Law of Evidence at Portugal
In Portugal, the Law of Evidence is governed primarily by the Code of Civil Procedure (Código de Processo Civil) for civil cases and the Code of Criminal Procedure (Código de Processo Penal) for criminal cases. Both codes outline the principles, types, and rules of evidence used in judicial proceedings.
Here’s an overview of the Law of Evidence in Portugal:
1. Types of Legal Proceedings:
Civil proceedings – Governed by the Code of Civil Procedure.
Criminal proceedings – Governed by the Code of Criminal Procedure.
Administrative proceedings – Governed by administrative law.
2. Types of Evidence:
Both civil and criminal cases in Portugal can rely on several types of evidence:
Documentary evidence – Such as written contracts, emails, and official documents.
Testimonial evidence – From witnesses or parties involved.
Expert opinions – From specialists in various fields.
Physical evidence – Items or materials that are relevant to the case.
Digital evidence – Includes emails, electronic documents, and online communications.
3. Principles Governing Evidence in Portugal:
a. Principle of Free Evaluation of Evidence (Princípio da livre apreciação da prova):
Like many other European legal systems, Portugal follows the principle that judges have the discretion to evaluate evidence freely. Judges can assess the credibility of the evidence and witnesses based on their personal assessment of the case.
b. Burden of Proof (Carga da prova):
In civil cases, the party asserting a claim has the burden of proving their case. The burden of proof can shift depending on the nature of the case. In criminal cases, the prosecution bears the burden of proving the defendant's guilt beyond a reasonable doubt.
c. Principle of Legality (Princípio da legalidade):
Evidence must be obtained in accordance with the law. Evidence obtained illegally or through violations of rights (e.g., unlawful search or coercion) is generally inadmissible in court.
d. Principle of the Orality of the Procedure (Princípio da oralidade):
Oral proceedings are a key feature of the judicial process in Portugal, especially in criminal cases. This ensures that evidence, such as witness testimony, is presented live in court, and the parties involved can cross-examine witnesses.
4. Exclusion of Evidence:
Portuguese law excludes evidence that is:
Illegally obtained (e.g., through torture or violation of privacy rights).
Irrelevant or immaterial to the case.
Presented in a way that violates the rules of procedure.
5. Digital and Technological Evidence:
In Portugal, digital and technological evidence is increasingly recognized and used in legal proceedings. Courts may accept:
Emails, SMS, and other digital communications.
Social media content and online activity.
Digital files (e.g., documents, audio, video files).
Surveillance footage, if it is authentic and lawfully obtained.
For digital evidence to be admissible, it must be properly authenticated to ensure that it has not been tampered with.
6. Expert Evidence:
Expert testimony is an essential part of both civil and criminal proceedings in Portugal, especially when specialized knowledge is needed to understand the case (e.g., in medical, financial, or technical matters). Experts are appointed by the court or agreed upon by the parties involved. Their findings may carry significant weight in the court's decision.
7. Witness Testimony:
Witness testimony is a common form of evidence in Portuguese courts. Witnesses must testify under oath, and their credibility is evaluated by the court. The right to cross-examine witnesses is fundamental, ensuring that the party calling the witness cannot prevent the other party from questioning the witness's credibility.
8. Documentary Evidence:
In civil cases, documentary evidence is highly important, and the court may require original documents, although copies may be accepted if the originals are unavailable. Documentary evidence must be presented within specific timelines, and the parties are required to disclose evidence to each other in advance of the trial.
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