights, freedoms and guarantees injured or threatened to be injured by any unconstitutional or illegal measures, referred to in article 6 of the Regime of the State of Siege and State of Emergency, regulated by Law no. 44/86, of September 30;
5. In the processes, proceedings, acts and diligences that prove to be necessary to avoid irreparable damage or damage difficult to repair, such as the proceedings related to minors in danger or educational guardianship proceedings of an urgent nature and the proceedings and trials of imprisoned defendants. In this sense, the present Law has reinforced the obligation of prison establishments to fulfil the necessary conditions so that defendants can confer in person with defendants in the preparation of their defence, as stipulated in number 13 of article 6-B;
6. In the processes for prior supervision by the Court of Auditors;
7. In the processes and procedures relating to the election of the President of the Republic, held on January 24 of 2021.

Regarding the practice of procedural acts, as provided in article 6-C, suspension occurs in the following cases:

1. Proceedings which are being dealt with in Notarial Offices and Registry offices;
2. Misdemeanour, sanction and disciplinary proceedings, including acts of judicial appeal against final or interlocutory decisions, which are being conducted in direct, indirect, regional and local government services, and other administrative entities, namely independent administrative entities, including the Competition Authority, the Insurance and Pension Funds Supervisory Authority, the Bank of Portugal and the Securities Market Commission, as well as those which are being conducted in public professional associations;
3. Administrative and tax proceedings about the practice of acts by particulars.

Finally, as stipulated in the article under review, the following deadlines aren’t suspended:

1. In special administrative procedures qualified by law as urgent;
2. In the competitive procedures within the scope of the magistrature provided for in the respective statutes, as well as in administrative procedures for entry into the magistrature;
3. In public contract procedures;
4. In the auction procedure for granting rights of use of frequencies;
5. Acts carried out exclusively by electronic means within the attributions of the National Institute of Industrial Property, I.P;
6. Acts which aren’t the responsibility of the individual and administrative procedures not listed in paragraphs a) and b), of number 1 of article 6-C;
7. Acts which are the duty of the Tax and Customs Authority, Social Security and other entities and are carried out in tax procedures;
8. Acts which are the responsibility of the particular and must be carried out in tax procedures, except for the interposition of a judicial appeal, administrative appeal, hierarchical appeal or other procedures of an identical nature, as well as the processual or procedural acts subsequent to those.

 

3. Conclusion

The legislator has once again come to intend to mitigate the effects of the pandemic in judicial areas and/or areas where there are processes and procedures that are not considered urgent or that don’t excessively affect the rights of citizens so as to avoid agglomerations of people in Courts and other public services.

However, once again, several interpretative doubts arise because of the deficiencies regarding the redaction of the legal norms. Namely, paragraph 5 of article 6-B of Law no. 4-B/2021, of February 1, which apparently creates a distinction in the application of the suspension of deadlines to appeals to be submitted against final decisions. In other words, it results from the literal meaning that the deadlines of any appeals to be filed from final decisions issued after the Law became effective will not be subject to the suspension of deadlines; instead, the deadlines of appeals to be filed from final decisions which were issued before January 22 of 2021 will apparently be suspended. In addition, the letter of article 6-B, no 5, of the above-mentioned Law doesn’t include cases of counter appeals, so, since there is no express reference to this article, the legislator seems to have understood that it wouldn’t be included in the regime explained in it.

As a precaution, it would be preferable not to consider deadlines suspended to protect rights of appeal against final decisions made either before or after the Law became effective.

An identical situation arises with regard to enforcement proceedings, where it was determined that the general rule of suspension should be applied, except for the possibility of payments which must be made to the creditor from the proceeds of the sale of seized assets or acts which cause serious harm to the creditor’s subsistence. By allowing these two hypotheses, consequently and logically, any other means of reaction in enforcement proceedings will be admissible, namely any opposition to enforcement, opposition to seizure, applications for exemption from and/or reduction of the seizure, etc., enabling the guarantee of fulfilment of the contradictory principle and equality between the parties to be assured.

This being so, it will be appropriate to consider the normal course of enforcement proceedings whenever it is possible to ensure that the respective acts are carried out, regardless of whether they are urgent or not.

Also to be highlighted in this Article is the situation regarding prescription and caducity deadlines for all processes and procedures, provided for in article 6-B, no. 3, of the referred Law, since the legislator seems to exclude the substantive deadlines that require intervention from the citizen for the protection of their rights at the courts (for example, civil liability actions).

Finally, about the application of the regime of the suspension of limitation periods in the scope of criminal law, the legislator should have effectively restricted the letter of the law to avoid extensive interpretations.

In fact, the Jurisprudence has been pronounced on this point, namely in the Judgement of the TRL, of 21.07.2020, Proc. no. 76/15.6SRLSB.L1-5, concluding that the principle of non-retroactivity of the Criminal Law is protected and the exceptional regime of suspension of the statute of limitations is inapplicable, allowing the defendant to benefit from a legal framework that is more favourable to them, determining only and exclusively the suspension of the statute of limitations in the terms listed in article 125 of the Criminal Code.

It is true that these extraordinary times and the need to quickly respond to all the challenges caused by the SARS-CoV-2 virus and the COVID-19 disease may not allow the necessary acuity and objectivity in obtaining the best solutions for daily life. However, it is essential that this type of legislation, which directly affects citizens access to the courts and consequently access to justice, is as clear and objective as possible. If times are already, in themselves, confusing, the role of the law will be to assist the citizen and not to confuse him even more.