Civil Procedure Code at Cape Verde
The Civil Procedure Code of Cape Verde (Código de Processo Civil) is the primary legal framework governing civil litigation in Cape Verde. The country follows a civil law system, which is influenced by Portuguese legal tradition. The Civil Procedure Code outlines the procedures for initiating, conducting, and concluding civil legal disputes, including matters related to contracts, torts, family law, inheritance, and property.
Key Features of the Civil Procedure Code in Cape Verde
1. Court System and Jurisdiction
Courts: The civil procedure in Cape Verde is administered by a tiered system of courts, with different levels of jurisdiction:
First Instance Courts: These courts handle most civil cases, such as disputes over contracts, property, and family law. They are often organized at the municipal level.
Court of Appeal (Tribunal da Relação): Appeals from first instance courts can be brought to the Court of Appeal. The Court of Appeal generally reviews the legal aspects of the case and may alter the decisions made by lower courts.
Supreme Court (Supremo Tribunal de Justiça): In rare cases, appeals may be taken to the Supreme Court, particularly when the case involves significant legal principles or constitutional issues.
Jurisdiction: Civil cases are typically filed in the court that has jurisdiction over:
The residence of the defendant.
The location of the property involved in the dispute.
The place where the cause of action arose.
2. Commencement of Civil Proceedings
Filing a Lawsuit: A civil lawsuit in Cape Verde begins when the plaintiff (the party initiating the lawsuit) files a statement of claim (petição inicial) with the court. This document must outline:
The identity of the parties involved.
A description of the facts supporting the claim.
The legal basis for the claim.
The specific relief or remedy sought by the plaintiff (e.g., monetary damages, specific performance).
Service of Process: After the lawsuit is filed, the court issues a summons to the defendant, informing them of the lawsuit and requesting a response. The summons must be served in accordance with the Civil Procedure Code, and various methods of service are provided, such as personal delivery, registered mail, or by judicial officers.
3. Response to the Claim
Defendant's Response: The defendant typically has a set period (often 10-15 days) to file a statement of defense (contestação), outlining their response to the plaintiff's claims. If the defendant raises a counterclaim, this must also be included in the response.
Failure to Respond: If the defendant fails to file a response within the prescribed time, the court may proceed with a default judgment in favor of the plaintiff.
4. Role of the Court and Judges
Active Role of the Judge: In Cape Verde, as in most civil law systems, judges play an active role in managing the case. This includes guiding the parties through procedural steps, requesting evidence, and ensuring that both sides have an equal opportunity to present their case.
Judgment by Single Judge: Typically, cases are heard and decided by a single judge. In the Court of Appeal, cases may be heard by a panel of judges.
5. Evidence and Witnesses
Types of Evidence: The court allows various forms of evidence, including:
Documentary Evidence (contracts, receipts, correspondence, etc.).
Witness Testimony: Both fact witnesses (who testify about the facts of the case) and expert witnesses (who provide specialized knowledge) may be presented.
Physical Evidence: Objects or other materials relevant to the case.
Discovery Process: Cape Verde follows the civil law system, which generally does not have a formal discovery process as seen in common law countries. However, parties are required to present their evidence before trial, and the judge may ask for additional information if necessary.
6. Trial Procedures
Pre-Trial Procedures: Before the main trial, the court may schedule a pre-trial conference to address procedural matters, set deadlines, and potentially encourage settlement. Mediation or other forms of alternative dispute resolution (ADR) may also be encouraged at this stage.
Main Trial: The trial itself is usually oral, with both parties presenting their arguments, evidence, and witnesses. The judge may ask questions and request clarifications during the trial. After both sides have concluded their presentations, the judge will deliberate and render a decision.
Public Access to Trials: Trials in Cape Verde are generally open to the public, but some cases, particularly those involving sensitive issues (e.g., family law), may be held in private.
7. Appeals Process
Appeals to the Court of Appeal: If a party is dissatisfied with the judgment of the first instance court, they can file an appeal to the Court of Appeal (Tribunal da Relação). Appeals are typically based on errors of law, procedural irregularities, or misapplication of facts.
Appeals to the Supreme Court: The Supreme Court may hear appeals from the Court of Appeal, particularly in cases that raise significant legal or constitutional questions.
8. Enforcement of Judgments
Enforcing Court Orders: After a judgment is issued, the prevailing party can seek to enforce the decision if the losing party does not voluntarily comply. This can involve:
Seizing assets.
Garnishing wages or bank accounts.
Property liens.
Bailiffs: Enforcement of judgments is typically carried out by bailiffs (agentes de execução) who have the authority to seize and sell property or take other actions to ensure compliance with the court’s orders.
9. Alternative Dispute Resolution (ADR)
Mediation and Conciliation: Cape Verde encourages the use of mediation and conciliation as methods to resolve disputes before resorting to litigation. The court may refer parties to a mediator or conciliator to help them settle the matter amicably.
Arbitration: In certain types of disputes, especially commercial ones, the parties may agree to submit the case to arbitration instead of going through the court system. Arbitration allows parties to have their dispute resolved by an independent third party, and the decision is binding.
10. Time Limits
Statute of Limitations: Civil claims must be filed within specific time limits, known as the statute of limitations. For example:
Contract claims: Typically have a limitation period of 5 years.
Tort claims: Generally have a limitation period of 5 years, but this can vary depending on the specific nature of the claim.
Property claims: May have a different limitation period depending on the circumstances.
Effect of Expiry: If a party fails to file a claim within the limitation period, the defendant can raise the expiration of the limitation period as a defense, and the court will typically dismiss the case.
11. Family and Inheritance Law
Family Law: The Civil Procedure Code governs civil family law disputes, including matters related to divorce, child custody, support, and property division. In some cases, mediation may be encouraged to resolve conflicts in family matters.
Inheritance Law: Inheritance disputes in Cape Verde are governed by the Civil Code. Civil procedure rules apply to resolve conflicts over the distribution of estates, the validity of wills, and other matters related to inheritance.
Conclusion
The Civil Procedure Code of Cape Verde provides a structured process for resolving civil disputes, with detailed provisions on court procedures, evidence, appeals, and enforcement of judgments. The system is influenced by the Portuguese legal tradition, and Cape Verde has provisions for encouraging mediation and alternative dispute resolution to resolve conflicts without the need for a formal trial.
RELATED Blog
0 comments