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I have three reasons for believing the date of the ruling
was 14 October:
- the
date written on page 36 looks like '14' (but it could be a
badly written '19');
- the
date 14/10/2010 was written in the astro translation (so
she/they also read page 36 as a '14');
- the
typewritten date on another document pertaining to the
ruling (which you probably have not seen) is 18 October,
which would mean that that document was prepared in advance
of the 19th.
One
possible thing that goes against this is that on that
'other' document there is a stamp that reads 'Proc. No:
_______' (nothing is written on that line) and 'Entrada:
19-10-2010'. I'll come back to this.
Also,
there was the question of whether the legal periods
stipulated in the Civil Procedures Code (CPC) are in
calendar days or working days, and I have now found Article
144 in the CPC which helps and hinders my understanding.
The
first paragraph of that article states that all legal
periods are 'continuous' - which I would take to mean
'calendar days', not 'working days' - but to confuse
matters, in a way that only the Portuguese seem to be able
to do, it also says:
-
'notwithstanding its suspension during judicial holidays'
(we know about the annual holiday period between August and
September each year, but I can find no specific statement
that Saturday and/or Sunday are classed as a judicial
holiday)
- and,
it goes on, 'save where the duration is equal to or greater
than six months' (meaning that no judicial period can ever
exceed six months)
- 'OR
in the treatment [conduct] of practical actions in processes
that the law considers urgent.' (I'll come back to this)
The
second and third paragraphs suggest, but only suggest, that
weekends are judicial holidays, in that
-
'where a legal period ends on a date on which the courts are
closed, then the end-date will move to the immediately
following next working day', and
- 'for
purposes of the preceding paragraph the courts are
considered to be closed when a 'bridge day' has been
granted.'
In
Portugal, as a sop to the working class civil servants and
unions (I am not being 'classist' in that observation - bear
in mind that PT has been under communist/socialist rule for
36 years, twice as long as the Blair/Brown regime in UK),
there is a special concept called a 'bridge day' which is a
special holiday granted when a formal public holiday falls
on a Thursday or a Tuesday. When that happens then the next
day, Friday, or the previous day, Monday, is declared to be
a 'bridge day' holiday, effectively resulting in a four-day
weekend.
Why is
all this important? Because in one calculation the
submission of the appeal on 5 November falls outside the
legal period, but in another calculation it falls within the
legal period.
One
other point is that Monday, 1 November, was a public holiday
- All Saints' Day - which adds one day into the calculation.
1)
If the legal periods are calculated in continuous or
'calendar' days excluding official holidays, then 5 November
falls outside the legal period regardless of the ruling date
being either 14th or 19th.
The
longest duration would be (19th + 15 days + 1 public
holiday) - 31 days in October = 4 November as the final
date.
2)
If the official date of the ruling is 14 October AND the
legal period is measured in 'working days' then the longest
duration would be (14th + 15 days + 1 (as above) + 6 (for
three weekends) - 31 = 5 November: the day claimed by Isabel
Duarte as being the date of submission of the appeal.
For
this calculation to fail it would require that the date of
14th be included in the 15 days, so that the final date of
the calculation ends on 4 November.
Additionally, for this calculation to end on 3 November
would mean disregarding the All Saints' Day public holiday.
3)
If the official date is 19 October AND the legal period is
measured in 'working days' then the appeal period would end
on 10 November: five days AFTER the submission on 5
November.
For
the period of '15 days' I need to cite four other Articles
and possibly sow some additional confusion.
Article 153 states that 'failing special disposition, 10
days is the period [granted] for parties' (among other
things) to 'exercise any other procedural power;'.
Article 382 states that 'cautelar' procedures are always
deemed to be 'urgent'.
Article 685 states that 'the period in which to lodge an
appeal is 30 days, save in urgent cases and the many cases
expressly foreseen in the law, and counting from the
notification of the decision.'
Article 691 states that (among other things) the period of
appeal for urgent cases is reduced to 15 days.
First,
here, I have taken the legal period for the appeal of the
Appellate ruling as being 15 days based on the 'urgent'
stipulations given in Articles 144, 382, 685 and 691 - given
that the injunction is a 'cautelar' case.
Second, the phrase in Art 685, 'counting from the
notification', brings me back to that stamp 'Entrada:
19-10-2020' which appears on the document dated 18 October
which I mentioned at the beginning of this missive.
The
word 'Entrada:' makes me think that that is the date on
which the ruling was entered/recorded in the official
judicial record.
That
document is the official cover letter under which the
decision was sent to the legal teams. It does not affect the
outcome of any of the date calculations above, but it does
introduce another date into the question: On which date is
the Appellate ruling effective on the parties: 14th? 18th?
or 19th?
Finally, in my searching of the CPC I did come across
another very long but interesting Article, number 712, which
sets out the circumstances under which a decision of the
court of 1st instance about the 'matter of fact' can be
altered by the Court of Appeal.
I did
not see any reference to this Article in the Appellate
ruling, but the last paragraph of Article 712 states that
decisions of the Appeal Court made under the provisions of
the Article cannot be appealed to the Supreme Court.
That
leaves me wondering whether or not dates have anything at
all to do with the rejection of the alleged 5 November
appeal. |
