Quality of Democracy
#13Key Findings
With a highly legalistic society, Portugal falls into the upper-middle ranks (rank 14) with regard to its quality of democracy. Its score in this area is unchanged relative to its 2014 level.
Electoral policies are generally fair. The campaign-finance monitoring body does not have sufficient resources to accomplish its assigned tasks. Racist and fascist parties are banned. Referenda are rare, but participatory budgeting processes are used at both the local and national levels.
Financial pressures have increased volatility in media ownership. A broad range of government information is available to citizens, but it is often unorganized and difficult to understand. Civil and political rights are generally well protected. Bureaucratic inefficiencies occasionally produce serious infringements of personal rights.
Gender and racial discrimination remain moderate concerns, with the gap between average pay for women and men having increased steadily in recent years. A new anticorruption strategy has been adopted, but is viewed as insufficient by corruption activists. Courts are independent and strong.
Electoral policies are generally fair. The campaign-finance monitoring body does not have sufficient resources to accomplish its assigned tasks. Racist and fascist parties are banned. Referenda are rare, but participatory budgeting processes are used at both the local and national levels.
Financial pressures have increased volatility in media ownership. A broad range of government information is available to citizens, but it is often unorganized and difficult to understand. Civil and political rights are generally well protected. Bureaucratic inefficiencies occasionally produce serious infringements of personal rights.
Gender and racial discrimination remain moderate concerns, with the gap between average pay for women and men having increased steadily in recent years. A new anticorruption strategy has been adopted, but is viewed as insufficient by corruption activists. Courts are independent and strong.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Individuals and political parties enjoy largely equal opportunities, both de jure and de facto, to register for and run in elections. Parties espousing racist, fascist or regionalist values are all constitutionally prohibited, as are parties whose names are directly related to specific religions.
While individual citizens can run in municipal elections, they are barred from contesting legislative elections, where only registered political parties can present candidates. The requirements for registering a party are relatively onerous. To be formed, parties must acquire the legally verified signatures of 7,500 voters. Moreover, they must ensure that their internal party rules and statutes are aligned with the political-party law (Lei dos Partidos Políticos), which requires that parties’ internal operations must conform to “the principles of democratic organization and management” (Article 5) and feature several internal bodies (Articles 24 – 27).
However, these requirements do not prevent parties from forming and contesting elections. During the period under review, one new political party was formally registered: Volt Portugal in June 2020. The January 2022 legislative elections will be contested by 22 different lists, one more than in 2019 and the highest total yet since democratization.
Citations:
On the laws see, for example, Eleição da Assembleia da República 1 / Outubro/1995: Legislação eleitoral actualizada e anotada (Lisbon: STAPE/MAI, 1995); and Lei dos Partidos Políticos (Political Party Law) – Lei Orgânica n.º 2/2003, de 22 de Agosto, com as alterações introduzidas pela Lei Orgânica n.º 2/2008, de 14 de Maio.
For the registration of parties, see: Tribunal Constitucional, “Partidos registados e suas denominações, siglas e símbolos,” available online at: http://www.tribunalconstitucional.pt/tc/partidos.html
While individual citizens can run in municipal elections, they are barred from contesting legislative elections, where only registered political parties can present candidates. The requirements for registering a party are relatively onerous. To be formed, parties must acquire the legally verified signatures of 7,500 voters. Moreover, they must ensure that their internal party rules and statutes are aligned with the political-party law (Lei dos Partidos Políticos), which requires that parties’ internal operations must conform to “the principles of democratic organization and management” (Article 5) and feature several internal bodies (Articles 24 – 27).
However, these requirements do not prevent parties from forming and contesting elections. During the period under review, one new political party was formally registered: Volt Portugal in June 2020. The January 2022 legislative elections will be contested by 22 different lists, one more than in 2019 and the highest total yet since democratization.
Citations:
On the laws see, for example, Eleição da Assembleia da República 1 / Outubro/1995: Legislação eleitoral actualizada e anotada (Lisbon: STAPE/MAI, 1995); and Lei dos Partidos Políticos (Political Party Law) – Lei Orgânica n.º 2/2003, de 22 de Agosto, com as alterações introduzidas pela Lei Orgânica n.º 2/2008, de 14 de Maio.
For the registration of parties, see: Tribunal Constitucional, “Partidos registados e suas denominações, siglas e símbolos,” available online at: http://www.tribunalconstitucional.pt/tc/partidos.html
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Parties have access to broadcast time on television and radio for political purposes during the official campaign period of two weeks preceding an election. This time is divided equally among the parties, according to the number of candidates they present. Parties need to present lists in at least 25% of electoral districts, and field a total number of candidates equal to at least one-quarter of the total number of possible candidates, to qualify for these broadcasts. These short broadcasts (lasting a maximum of three minutes for each party) air during prime-time, and have a non-negligible audience.
If one considers media access more broadly, access to news programs and political debates is overwhelmingly concentrated on the parties that have parliamentary representation. Television news coverage, which is popular in terms of TV ratings and is the predominant source of information for the Portuguese, is heavily concentrated on them.
If one considers media access more broadly, access to news programs and political debates is overwhelmingly concentrated on the parties that have parliamentary representation. Television news coverage, which is popular in terms of TV ratings and is the predominant source of information for the Portuguese, is heavily concentrated on them.
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
All adult citizens are guaranteed the right to participate in national elections. The government also provides transportation to those requiring it. Citizens in hospitals and in jails are also able to vote, with assistance provided as necessary, and provision is made for Portuguese citizens living abroad to cast their ballots.
Foreign citizens residing in Portugal are entitled to register to vote in local elections if they are from EU member states, or from Brazil, Cape Verde, Argentina, Chile, Colombia, Iceland, Norway, New Zealand, Peru, Uruguay and Venezuela. Brazilian citizens can also request a statute of equal rights and duties, which grants them the right to vote in legislative elections.
As per previous SGI reports, the substantial inflation of the electoral register remains problematic, generating a problem of technical abstention. Estimates ahead of the 2022 legislative elections indicated that there are potentially 1 million more people on voter registration lists for Portugal than there are in the voting age population, potentially inflating the electoral register by 10%.
As noted in previous reports, this difference appears to reflect the failure of Portuguese emigrants registered to vote in Portugal to transfer their electoral registration to their overseas residence. As Portuguese voters can only vote in the administrative parish (or, if abroad, in the country) in which they are formally registered, this means that a substantial proportion of Portuguese emigrants are unable to exercise their voting rights.
This issue was partially addressed with the approval in parliament of Law 3/2018. With this law, Portuguese citizens officially residing abroad are automatically registered to vote.
This had a positive effect on the 2019 elections. Thus, the number of registered Portuguese voters in Switzerland increased from just 9,457 in the 2015 legislative elections to 146,795 in the 2019 legislative elections.
However, as also noted in previous reports, this does not fully resolve the issue, as technical abstentions are largely the result of Portuguese emigrants registered to vote in Portugal failing to update their address (and electoral registration) to their overseas residence following emigration.
However, it must be noted that this discrepancy is not due to legal barriers to registration. Both within and outside Portugal, electoral registration is a simple and non-exclusionary process.
Citations:
Lei Orgânica nº 3/2018 [Law no. 3/2018], available online at: https://dre.pt/application/conteudo/116090196
Ledo, W. (2022), “Legislativas: há um milhão de “eleitores-fantasma” a engordar a abstenção,” CNN Portugal, available online at: https://cnnportugal.iol.pt/decisao-22/eleicoes-legislativas/legislativas-ha-um-milhao-de-eleitores-fantasma-a-engordar-a-abstencao/20220102/61cdca340cf2cc58e7da26e6
Foreign citizens residing in Portugal are entitled to register to vote in local elections if they are from EU member states, or from Brazil, Cape Verde, Argentina, Chile, Colombia, Iceland, Norway, New Zealand, Peru, Uruguay and Venezuela. Brazilian citizens can also request a statute of equal rights and duties, which grants them the right to vote in legislative elections.
As per previous SGI reports, the substantial inflation of the electoral register remains problematic, generating a problem of technical abstention. Estimates ahead of the 2022 legislative elections indicated that there are potentially 1 million more people on voter registration lists for Portugal than there are in the voting age population, potentially inflating the electoral register by 10%.
As noted in previous reports, this difference appears to reflect the failure of Portuguese emigrants registered to vote in Portugal to transfer their electoral registration to their overseas residence. As Portuguese voters can only vote in the administrative parish (or, if abroad, in the country) in which they are formally registered, this means that a substantial proportion of Portuguese emigrants are unable to exercise their voting rights.
This issue was partially addressed with the approval in parliament of Law 3/2018. With this law, Portuguese citizens officially residing abroad are automatically registered to vote.
This had a positive effect on the 2019 elections. Thus, the number of registered Portuguese voters in Switzerland increased from just 9,457 in the 2015 legislative elections to 146,795 in the 2019 legislative elections.
However, as also noted in previous reports, this does not fully resolve the issue, as technical abstentions are largely the result of Portuguese emigrants registered to vote in Portugal failing to update their address (and electoral registration) to their overseas residence following emigration.
However, it must be noted that this discrepancy is not due to legal barriers to registration. Both within and outside Portugal, electoral registration is a simple and non-exclusionary process.
Citations:
Lei Orgânica nº 3/2018 [Law no. 3/2018], available online at: https://dre.pt/application/conteudo/116090196
Ledo, W. (2022), “Legislativas: há um milhão de “eleitores-fantasma” a engordar a abstenção,” CNN Portugal, available online at: https://cnnportugal.iol.pt/decisao-22/eleicoes-legislativas/legislativas-ha-um-milhao-de-eleitores-fantasma-a-engordar-a-abstencao/20220102/61cdca340cf2cc58e7da26e6
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party funding oversight lies with the Constitutional Court (Tribunal Constitucional), which has a specific independent body tasked with monitoring party financing and accounts – the Entidade das Contas e Financiamentos Políticos (ECFP). There are two main sources of funds for political parties. First, the state provides funding to all parties that received vote shares above a certain threshold in previous elections (over 100,000 votes in the case of legislative elections). Second, parties receive private contributions, which must be registered with the electoral commissions of each of the parties at the local, regional and national levels.
Parties’ annual accounts and separate electoral-campaign accounts are published on the ECFP website and are scrutinized by this entity, albeit with considerable delay. For instance, the reports and decisions regarding the party accounts in 2017 were published in August 2020.
As noted in previous SGI reports, ECFP reviews do identify irregularities and/or illegalities. However, sanctions for infractions are relatively small and infrequent.
A 2012 study examining oversight of party accounts – based on interviews with both the ECFP and party representatives – noted that the ECFP lacked resources, which limited its capacity to monitor party and election funding fully.
In the last edition of the SGI, we noted that this situation appeared to have worsened during 2018 due in part to changes to the party financing law, which came into effect in that year. These measures increased the ECFP’s responsibilities, without increasing its resources (particularly staff numbers). In its report at the end of its four-year term, the ECFP noted that there were 82 situations that warranted sanction but which it was unable to pursue because the statute of limitations had already expired. In this report, the ECFP noted once again that the legal changes of 2018 had not been accompanied by the addition of sufficient human resources to allow the ECFP to carry out all its assigned tasks.
Citations:
Botelho, L. (2021), “Nova Lei do Tribunal Constitucional fez prescrever 82 processos de multas a partidos,” Público, available online at: https://www.publico.pt/2021/10/22/politica/noticia/nova-lei-tribunal-constitucional-fez-prescrever-82-processos-multas-partidos-1982156
Entidade das Contas e Financiamentos Políticos (2021), “Mandato 2017-2021 – Balanço,” available online at: https://www.tribunalconstitucional.pt/tc/file/Relatório%20mandato%202017-21.pdf?src=1&mid=6615&bid=5282
Financiamento dos Partidos Políticos e das Campanhas Eleitorais – legislation, available online at: http://www.parlamento.pt/legislacao/documents/legislacao_anotada/financiamentopartidospoliticoscampanhaseleitorais_anotado.pdf
Parties’ annual accounts and separate electoral-campaign accounts are published on the ECFP website and are scrutinized by this entity, albeit with considerable delay. For instance, the reports and decisions regarding the party accounts in 2017 were published in August 2020.
As noted in previous SGI reports, ECFP reviews do identify irregularities and/or illegalities. However, sanctions for infractions are relatively small and infrequent.
A 2012 study examining oversight of party accounts – based on interviews with both the ECFP and party representatives – noted that the ECFP lacked resources, which limited its capacity to monitor party and election funding fully.
In the last edition of the SGI, we noted that this situation appeared to have worsened during 2018 due in part to changes to the party financing law, which came into effect in that year. These measures increased the ECFP’s responsibilities, without increasing its resources (particularly staff numbers). In its report at the end of its four-year term, the ECFP noted that there were 82 situations that warranted sanction but which it was unable to pursue because the statute of limitations had already expired. In this report, the ECFP noted once again that the legal changes of 2018 had not been accompanied by the addition of sufficient human resources to allow the ECFP to carry out all its assigned tasks.
Citations:
Botelho, L. (2021), “Nova Lei do Tribunal Constitucional fez prescrever 82 processos de multas a partidos,” Público, available online at: https://www.publico.pt/2021/10/22/politica/noticia/nova-lei-tribunal-constitucional-fez-prescrever-82-processos-multas-partidos-1982156
Entidade das Contas e Financiamentos Políticos (2021), “Mandato 2017-2021 – Balanço,” available online at: https://www.tribunalconstitucional.pt/tc/file/Relatório%20mandato%202017-21.pdf?src=1&mid=6615&bid=5282
Financiamento dos Partidos Políticos e das Campanhas Eleitorais – legislation, available online at: http://www.parlamento.pt/legislacao/documents/legislacao_anotada/financiamentopartidospoliticoscampanhaseleitorais_anotado.pdf
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
The institution of referendums exists at national and local levels. However, while citizens can propose referendums, the referendum itself takes place only if there is agreement from political officeholders. In the case of national-level referendums, the Assembly of the Republic or the government must propose the referendum to the president, and the president must accept this proposal. Citizens can propose local referendums, but the local Municipal Assembly can decide whether to call these referendums or not.
In practice, referendums are rare in Portugal. There have been only three national referendums in Portugal since the transition to democracy, with the most recent having been held in 2007. Local referendums are also rare. There were two scheduled in 2020 (one of which was canceled due to the pandemic), the first to take place since 2012. Had both 2020 local referendums gone ahead, the total number since the return to democracy would have increased from five to seven.
Participatory budgets are widely used in Portugal, both at local and national levels. The country is now a world leader in terms of the implementation participatory governance mechanisms and the Costa government was the first worldwide to introduce national-level participatory budgets in 2016/17.
Petitions can be submitted to the Assembly of the Republic. This does not allow for referendums, but it does create more opportunity for public input into political decisions.
At the local level, Portugal has instituted a non-party-political mechanism, the Group of Citizen Electors (GCE) that enables groups of citizens to run for local-level offices. In this manner, there is, as stated above, “more opportunity for public input into political decisions.”
Citations:
Borges, L. (2020), “Em 46 anos de democracia, só se realizaram cinco referendos locais,” Público, available online at: https://www.publico.pt/2020/08/17/politica/noticia/46-anos-democracia-so-realizaram-cinco-referendos-locais-1928198
Público (2018), “Orçamentos participativos espalham-se pelo mundo, com Portugal na dianteira,” available online at: https://www.publico.pt/2018/10/22/politica/noticia/orcamentos-participativos-espalhamse-mundo-portugal-dianteira-1848283
https://www.peticaopublica.com/info/legislation.aspx
artigo 48.º, n.º 1, da CRP e artigo 16.º, n.º 1, al. c
In practice, referendums are rare in Portugal. There have been only three national referendums in Portugal since the transition to democracy, with the most recent having been held in 2007. Local referendums are also rare. There were two scheduled in 2020 (one of which was canceled due to the pandemic), the first to take place since 2012. Had both 2020 local referendums gone ahead, the total number since the return to democracy would have increased from five to seven.
Participatory budgets are widely used in Portugal, both at local and national levels. The country is now a world leader in terms of the implementation participatory governance mechanisms and the Costa government was the first worldwide to introduce national-level participatory budgets in 2016/17.
Petitions can be submitted to the Assembly of the Republic. This does not allow for referendums, but it does create more opportunity for public input into political decisions.
At the local level, Portugal has instituted a non-party-political mechanism, the Group of Citizen Electors (GCE) that enables groups of citizens to run for local-level offices. In this manner, there is, as stated above, “more opportunity for public input into political decisions.”
Citations:
Borges, L. (2020), “Em 46 anos de democracia, só se realizaram cinco referendos locais,” Público, available online at: https://www.publico.pt/2020/08/17/politica/noticia/46-anos-democracia-so-realizaram-cinco-referendos-locais-1928198
Público (2018), “Orçamentos participativos espalham-se pelo mundo, com Portugal na dianteira,” available online at: https://www.publico.pt/2018/10/22/politica/noticia/orcamentos-participativos-espalhamse-mundo-portugal-dianteira-1848283
https://www.peticaopublica.com/info/legislation.aspx
artigo 48.º, n.º 1, da CRP e artigo 16.º, n.º 1, al. c
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Public and private media are independent of the government’s influence, as mandated by the constitution of 1976. The media are regulated by the Entidade Reguladora da Comunicação Social (ERC). Four of the five members of the ERC board are appointed by a qualified majority of two-thirds of parliament, and the fifth member – who normally becomes the ERC’s head – is selected by the other four members.
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Portugal’s media market is competitive and relatively diversified. There are four free broadcast-television networks – one public (RTP, with four channels) and two private (SIC and TVI) – each of the latter owned by a different media conglomerate (Impresa and Media Capital). In the aftermath of the transition to digital television, the Portuguese Assembly’s own channel, ARTV (previously only available on cable), was also added to the roster of free channels.
The national cable television news channels, once restricted to offerings from the RTP and SIC groups, have diversified since 2009 and there are now at least four major players: RTP, SIC, TVI and CMTV.
The newspaper market has shown diversification, with several leading groups emerging. The Global Media Group holds several relevant titles, notably Jornal de Notícias (a leading daily in northern Portugal) and Diário de Notícias (another leading newspaper, which became weekly in mid-2018). The Impresa group held several print outlets, its flagship being the influential Expresso weekly. In January 2018, the Impresa group sold all its titles, except Expresso, to a new group, called Trust in News. This sale included the Visão weekly news magazine.
Meanwhile, the Sonae group is behind another influential title, the daily Público. Cofina Media owns the Correio da Manhã tabloid and the daily Jornal de Negócios financial newspaper, while Newsplex owns The Sol weekly (renamed as Nascer do Sol in December 2020) and “i” daily. There is also an online daily newspaper, called Observador, which has a classical liberal orientation, as set out in its editorial statutes. A new weekly newspaper called Novo was launched by Lapanews in April 2021.
This diversity results in a degree of pluralism. At the same time, most media outlets – notably newspapers – face considerable financial challenges.
These financial challenges contribute to the considerable volatility in media-ownership patterns.
Citations:
Observador, “Estatuto Editorial,” available online at: http://observador.pt/estatuto-editorial/
The national cable television news channels, once restricted to offerings from the RTP and SIC groups, have diversified since 2009 and there are now at least four major players: RTP, SIC, TVI and CMTV.
The newspaper market has shown diversification, with several leading groups emerging. The Global Media Group holds several relevant titles, notably Jornal de Notícias (a leading daily in northern Portugal) and Diário de Notícias (another leading newspaper, which became weekly in mid-2018). The Impresa group held several print outlets, its flagship being the influential Expresso weekly. In January 2018, the Impresa group sold all its titles, except Expresso, to a new group, called Trust in News. This sale included the Visão weekly news magazine.
Meanwhile, the Sonae group is behind another influential title, the daily Público. Cofina Media owns the Correio da Manhã tabloid and the daily Jornal de Negócios financial newspaper, while Newsplex owns The Sol weekly (renamed as Nascer do Sol in December 2020) and “i” daily. There is also an online daily newspaper, called Observador, which has a classical liberal orientation, as set out in its editorial statutes. A new weekly newspaper called Novo was launched by Lapanews in April 2021.
This diversity results in a degree of pluralism. At the same time, most media outlets – notably newspapers – face considerable financial challenges.
These financial challenges contribute to the considerable volatility in media-ownership patterns.
Citations:
Observador, “Estatuto Editorial,” available online at: http://observador.pt/estatuto-editorial/
To what extent can citizens obtain official information?
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Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
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Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
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Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
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Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Free and readily available access to official information is guaranteed by Article 48, subsection 2 of the 1976 constitution, and mechanisms exist to ensure that this does in fact happen. There are extensive legal provisions providing guarantees for access to official information. Additional support is supplied by the Aarhus Convention of the European Union, which was signed on 25 July 1998 and ratified by Portugal on 7 September 2003. The government has recently put virtually all official information and requirements such as permits and licenses online. This information can be readily accessed through home computers and without cost in a wide variety of public places such as municipal libraries. The Commission on Access to Administrative Documents (Comissão de Acesso aos Documentos Administrativos, CADA), established in 1995, deals with complaints regarding public access to information.
The access to government documents is guaranteed in Law 26/2016. At the local level, the population generally has access to government information, documents and more through freely available computers at the local library or at government offices.
However, it should also be noted that, while information is available, it is often not well organized. Moreover, it is often not clear even to educated citizens, let alone to citizens with lower educational attainments. This renders citizens’ de facto ability to obtain information less effective than their de jure ability.
The Portuguese government has expanded and improved its Simplex system, giving people access to more information, including much that concerns the government, than was previously available.
Citations:
Lei n.º 26/2016 – Diário da República n. º 160/2016, Série I de 2016
www.ministeriopublico.pt/iframe/sistema-de-informacoes-da-republica-portuguesa
www.simples.gov.pt
The access to government documents is guaranteed in Law 26/2016. At the local level, the population generally has access to government information, documents and more through freely available computers at the local library or at government offices.
However, it should also be noted that, while information is available, it is often not well organized. Moreover, it is often not clear even to educated citizens, let alone to citizens with lower educational attainments. This renders citizens’ de facto ability to obtain information less effective than their de jure ability.
The Portuguese government has expanded and improved its Simplex system, giving people access to more information, including much that concerns the government, than was previously available.
Citations:
Lei n.º 26/2016 – Diário da República n. º 160/2016, Série I de 2016
www.ministeriopublico.pt/iframe/sistema-de-informacoes-da-republica-portuguesa
www.simples.gov.pt
Graph View
To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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9
9
All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
8
7
6
7
6
The state respects and protects rights, with few infringements. Courts provide protection.
5
4
3
4
3
Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
2
1
1
State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
The Portuguese constitution of 1976 defines broad categories of rights and guarantees for the population in articles 12 – 23 and 24 – 27. This is generally also the case in practice. However, poorer elements of society, as in any country, tend to lack the educational, legal and other means to take full advantage of these guarantees. Moreover, the justice system continues to be very slow, which also reduces its ability to effectively protect citizens.
During the previous review period, the government of Portugal passed a law – the National Strategy for Equality – to increase the social and political rights of citizens. The law includes several strategic objectives to be achieved by 2030 and three action plans to implemented by 2021. The law focuses on promoting gender equality, preventing domestic violence, and combating discrimination on the grounds of sexual orientation and gender identity.
In 2020, two interim reports were published on the Strategy for Equality’s plan for combatting violence against women and domestic violence, and on its plan for combatting discrimination on the grounds of sexual orientation and gender identity. In both cases, the reports noted that 88% of planned measures had been implemented. However, the impact of these educational measures will take time to percolate through to changes in attitudes and behaviors.
Citations:
CIG, Portugal mais Igual, available online at: https://www.cig.gov.pt/estrategia-nacional-para-a-igualdade-e-a-nao-discriminacao-2018-2030-portugal-igual/
https://dre.pt/home/-/dre/115360036/details/maximized
During the previous review period, the government of Portugal passed a law – the National Strategy for Equality – to increase the social and political rights of citizens. The law includes several strategic objectives to be achieved by 2030 and three action plans to implemented by 2021. The law focuses on promoting gender equality, preventing domestic violence, and combating discrimination on the grounds of sexual orientation and gender identity.
In 2020, two interim reports were published on the Strategy for Equality’s plan for combatting violence against women and domestic violence, and on its plan for combatting discrimination on the grounds of sexual orientation and gender identity. In both cases, the reports noted that 88% of planned measures had been implemented. However, the impact of these educational measures will take time to percolate through to changes in attitudes and behaviors.
Citations:
CIG, Portugal mais Igual, available online at: https://www.cig.gov.pt/estrategia-nacional-para-a-igualdade-e-a-nao-discriminacao-2018-2030-portugal-igual/
https://dre.pt/home/-/dre/115360036/details/maximized
To what extent does the state concede and protect political liberties?
10
9
9
All state institutions concede and effectively protect political liberties.
8
7
6
7
6
All state institutions for the most part concede and protect political liberties. There are only few infringements.
5
4
3
4
3
State institutions concede political liberties but infringements occur regularly in practice.
2
1
1
Political liberties are unsatisfactory codified and frequently violated.
Under the regime that ruled Portugal until 1974, there were virtually no political liberties. The basic goal of the political transition was to achieve and guarantee political liberties. Portugal has been successful in this regard, and widely agreed-upon political liberties are now in place and respected. The basic legislation in the constitution, and subsequent regular legislation, guarantees these political liberties. They function generally well. If there are any lapses, they are due more to bureaucratic inefficiency rather than a conspiracy by the Portuguese government.
However, these lapses can be quite serious. For instances, it was revealed in 2021 that the Lisbon city government had shared the protest organizers’ personal details with the entities that were being protested against. For example, this led to information about activists protesting against their governments being shared with those governments’ embassies, including the embassies of Russia, China, Iran and Saudi Arabia, among others. In consequence, the National Authority for Data Protection (Comissão Nacional de Protecção de Dados, CNPD) fined the city government €1.2 million, criticizing the municipality’s “evident disorganization.”
Constitutional restrictions forbid the existence of racist and fascist organizations. Likewise, the penal code criminalizes discriminatory propaganda, as well as the promotion or denial of genocide and racial discrimination. This does not in practice preclude the emergence of such groups, such as the Portugal Hammerskins; but they are very small, and generally well controlled by the police.
While the pandemic led to a declaration of a state of emergency, the associated legislation does not allow for the restriction of political freedoms. The law on the state of emergency stipulates that “the meetings of statutory bodies of political parties, unions and professional associations will in no case be prohibited, dissolved or submitted to prior authorization” during a state of emergency (Article 2 of Law 44/86).
Portugal has a very permissive framework for religions, and the right to worship is protected for every religious community.
Citations:
DN (2021), “Dados enviados à Rússia. Câmara de Lisboa multada em 1,2 milhões de euros,” available online at: https://www.dn.pt/sociedade/dados-enviados-a-russia-camara-de-lisboa-multada-em-12-milhoes-de-euros-14491499.html
Público (2021), “Câmara de Lisboa enviou dados para a Rússia 27 vezes. Israel, Angola e China também receberam informações,” available online at: https://www.publico.pt/2021/06/24/sociedade/noticia/camara-lisboa-enviou-dados-russia-27-vezes-israel-angola-china-tambem-receberam-informacoes-1967745
However, these lapses can be quite serious. For instances, it was revealed in 2021 that the Lisbon city government had shared the protest organizers’ personal details with the entities that were being protested against. For example, this led to information about activists protesting against their governments being shared with those governments’ embassies, including the embassies of Russia, China, Iran and Saudi Arabia, among others. In consequence, the National Authority for Data Protection (Comissão Nacional de Protecção de Dados, CNPD) fined the city government €1.2 million, criticizing the municipality’s “evident disorganization.”
Constitutional restrictions forbid the existence of racist and fascist organizations. Likewise, the penal code criminalizes discriminatory propaganda, as well as the promotion or denial of genocide and racial discrimination. This does not in practice preclude the emergence of such groups, such as the Portugal Hammerskins; but they are very small, and generally well controlled by the police.
While the pandemic led to a declaration of a state of emergency, the associated legislation does not allow for the restriction of political freedoms. The law on the state of emergency stipulates that “the meetings of statutory bodies of political parties, unions and professional associations will in no case be prohibited, dissolved or submitted to prior authorization” during a state of emergency (Article 2 of Law 44/86).
Portugal has a very permissive framework for religions, and the right to worship is protected for every religious community.
Citations:
DN (2021), “Dados enviados à Rússia. Câmara de Lisboa multada em 1,2 milhões de euros,” available online at: https://www.dn.pt/sociedade/dados-enviados-a-russia-camara-de-lisboa-multada-em-12-milhoes-de-euros-14491499.html
Público (2021), “Câmara de Lisboa enviou dados para a Rússia 27 vezes. Israel, Angola e China também receberam informações,” available online at: https://www.publico.pt/2021/06/24/sociedade/noticia/camara-lisboa-enviou-dados-russia-27-vezes-israel-angola-china-tambem-receberam-informacoes-1967745
How effectively does the state protect against different forms of discrimination?
10
9
9
State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
8
7
6
7
6
State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
5
4
3
4
3
State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
2
1
1
The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
State policies seek to redress discrimination and cases of overt discrimination are rare. Moreover, Portugal has been a signatory to the International Covenant on Civil and Political Rights since October 1976. As the report noted below indicates, Portugal is recognized for having a low level of discrimination.
Nevertheless, two areas of concern remain.
First, the gap between average pay for women and men has proved persistent. While the gender pay gap fell from 16.0% in 2015 (above the EU-27 average of 15.5%) to 8.9% in 2018 (vs. 14.4% in the EU-27), the data in 2019 indicates a projected deterioration to 10.6%, well above the levels in the 2000s, when it stood at 8.5% in 2007.
Second, racial discrimination remains a concern. The Commission for Equality and Against Racial Discrimination (CICDR) received and analyzed 665 complaints regarding racial discrimination in 2020, an increase of some 50% compared to 2019 and almost six times the level of 2017 (119). This is the highest number since at least 2000.
As in the previous SGI review period, the current period was marked by cases of apparent discrimination, which gained considerable media traction. The most tragic was that of Ihor Homeniuk, a Ukrainian citizen who was detained at the border crossing in Lisbon airport and killed by Portugal’s Border Control (SEF) officers while in detention in March 2020. The case was uncovered in November 2020, and received extensive media coverage. As a result, three SEF officers involved were tried and convicted. Moreover, the SEF’s institutional failings over this case accelerated calls for the service to be dismantled, with parliament narrowly giving its approval in 2021, with support from the PS and BE. However, this measure had not yet been implemented as of the time of writing.
Citations:
Comissão para a Igualdade e Contra a Discriminação Racial, “Relatório Anual 2020,” available online at: https://www.cicdr.pt/documents/57891/0/Relatório+Anual+2020+-+CICDR.pdf/522f2ed5-9ca6-468e-b05d-f71e8711eb12
Pordata, Disparidade salarial entre homens e mulheres, available online at: https://www.pordata.pt/Europa/Disparidade+salarial+entre+homens+e+mulheres-3560
Nevertheless, two areas of concern remain.
First, the gap between average pay for women and men has proved persistent. While the gender pay gap fell from 16.0% in 2015 (above the EU-27 average of 15.5%) to 8.9% in 2018 (vs. 14.4% in the EU-27), the data in 2019 indicates a projected deterioration to 10.6%, well above the levels in the 2000s, when it stood at 8.5% in 2007.
Second, racial discrimination remains a concern. The Commission for Equality and Against Racial Discrimination (CICDR) received and analyzed 665 complaints regarding racial discrimination in 2020, an increase of some 50% compared to 2019 and almost six times the level of 2017 (119). This is the highest number since at least 2000.
As in the previous SGI review period, the current period was marked by cases of apparent discrimination, which gained considerable media traction. The most tragic was that of Ihor Homeniuk, a Ukrainian citizen who was detained at the border crossing in Lisbon airport and killed by Portugal’s Border Control (SEF) officers while in detention in March 2020. The case was uncovered in November 2020, and received extensive media coverage. As a result, three SEF officers involved were tried and convicted. Moreover, the SEF’s institutional failings over this case accelerated calls for the service to be dismantled, with parliament narrowly giving its approval in 2021, with support from the PS and BE. However, this measure had not yet been implemented as of the time of writing.
Citations:
Comissão para a Igualdade e Contra a Discriminação Racial, “Relatório Anual 2020,” available online at: https://www.cicdr.pt/documents/57891/0/Relatório+Anual+2020+-+CICDR.pdf/522f2ed5-9ca6-468e-b05d-f71e8711eb12
Pordata, Disparidade salarial entre homens e mulheres, available online at: https://www.pordata.pt/Europa/Disparidade+salarial+entre+homens+e+mulheres-3560
Graph View
To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
10
9
9
Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
8
7
6
7
6
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
5
4
3
4
3
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
2
1
1
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Portugal is an extremely legalistic society. Legislation is abundant, prolix and complex. Moreover, combined with an ever-present pressure for reform arising from Portugal’s structural problems and a political tradition for new governments to dismiss the measures of previous governments, legislation is also subject to frequent changes.
The combination of overabundant and changing legislation with comparatively weak mechanisms for policy implementation further accentuates legal uncertainty.
The combination of overabundant and changing legislation with comparatively weak mechanisms for policy implementation further accentuates legal uncertainty.
To what extent do independent courts control whether government and administration act in conformity with the law?
10
9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
7
6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
The judicial system is independent and works actively to ensure that the government conforms to the law.
The highest body in the Portuguese judicial system is the Supreme Court, which is made up of four civil chambers, two criminal chambers and one labor chamber. There is also a disputed-claims chamber, which tries appeals filed against the decisions issued by the Higher Judicial Council. The Supreme Court judges appeals on the basis of matters of law rather than on the facts of a case, and has a staff of 60 justices (conselheiros). There are also district courts, appeal courts and specialized courts, as well as a nine-member Constitutional Court that reviews the constitutionality of legislation. In addition, there is a Court of Auditors (Tribunal de Contas), which is also a constitutionally prescribed body and is defined as a court under the Portuguese legal system. This entity audits public funds, public revenues and expenditures and public assets, all with the aim of ensuring that “the administration of those resources complies with the legal order.”
The number of judges in 2020 stood at 1,731, a slight decrease vis-à-vis 2017 (1,771). This number has risen from the early 1990s (from around 1,000) to 2008 (1,712). Since 2008, the number of judges has remained relatively stable, reaching a peak in 2013 (1,816). Nevertheless, there remains a shortage of judges in relationship to the number of outstanding cases, which creates delays within the system. The European Commission’s 2021 Rule of Law Report on Portugal finds that there are still concerns with regard to human resources in the judicial system. It also notes that while the system has become more efficient, shortcomings remain in the administrative and tax courts.
Citations:
European Commission (2021), “2021 Rule of Law Report: Country Chapter on the rule of law situation in Portugal,” available online at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021SC0723&from=EN
Pordata, “Magistrados judiciais: total e por sexo,” available online at: https://www.pordata.pt/Portugal/Magistrados+judiciais+total+e+por+sexo-1703
The highest body in the Portuguese judicial system is the Supreme Court, which is made up of four civil chambers, two criminal chambers and one labor chamber. There is also a disputed-claims chamber, which tries appeals filed against the decisions issued by the Higher Judicial Council. The Supreme Court judges appeals on the basis of matters of law rather than on the facts of a case, and has a staff of 60 justices (conselheiros). There are also district courts, appeal courts and specialized courts, as well as a nine-member Constitutional Court that reviews the constitutionality of legislation. In addition, there is a Court of Auditors (Tribunal de Contas), which is also a constitutionally prescribed body and is defined as a court under the Portuguese legal system. This entity audits public funds, public revenues and expenditures and public assets, all with the aim of ensuring that “the administration of those resources complies with the legal order.”
The number of judges in 2020 stood at 1,731, a slight decrease vis-à-vis 2017 (1,771). This number has risen from the early 1990s (from around 1,000) to 2008 (1,712). Since 2008, the number of judges has remained relatively stable, reaching a peak in 2013 (1,816). Nevertheless, there remains a shortage of judges in relationship to the number of outstanding cases, which creates delays within the system. The European Commission’s 2021 Rule of Law Report on Portugal finds that there are still concerns with regard to human resources in the judicial system. It also notes that while the system has become more efficient, shortcomings remain in the administrative and tax courts.
Citations:
European Commission (2021), “2021 Rule of Law Report: Country Chapter on the rule of law situation in Portugal,” available online at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021SC0723&from=EN
Pordata, “Magistrados judiciais: total e por sexo,” available online at: https://www.pordata.pt/Portugal/Magistrados+judiciais+total+e+por+sexo-1703
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
5
4
3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
The Constitutional Court is comprised of 13 judges, who serve for non-renewable nine-year terms. Of these, 10 are selected by parliament on the basis of a two-thirds parliamentary majority. This generally means that the selection of judges requires, at least, an agreement between the PS and PSD, as the two largest parties together make up more than two-thirds of parliament. Typically, there is no other parliamentary configuration that can secure a two-thirds majority. In November 2021, four new judges were elected, three of whom had been nominated by the PSD and one by the PS. That said, the PS and PSD have in the past voted to appoint other parties’ nominees (e.g., Clara Sottomayor, nominated by the BE in 2016; and Fátima Mata-Mouros, nominated by the CDS in 2012), depending on political equilibria. The remaining three Constitutional Court judges are co-opted by the 10 judges elected by parliament. Six of the 13 judges must be chosen from judges in other courts; the others can be jurists.
While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.
Citations:
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).
While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.
Citations:
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Under Portuguese law, abuse of position is criminalized. However, as elsewhere, corruption persists despite the legal framework. A 2012 assessment of the Portuguese Integrity System by the Portuguese branch of Transparency International concluded that the “political, cultural, social and economic climate in Portugal does not provide a solid ethical basis for the efficient fight against corruption,” and identified the political system and the enforcement system as the weakest links of the country’s integrity system.
While efforts have been made at the state level to tackle corruption – and it is an oft-discussed topic – there remains considerable room for improvement in terms of the implementation of anti-corruption plans.
The Council of Europe’s Group of States against Corruption (GRECO) interim compliance report published in April 2021 found that Portugal had satisfactorily implemented only three of the 15 recommendations published in 2016 (an improvement of two relative to 2019), with seven partially implemented (eight in 2019). The remaining five had not been implemented (six in 2019). The report assesses this as “only minor progress.”
In April 2021, the government approved a National Anticorruption Strategy for 2020-2024. This was revised in parliament during negotiations between the PS and the PSD, and was unanimously approved in parliament in November 2021. It is as yet too early to assess any results, but the government’s strategy was not warmly received by the Portuguese branch of Transparency International, which called it “clearly insufficient.”
Citations:
Diário da República n.º 66/2021, Série I de 2021-04-06, páginas 8 – 49, Resolução do Conselho de Ministros n.º 37/2021, available online at: https://dre.pt/dre/detalhe/resolucao-conselho-ministros/37-2021-160893669
GRECO (2021), “Fourth Evaluation Round – Second Interim Compliance Report Portugal,” available online at: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a21605
RTP (2021), “Pacote anticorrupção aprovado por unanimidade no Parlamento,” available online at: https://www.rtp.pt/noticias/politica/pacote-anticorrupcao-aprovado-por-unanimidade-no-parlamento_v1364522
Transparência e Integridade (2021), “Transparência e Integridade quer corrupção política e lavagem de dinheiro no centro da estratégia anti-corrupção,” available online at: https://transparencia.pt/corrupcao-politica-lavagem-dinheiro-estrategia-nacional-combate-corrupcao/
While efforts have been made at the state level to tackle corruption – and it is an oft-discussed topic – there remains considerable room for improvement in terms of the implementation of anti-corruption plans.
The Council of Europe’s Group of States against Corruption (GRECO) interim compliance report published in April 2021 found that Portugal had satisfactorily implemented only three of the 15 recommendations published in 2016 (an improvement of two relative to 2019), with seven partially implemented (eight in 2019). The remaining five had not been implemented (six in 2019). The report assesses this as “only minor progress.”
In April 2021, the government approved a National Anticorruption Strategy for 2020-2024. This was revised in parliament during negotiations between the PS and the PSD, and was unanimously approved in parliament in November 2021. It is as yet too early to assess any results, but the government’s strategy was not warmly received by the Portuguese branch of Transparency International, which called it “clearly insufficient.”
Citations:
Diário da República n.º 66/2021, Série I de 2021-04-06, páginas 8 – 49, Resolução do Conselho de Ministros n.º 37/2021, available online at: https://dre.pt/dre/detalhe/resolucao-conselho-ministros/37-2021-160893669
GRECO (2021), “Fourth Evaluation Round – Second Interim Compliance Report Portugal,” available online at: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a21605
RTP (2021), “Pacote anticorrupção aprovado por unanimidade no Parlamento,” available online at: https://www.rtp.pt/noticias/politica/pacote-anticorrupcao-aprovado-por-unanimidade-no-parlamento_v1364522
Transparência e Integridade (2021), “Transparência e Integridade quer corrupção política e lavagem de dinheiro no centro da estratégia anti-corrupção,” available online at: https://transparencia.pt/corrupcao-politica-lavagem-dinheiro-estrategia-nacional-combate-corrupcao/