葡萄牙常驻联合国日内瓦办事处代表佩德罗·鲁诺·巴托洛（Pedro Nuno Bartolo）在介绍报告时表示，葡萄牙一直骄傲地教育其子孙后代：葡萄牙在150年前成为欧洲，也许也是世界上首个正式在法律和实践中废除死刑的国家，从而结束了其视作最恶劣形式的残忍、不人道和有辱人格的处罚。葡萄牙于2013年初通过了《禁止酷刑公约任择议定书》，相信酷刑总是错误的，禁止酷刑是绝对的。侵犯人权的行为不应该发生，即使以打击恐怖主义为名目。葡萄牙致力于改善《公约》的实施情况，并相信国家利益不应该以牺牲人类尊严为代价。
Presentation of the Report
PEDRO NUNO BARTOLO, Permanent Representative of Portugal to the United Nations Office at Geneva, introducing the combined fifth and sixth periodic report of Portugal, said that Portugal was fully committed to the respect and promotion of human rights. It took great pride in teaching its children that Portugal became the first country in Europe and perhaps in the world to formally abolish the death penalty more than 150 years ago, in law and in practice, thus putting an end to what, in its views, was the worst form of cruel, inhuman and degrading punishment, a punishment that also degraded the State that carried it out. Portugal shared the view that torture was always wrong and that the prohibition of torture was absolute. Human dignity was of paramount importance and human rights violations should not happen, not even under the auspices of fighting terrorism.
Portugal had ratified the Optional Protocol to the Convention against Torture on 15 January this year. Preventing and combating ill treatment of persons deprived of their liberty as well as fighting abuse of authority remained among Portugal’s top priorities. It had adopted in September 2009 Regulations on the Use of Coercive Means, together with a new Code on the Execution of Sentences and Security Measures in October of the same year. Training was also essential to prevent ill-treatment of persons deprived of their liberty. Efforts had been made to improve training and the content of courses provided, particularly those targeted at prison guards, whose initial training period had been prolonged to six months.
Portugal had also looked at ways of preventing violence against inmates. Drug-related issues were one of the key underlying issues. Portugal had sought to improve the conditions of detention of prisoners by working on the infrastructure of several prisons. Sanitation conditions had been upgraded and extensive works were carried out in several prisons in order to achieve better conditions as well as to increase occupation capacity.
Portugal was home to several immigrant communities from countries where female genital mutilation was practiced. It had stepped up its commitment towards the elimination and prevention of this heinous crime. Among other measures, training activities for professionals dealing with potential victims as well as raising awareness among the practicing communities had been reinforced. Combating domestic violence and violence against women and children was one of Portugal’s utmost human rights priorities. In the last few years, it had improved legislation in this field by approving, in 2009, new laws on the prevention of domestic violence and protection and assistance to its victims, and on compensation to victims of violent crimes and domestic violence. Portugal also highlighted its ratification, in February 2013, of the Istanbul Protocol.
Preventing and combating trafficking in human beings was also a national priority. The creation of the Observatory on Trafficking in Human Beings at the end of 2008 was an important milestone in this area, as it brought about a more accurate knowledge of the reality in Portugal. Training in this area was reinforced for judges, prosecutors, police forces and labour inspectors.
The Portuguese National Human Rights Committee was responsible for inter-governmental coordination with the aim of promoting an integrated approach to human rights policies and was committed to engaging with civil society and promoting a greater involvement of non-governmental organizations in the United Nations human rights reporting process. It ensured that Portugal was completely up to date with its reporting obligations to human rights treaty bodies.
Portugal was fully aware of the remaining challenges in the field of preventing torture and other forms of cruel, inhuman or degrading treatment or punishment. Despite the difficult financial situation the country was facing, the Committee was reassured of Portugal’s relentless commitment to continue improving the implementation of the Convention as well as to ensure the respect and promotion of the highest standards of human rights through effective legislative, administrative, judicial or other measures. It was its view that no State interest should be purchased at the expense of human dignity.
Questions by Committee Experts
CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the report of Portugal, said that Portugal had clarified that discrimination was illegal in the Penal Code but the Committee always tried to ensure that all countries incorporated the definition of torture in Article 1 of the Convention. If they achieved the same definition of torture everywhere, it was believed that this would lead to legitimacy. When the purpose was discrimination, would that be considered torture? Were there any cases in Portugal where the courts had interpreted this in that way?
Had the current economic crisis had an impact on the budget allocated to the Provedor de Justicia, in relation to the past three years? What was the distribution of funds? There were situations where civilians had alleged that officials had taken part in acts of inhuman treatment against them. What were the delegation’s views on this?
The criminal code had broadened the definition of domestic violence. Had an increase been seen in the number of cases presented to the Portuguese courts involving domestic violence? Under new regulations, police in certain circumstances may arrest an aggressor even when not caught in the act. Had an increase in arrests been seen?
On discrimination against Roma, tremendous prejudice continued. What measures were being taken in this regard? What was the status of the national strategy for the integration of Roma? Was there any information available on the removal of fencing of Roma settlements?
It had been mentioned that an important observatory of trafficking of human beings had been created. Was data collected and disaggregated by race, gender and ethnicity? Had the strategy to create incentives for encouraging victims to denounce human trafficking been successful?
Could the difference be clarified between pre-trial detention and detention of persons who had been tried in criminal procedural law? What factors determined pre-trial detention? Were time limits on pre-trial detention renewable?
What had Portugal’s reaction been to recommendations made by the European Committee on the Prevention of Torture on incommunicado detention, and was there a process of implementation of these recommendations? Was exclusion of juveniles from incommunicado detention under consideration?
What were the criteria in surrendering individuals to other European countries under the European Arrest Warrant? Had diplomatic assurances been given or received in the period of the current report?
NORA SVEASS, Committee Expert and Co-Rapporteur for the report of Portugal, congratulated Portugal on the establishment of the national preventive mechanism, the Provedor de Justicia, which should be strengthened even further. More needed to be known about what was being done to investigate complaints. Some numbers and figures on this begged for more questions. In the report, reference was made to a number of inspections carried out between 2008 and 2011 and there were 504 inspections without prior notice. It was understood that these inspections were primarily to the police and police stations and nothing had been noted. Could more information about this be given? How would training be strengthened and further developed to find alternatives to dealing both with inmates and persons on the streets (in relation to arrests)? There was interest in knowing about the independence of bodies carrying out investigations. It seemed there was a complicated system involved on where to complain, how was this carried out and what happened afterwards.
There had been cases of allegations, in one situation, about persons being abused by tazers, water boarding and even a metal rod. What information was there on this? What investigations were carried out and what were the results?
It had been noted that there was a lot of training relating to human rights. It was extremely important that there be follow-up on training to ensure that these things were really being learned. Could the delegation elaborate on the training of officials dealing with asylum seekers, which was a special challenge? It was important to have the necessary preparation to deal with persons that may be traumatized and asking for protection. Were medical personnel trained to take part in this? Concerning some asylum seekers who claimed to have been tortured in their home country, was there a systematic medical assessment of this available?
On the decision to close the Lisbon Central Prison, what steps would be taken?
Overcrowding in prisons needed to be looked into. It was known that there had been major changes. As for healthcare, it was understood that some of this was outsourced which may have its good and bad sides. Could more information be provided on this?
Regarding redress and compensation, the reply was very brief. Could more be said about the kinds of compensation that had been given? The Committee had adopted a General Comment to Article 14 of the Convention discussing in more detail what it meant to provide redress and all forms of reparation, including rehabilitation for persons that had been subjected to torture.
It was known that there was training on the use of tazers and that there had been some incidents and complaints. What were plans in this regard?
On discrimination, could anything be done about the under-reporting of crimes?
An Expert noted that the report denied allegations of rendition flights that the United States CIA had organized through the airports and airbases in Portugal. The report also said that an enquiry opened in 2007 and was concluded in June 2009 for lack of evidence. The Committee would appreciate to hear comments from the delegation on a 2008 report by Reprieve entitled ‘A Journey of Death’, providing detailed information on 720 prisoners rendered to Guantanamo with the help of Portugal.
On the issue of solitary confinement, the European Committee on the Prevention of Torture had recommended to reduce that maximum period of 30 days to a maximum of 14 days. The reply, in 2012, had been that the Government would carefully study the recommendation. Had there been conclusions by the Government on this matter, today?
Another Committee Expert noted that data and details provided were much appreciated but indicated that most of the people that had died in custody did so because of infectious diseases, a small number from suicides, but that infectious diseases were said to be largely related to drug abuse. What special measures if anything were being taken to address those illnesses and broader problems?
On the issue of domestic violence, it was said that because of the new law and awareness raising there had been an initial significant increase of complaints, but in later information in the report it had been said that there was a decrease in the number of incidents compared to 2010. Could more information be given on whether, in addition to awareness-raising, the cases of prosecution had had an impact on this?
On trafficking, the report on human trafficking was said to be a best practice and that the national coordinator of the plan against trafficking had been very active in these matters. Were 30 cases a year considered to be a large number of cases? If more had been done in this area, was this reflected in the statistics and the results?
An Expert, on the problem of provisional detention, said it seemed that this had led to confusion and asked for clarification. On juvenile justice, there was a problem of applicability of norms and standards that were applied to adults and minors that had reached criminal majority.
On expulsion decisions, it was not known whether persons were able to appeal to these or seek counsel. Regarding the use of firearms, it was said that this was for cases protected by law and this needed to be clarified. Did tazers fit into this?
Another Expert said there were allegations that in the prison population in the country, foreigners were over-represented and in some cases the punishment and imprisonment for prisoners tended to be more severe and longer. Could a response on this be given?
On universal jurisdiction, could more be said about lessons learned in relation to East Timor by Portuguese courts, asked an Expert?
Was compensation allocated to victims of abuse or ill-treatment? It would be better to have disaggregated data.
On the expulsion of aliens through coercive actions, there were other ways of doing this. In the report, there was talk about 720 foreign nationals that had been removed or expelled by coercive measures, and 169 returned to the border. What did this mean, returned to the border?
CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the report of Portugal, recalled that drug problems had been a strong contributing factor to violence in prisons and that programmes had been created to address the situation. Could experiences in trying to limit the access to drugs in prison be shared? This issue did not only affect Portugal and the Committee was trying to identify good practices. When a person died in prison, what steps were taken? Was there a pattern in suicides? Were they drug-related? What could be done to avoid and prevent this?
NORA SVEAASS, Committee Expert and Co-Rapporteur for the report of Portugal, enquired as to whether there had there been anyone that had filed for a compensation or reparation scheme based on torture or other violence by, for example, the police? Would the station initiate the process or was the coming forward of the person concerned awaited?
CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the report of Portugal, said that the Committee looked forward to the answers of Portugal tomorrow afternoon.
PEDRO NUNO BARTOLO, Permanent Representative of Portugal to the United Nations Office at Geneva, thanked the Committee for raising very important, precise and sometimes difficult questions, for which Portugal was grateful and which would help it clarify the report. The answers to most of these questions would be prepared today and tomorrow the Deputy Attorney General would bring some responses to these important questions, among other members of the delegation. It was of crucial importance that facts and deeds and situations on the ground matched the principles enshrined in Portugal’s law and that was what would be attempted to be demonstrated tomorrow.
Responses by the Delegation
The Head of the Delegation made a brief intervention to say that Portugal saw the Committee’s work as crucial. It gave States a chance to look in a mirror; people did not always like to look at their own reflection and may not even recognize what they saw, but if a person wanted to improve his appearance he had to look honestly at himself, both the good and bad aspects. The Committee acted as an impartial mirror to States, he said, reflecting the true situation in a country. Portugal valued that and welcomed its constructive criticism.
The concept and definition of torture was not changed in the last revision of the Portuguese Criminal Code in spite of the former concerns of the Committee, since it was considered by the legislative that the definition sufficiently covered the subjective purpose of discrimination, and allowed for a broad scope of application. There was no knowledge of case law concerning such a situation, the delegate confirmed, adding that the penal code foresaw the crime of racial, religious and sexual discrimination, and a penalty for a crime could be increased by giving consideration to the motive for the crime.
Regarding the impact of Portugal’s financial situation in the Ombudsman’s activity, a delegate said the cut for the 2014 budget was foreseen to be six per cent, but the Government believed that the Ombudsman’s activity should be strengthened. Regarding complaints about torture received by the Ombudsman, the delegation believed that information had already been provided to the Committee and did not have further additions to those statistics.
Concerning domestic violence, a delegate said the fourth National Action Plan to prevent domestic violence (2011 to 2013) focused on reinforced proximity and increasing the involvement of stakeholders including civil society and local authorities to tackle the phenomenon. It gave visibility to the issue of domestic violence and integrated new measures to effectively respond to and support victims. Important steps were taken to improve the collection of statistical information. Safety measures were improved for victims in the first 48 hours following an assault. Electronic surveillance methods were also launched for perpetrators. Devices were also given to victims and vulnerable people for them to quickly contact law enforcement authorities if needed. The recent domestic violence law of 2009 sought to provide a quick, modern and effective response to cases and ensure timely prosecution and conviction of perpetrators. The law also sought to protect people in same-sex relationships.
A delegate spoke in considerable detail about the wide array of measures Portugal had taken to tackle domestic violence. Measures included training programmes for the judiciary, law enforcement bodies and security forces and staff of victim support centres. Victims’ access to physical, psychological and financial rehabilitation had become a reality, and an important achievement was the important role played by civil society in providing not only psychological and social assistance but also legal assistance to victims. There were currently 36 Domestic Violence Centres (shelters) nationally with capacity for 619 woman victims of domestic violence and their children. Since 2010, 3,124 women victims had been supported by the Domestic Violence Centres, around 5,200 women had been accommodated in shelters, and more than 10,000 calls were received by the free emergency helpline.
The number of murders resulting from domestic violence were high, a delegate said, providing the statistics: 43 murders in 2010, 44 in 2011, 40 in 2012 and 20 in the first semester of 2013. A popular awareness-raising campaign was the ‘Red Card for Domestic Violence’, which was promoted through football, at the Football World Cup and in stadiums. The number of domestic violence convictions was increasing, a delegate said, as a direct result of the 2009 law; there were 74 convictions in 2008, 421 in 2009, 1,079 in 2010 and 1,289 in 2011.
Portugal was deeply committed to fighting all forms of racial discrimination and to integrating all groups in the Portuguese multicultural society and ensuring their full enjoyment of all human rights, a delegate reiterated. The delegate highlighted some of the most effective measures taken, which included the National Action Plans for the Integration of Immigrants, which adopted a holistic approach. The National Immigrant Support Centres, which were known as the ‘Portuguese One-Stop-Shop’ approach and were located in Lisbon, Oporto and Faro, provided free support and services to all immigrants. Furthermore, there was a nationwide network of 86 Immigrant Support Centres for the local integration of immigrants that provided decentralized information and support in partnership with local authorities and civil society.
The Immigration Observatory sought to deconstruct myths, misrepresentations and stereotypes about immigrants and immigration, and stimulated dialogue between academia and political decision-makers on policies. The Choices Programme reached 71,000 children from 6 to 18 years of age from disadvantaged backgrounds, including members of ethnic minorities and immigrant families, to promote their social integration, with a budget of €38 million. Other measures to raise public awareness on diversity and combat racial prejudices included educational and training bodies, competitions and initiatives in schools, brochures in several languages on the rights and duties of immigrants, a national telephone service in immigrants’ most common languages, a weekly television series called ‘Nos’ (‘Us’) and a weekly radio programme about the life stories of immigrants living in Portugal. The annual Journalism for Cultural Diversity prize was given to journalists who presented a positive image of immigrants, and celebrations were held nationwide to mark the International Day for the Elimination of Racial Discrimination, which in the past had been led by football players from the Portuguese Premier League.
Roma communities (or Ciganos as they preferred to be called, the delegate said) had had Portuguese citizenship for centuries, and currently amounted to between 40 to 50,000 persons. The National Strategy for Inclusion of Roma Communities 2013 to 2020 focused on education, health, housing and employment, and addressed the recommendations of the European Commission. Two examples were the Roma Municipal Mediators and the Choices Programme which provided support to children and youth.
Regarding evictions, a delegate explained that in May 1993 the National Special Re-Housing Programme was created to eradicate shacks and illegal settlements throughout the country and provide people with alternative housing. The National Immigrant Support Centre also monitored the demolitions and re-housing of the most vulnerable or economically fragile families. Portugal actively cooperated with the United Nations Special Rapporteurs on Housing and Extreme Poverty and the United Nations Independent Expert on Minorities Issues on demolition and eviction cases in Bairro de Santa Filomena in Amadora.
Portugal adopted its first National Plan against Trafficking in Persons (2007 to 2010) at the same time as the new Law on Foreigners was adopted, followed by other relevant legislation. Portugal now had an adequate protection mechanism which met international standards in the fight against trafficking in persons. The second National Plan was adopted in 2010 and focused in particular on sexual and labour exploitation. Training had been provided to strategic partners, such as prosecutors, judges, social workers and members of non-governmental organizations. In 2013 all 300 labour inspectors attended a training session on trafficking, while preventative actions formed the core of training for the police, security forces and the Foreign and Borders Service. Awareness-raising activities included a campaign called “You Are Not For Sale”, a comic book aimed at young people and a campaign about recruitment for trafficking on the internet called “Saferdic@s”. Campaigns specifically targeting sexual exploitation included the 2013 initiative “Don’t let human trafficking decide your destiny”.
Pre-trial detention was an exceptional measure limited to some precise cases and only when detailed prerequisites were met; its use was strictly regulated. Pre-trial detention may only be ordered when it was strongly suspected that a person had committed a crime carrying a sentence of more than five years, or a violent crime, an act of terrorism or a highly organized crime carrying a sentence of more than three years in prison. Pre-trial detention could also be used where a perpetrator had illegally entered Portugal or was the subject of an extradition order.
Incommunicado detention was only used in cases of suspected terrorism, violent or highly organized crime, when a suspect may be prevented from communicating with other persons before their first judicial interrogation, except for his or her lawyer. The judicial interrogation naturally took place in the presence of the suspect’s lawyer.
Investigations had found that there were no cases of excessive use of force by law enforcement agencies. Criminal enquiries had been carried out – by independent public prosecutors – of cases of misconduct by the law enforcement authorities and such cases always gave rise to independent disciplinary enquiries.
Answering questions on extraordinary rendition, a delegate first reiterated that Portugal was deeply committed to respecting human rights, it was party to most international human rights treaties without reservations and was currently concluding the ratification process for the International Convention for the Protection of All Persons from Enforced Disappearance. It fully recognized the competence of all human rights treaty bodies, including to examine individual complaints, and had a standing invitation to all human rights Special Procedures. Regarding the alleged illegal transfer of detainees, a delegate said the Portuguese Government had always cooperated with investigations on that matter, from a national level to the level of the European Council, as well as the Human Rights Committee and the Committee against Torture, and also had complied with requests for information on alleged flights between 2003 and 2005 from civil society organizations.
Concerning specific actions relating to the allegations of extraordinary rendition, a delegate said some 12 flights had been searched and there were records and depositions by more than 200 people working at all airports of Portugal where such flights allegedly took place. There was no proof or evidence that such flights had taken place from Portugal.
Returning to the issue of extraordinary rendition, a delegate said he understood that in the future the allegations and evidence could be different, but at this particular time, all parties and all complainants had been thoroughly investigated and almost 300 people had been questioned. According to the Public Prosecution, the Criminal Investigation Police, and the Magistrate, none of the allegations were found to be true. On the problem of ‘over-flight’ or ‘landing’ situations, any flight flying over Portuguese air space was subject to international legislation, while landing was subject to Portuguese law. All instruments on the international and domestic sides had been respected. If the Public Prosecution Office was confronted with new evidence it would be prepared to open the case again.
Regarding solitary confinement, the issue had been brought to the attention of the Minister of Justice by the Director-General of Prison Services. The law stated that the maximum time for solitary confinement was 30 days. For juveniles 16 years and younger, the maximum time was 24 hours. There were guarantees in place that reinforced the new code.
Regarding discrimination against lesbian, gay, bisexual and transgender persons, the number of crimes recorded between 2008 and 2012 were 13 complaints in 2009, 15 in 2010, ‘statistical secret’ for 2011, and six in 2012. ‘Statistical secrecy’ was to do with a lower number of cases of a crime of a sensitive nature, a delegate explained; if there were less than three cases the accused needed to be protected as they could be more easily identified.
Concerning asylum requests, a delegate said that a 2008 law established the conditions and procedures to grant asylum or subsidiary protection and ruled on the statutes of the asylum seeker, refugee or beneficiary of subsidiary protection. The asylum law provided a special procedure for asylum at borders involving a short-term decision following interviews and judicial remedy with automatic suspensive effect. If asylum was granted applicants were allowed into Portugal and installed in an open centre. If asylum was not granted and the person did not appeal the decision, the person must return to the country they came from, which in most cases was not the country of origin.
There was a problem of overcrowding in prisons. The Ministry of Justice was responsible for 49 prisons with a total capacity of over 12,000 inmates. There were currently approximately 14,000 inmates. An urgent review into the improvement of prison conditions, prioritizing increasing capacity and extending prison facilities, was underway. The reform plan involved the construction of one new prison, the renovation of eight prisons, and the creation of 1,129 new places in prisons with an investment of €31 million.
A delegate answered a question about people kept naked in seclusion cells, in prisons including Santa Cruz Prison. That was done sometimes to protect prisoners from the risk of suicide, but the procedure had, for now, ceased. To keep a prisoner in the nude, for his or her own protection, a prison director had to get the permission of three psychologists.
Regarding restraining measures in prisons and psychiatric hospitals, a delegate gave several statistics on patients living in hospitals, in community homes and in other care institutions. New structures of psycho-social rehabilitation had been launched that differentiated between adults and juveniles. Additionally there were some religious orders that ran private psychiatric hospitals in a traditional manner, including in the autonomous regions of Portugal. When aggressive or unexpected behaviour occurred in a patient it was necessary to use restraining measures, regulated by law. Mechanical restraining methods were not used. A cushioned room, or chemical restraint, were sometimes used to help the patient overcome a crisis situation.
It was mandatory to open an enquiry in cases of torture and inspection of law enforcement agencies. Any allegations that may constitute a crime of torture (which may arise through a report by a victim, a third party or ex officio, or by the police or public prosecution authorities) always gave rise to a criminal investigation automatically. The initiation of criminal proceedings always led to a disciplinary enquiry. Any hierarchical superior who knew of a crime was obliged to report it. Portugal had a multilayer system of checks and balances, including control by law enforcement authorities, by General Inspectorates, by judicial authorities and by the Ombudsman.
PEDRO NUNO BARTOLO, Permanent Representative of Portugal to the United Nations Office at Geneva, assured the Committee of Portugal’s agreement with the Committee that words must be backed up with action. He said any outstanding questions would be answered in writing and submitted to the Committee by Monday.
CLAUDIO GROSSMAN, Chairperson of the Committee, thanked the delegation for its comprehensive and highly professional answers. The Committee had learned a lot from the dialogue, thanks to the delegation’s experience and knowledge. He hoped the Committee’s concluding remarks and observations and its collective experience would help Portugal in fully complying with the Convention.
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