FOR A CITIZEN'S APPROACH TO JUSTICE: (PREVIOUS) AUDIENCE, PROCEDURAL MANAGEMENT AND CONCILIATION

• Published in: Economic and Social Development: Book of Proceedings pp. 143 - 151
• Main Author: Magalhaes, Luisa Maria Alves Machado
• Format: Conference Proceeding
• Language: English
• Published: Varazdin Varazdin Development and Entrepreneurship Agency (VADEA) 21.07.2022
• Subjects: Charters; Civil procedure; Cooperation; Court hearings & proceedings; Decision making; Deduction; Judicial system; Justice; Legal reform; Mediation; Peace; Reconciliation; Portugal
• ISSN: 1849-6903; 1849-6903

In the Portuguese judicial system, the assumption of the relevance of a previous court hearing, halfway between the initial deduction of the claim subject to judgment and the final decision of the case, was embodied by the decisive (and applauded) Reform of 1995-1997, DL n° 329-A/95 of 12/12 and DL n° 180/96 of 09/25. This reform, considered by many to be the most paradigmatic civil procedural revolution to which the portuguese Civil Procedure Code has been subjected since 1939, assumed a new paradigm: a "working community " to better solve the dispute, through the "preliminary hearing", an absolutely innovative moment of anticipation of the meeting between parties, representatives and judge. One of the purposes of this phase, would be to achieve parties conciliation: somehow, through a pacifying consensus lead by the judge, a negotiated solution would end the dispute. Therefore the choice of (attempted) conciliation, as the first investment of the so called preliminary hearing (art. 508°-A n° 1 alínea a) CPC by DL n° 329-A/95), which was tending to be mandatory. 18 years later, a new Reform (Law n° 41/2013 of 26/06) insists on this hearing, now called "previous" but paradigmatically identical to the "preliminary", clearly reinforcing the obligation to carry it out, as well as reinforcing the judge's powers-duties in fulfilling those aims, among them the (attempted) conciliation, once again at the top of the list (art. 591° n°1 point a) CPC). Witnessing closely the evolution of this entire journey, we soon realized the "resistance " put up by the judiciary community to the ease of this previous "meeting point". Despite the intentional "strengthening" of the 2013 reform, resistance, although met, persists. For the rest, the pandemic that has befallen the world in the last 2 years will have, quite conveniently, done the rest. With significant damage to a adequate conflicts resolution and justice achievement much closer to the citizens, a purpose that is being left behind. This is what we propose to analyze.