April 1st, April Fools’ Day

April Fools’ Day is celebrated annually on the first day of April.

Also known as the day of the petas, the day of the fools (April), the day of the gaffe, or the day of the fools, it is a date where people tell light lies and play pranks on their acquaintances, for pure fun.

Although there is this April Fool’s Day, in our legal system lies have legal consequences, the situations being foreseen and typified in the Cape Verdean Penal Code (hereinafter simply CP).

As an example, we have the crime of slander provided for and punished in article 165 of the CP; the crime of Injury provided for and punished in article 166 of the CP; the crime of false denunciation foreseen and punished in article 338 of the CP; the crime of simulating a crime provided for and punished in article 339 of the CP and the crime of Falsity by an intervener in a procedural act provided for and punished in article 342 of the CP.

However, the “lie” cannot generate any harmful effect for the defendant, if it is carried out under the cloak of ample defense and, even more, of the fullness of defense and the right to non-self-incrimination.

On the other hand, the Cape Verdean Code of Civil Procedure (hereinafter simply CPC), also establishes legal consequences for lying.

In this sense, the parties to a process must litigate (defend the rights they believe they have) in an adequate way so that the demand can achieve its purpose (final judgment of what is being discussed). When a party voluntarily imposes obstacles and uses tricks in the judicial process in order to recognize rights that it knows well that it does not possess, we are facing litigation in bad faith.

Being that, bad faith litigation is provided for in articles 420 and 421 of the CPC.

What generates a conviction for bad faith litigation?

The parties have the duty not to knowingly make illegal requests, not to articulate facts that are contrary to the truth, or to require merely delaying steps.

A litigant in bad faith is said to be one who, with intent or gross negligence:

• Has deduced a claim or opposition, whose lack of foundation was not unaware of;
• Has altered the truth of the facts or omitted essential facts for the decision of the case;
• Has made a manifestly reprehensible use of the process or procedural means in order to achieve an illegal objective, to impede the action of justice or to prevent the discovery of the truth.

Having litigated in bad faith, the party is sentenced to a fine and compensation to the other party, if requested.

Since, under the terms of subparagraphs a) and b) of paragraph 1 of article 421 of the CPC, the compensation may consist of:

• Reimbursement of expenses that the bad faith of the litigant has forced the opposing party, including the fees of representatives or technicians;
• In the reimbursement of these expenses and in the satisfaction of the remaining losses suffered by the opposing party as a direct or indirect consequence of bad faith.