PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
8. Evidence 8.1 Disclosure/Discovery
be sentenced to a fine (and may be liable to any legally possible coercive means) and, if the refuser is a party to the proceedings, the court will freely assess the value of the refusal for evi- dential purposes (Article 417, Nos 1 and 2 of the CPC, ex vi, Article 1 of the CPTA). Also, it is possible to pre-file disclosure actions – with the aim of ensuring the presentation of things or documents that the possessor or hold - er does not want to provide (Articles 1045–1047 of the CPC, ex vi, Article 1 of the CPTA) – or request conservatory measures aimed at pre - serving documents (Article 403 of the CPC, ex vi, Article 1 of the CPTA). There may also be a duty to preserve evidence even before the proceedings, under penalty of an inversion of the burden of proof if the violation of this duty has caused the impossibility of proof (Article 344, No 2 of the Civil Code, ex vi, Article 1 of the CPTA). Note that generally, regardless of any judicial claim to be adjudicated in court, everyone has the right to consult administrative documents Although unwritten, it is unanimously accepted that civil and administrative proceedings are bound by the “principle of immediacy” , which states that there must be a direct and person - al contact between the judge and the various sources of evidence. As a manifestation of this principle, not only must any evidence be pre - sented directly to the judge, but also any testi - mony must generally be given personally – either in person or through video conference (Article 502, ex vi, Article 1 of the CPTA) – and cross- (see 9.7 Expedited Proceedings ). 8.3 Live Evidence and Cross- Examination
Portuguese civil and administrative procedures do not have a discovery proceeding, as such. 8.2 Alternatives to Disclosure/Discovery Upon the presentation of its defence, the defend - ant is obliged to send the administrative file (if any) to the plaintiff, as well as all other docu - ments relating to the subject matter of the case (Article 84, No 1 of the CPTA). The general rule is that each party bears the burden of proving the facts on which the claim or the defence is based on. Thus, any facts not objected to by the opposing party will be deemed proven and therefore will not be subject to evidence (Article 574, No 2 of the CPC). Only disputed facts face judicial scrutiny. Prior to the trial, the court may order the parties to produce any evidence deemed relevant (Arti - cle 90 of the CPTA and Article 410 of the CPC). A party may also ask the court to order the other party to disclose documentation, but the requesting party must indicate the facts it intends to prove with the requested documents (Article 429 of the CPC, ex vi, Article 1 of the CPTA). Such requests for disclosure of docu - mentation will only be granted if the requesting party is unable to obtain the documents by any other means or has substantial difficulty in doing so. Everyone has a duty to co-operate in the dis - covery of the truth by answering any questions asked of them, submitting to the necessary inspections, providing whatever is requested, and carrying out any acts that may be ordered. Those who refuse to co-operate properly will
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