COMMITTEE AGAINST TORTURE REVIEWS REPORT OF PORTUGAL

Committee against Torture
MORNING
14 November 2007

The Committee against Torture this morning examined the fourth periodic report of Portugal on how that country is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Francisco Xavier Esteves, Permanent Representative of Portugal to the United Nations Office at Geneva, presenting the report, said there had been major restructuring of the police in Portugal with a greater focus on human rights. Independent oversight by the Inspectorate General of Internal Administration and the Prisons Directorate had been strengthened. Strict laws on the use of firearms and coercive force by the police were in force.

There were regulations on the material conditions of detention of all persons, covering space, light, comfort, medical and legal access, access by the Inspectorate General of Internal Administration, and a wide range of other statutory provisions, the Permanent Representative said. Prison overcrowding had greatly decreased as alternative non-custodial measures expanded. Prison facilities, visiting regimes and health services, including drug abuse measures, had been developed. Incarceration of minors had diminished with most juvenile criminals in community programmes.

Fernando Marino Menendez, the Committee Expert acting as Rapporteur for the report of Portugal, said the report suggested differences between detention per se and detention for the purposes of identification. He asked how this was understood and who was involved in making decisions. On guarantees, was the right to legal counsel regulated by some kind of legal text? Compulsory access to a doctor, also, did not seem to be enshrined in a legislative tool. This posed a risk of inadequate protection in cases of mistreatment. He also asked how the senior officials of the independent inspectorates were chosen.

Guibril Camara, the Committee Expert acting as Co-Rapporteur for the report, said that, in countries using ID cards, the police were often involved in custody for the purposes of identity. Suspicion of criminal activity complicated the case when it came to establishing the time period of detention. How did Portugal resolve this? On anti-terrorism, he asked if there was any way of checking the provisions of counter-terrorist activity and monitoring actions? He asked for clarification on who paid damages in the event of a complaint procedure adjudicating against a police or public official? Would the State be liable?

Questions were posed, inter alia, by other Experts on the monitoring or supervision of police conformity with ethical codes; the concern that Portugal had not eliminated bodily punishment for juveniles; the criteria of “reasonability” in time limits for detention of aliens; the subject of diplomatic assurances and established practices in Portugal; legal access for political asylum seekers; complaints procedures for those held under counter-terrorism measures; and legal provisions on gender violence, domestic violence and violence against children.


The Portuguese delegation included other representatives from the Office of the Attorney General of the Republic, the Prison Services Directorate within the Planning and External Relations Service of the Ministry of Justice, the Ministry of Internal Administration, and the Social Rehabilitation (Probation) Service.

The delegation will return to the Committee at 3 p.m. on Thursday, 15 November to provide its responses to the questions raised today.

As one of the 145 States parties to the Convention against Torture, Portugal is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

At the end of the meeting, the Committee heard a presentation on the Universal Human Rights Index, a searchable database tool providing access to human rights documents such as Special Procedures reports and concluding observations by treaty bodies.

When the Committee reconvenes this afternoon at 3 p.m., it will hear the responses of Estonia to the questions raised by the Committee on Tuesday, 13 November.


Report of Portugal

The fourth periodic report of Portugal describes the provisions of the Penal Code concerning Portugal’s undertaking not to commit torture. It explains the nature of international judicial cooperation by Portugal on extradition, transmission of criminal proceedings, transfer of those sentenced, refoulement and related issues. The report describes the framework of criminal law governing acts of torture and relevant articles on punishment, detention, and guarantees in relation to detention.

The report provides information on internal inspection of detention facilities and codes of ethics governing the work of the various police services, competencies of the Inspectorate General of Internal Administration, and the roles and functions of related authorities. There is a section on complaints received by the Inspectorate General and Office of the Attorney General, and legal measures for handling complaints. The Portuguese prison system is described in detail, showing statistical data on prison capacity and populations from 1999 to 2004.

Presentation of the Report

FRANCISCO XAVIER ESTEVES, Permanent Representative of Portugal to the United Nations Office at Geneva, presenting the report, said there had been constant action by Portugal pursuant to the concerns and suggestions made by the Committee, most recently in the written responses submitted to the List of Issues.

He highlighted, inter alia, the ongoing restructuring of police units, measures to define conditions of use of firearms in the police, efforts on conditions of detention, training, and work on entry and exit rules for foreigners.

There had been major restructuring of the police with a greater focus on human rights. Laws on the restructuring of the Guarda Nacional Republicana and the Public Security Police had been passed in 2007. Different police bodies had their special inspection units, while independent oversight by the Inspectorate General of Internal Administration and the Prisons Directorate had been strengthened. Strict laws on the use of firearms and coercive force by the police were in force. Firearms could not be used except with the sole purpose of protecting human life according to rules outlined in the United Nations Principles on the Use of Force.

There were regulations on the material conditions of detention of all persons, covering space, light, comfort, medical and legal access, access by the Inspectorate General of Internal Administration, and a wide range of other statutory provisions. Major inspections by the Ombudsman had taken place in 1996 and 1999, and recommendations had been acted upon. Ad hoc visits by the European Committee against Torture had also been carried out.

Prison overcrowding had greatly decreased as alternative non-custodial measures expanded. Prison facilities, visiting regimes and health services, including drug abuse measures, had been developed. Incarceration of minors had diminished with most juvenile criminals in community programmes.

Police training covering professional ethics and human rights had been reviewed and updated, the Permanent Representative said. Dissemination of the Convention against Torture was fully promoted in book and web-based media by various agencies.

Regarding foreigners and asylum seekers, laws approved in 2007 pursuant to European and international obligations provided for fairness and justice in the visa system, family regroupment, improved visa regulations for victims of trafficking, expedited residency for grave humanitarian situations, voluntary returns in cooperation with the International Organization for Migration, and sanctions against those who took advantage of illegal immigration.

Questions and Issues Raised by Committee Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert acting as Country Rapporteur for the Report of Portugal, said the report illustrated a very positive state of affairs in Portugal. He asked whether human rights non-governmental organizations (NGOs) had been involved in drafting the report. No Portuguese NGOs had come to visit the Committee for this session, and this was rather curious.

The report suggested differences between detention per se and detention for the purposes of identification. Mr. Marino Menendez asked how this was understood and who was involved in making decisions. On guarantees, was the right to legal counsel regulated by some kind of legal text. Compulsory access to a doctor, also, did not seem to be enshrined in a legislative tool. This posed a risk of inadequate protection in cases of mistreatment.

There were problems regarding incommunicado preventive custody – how long could a person be thus detained? Who controlled this instrument? Were there greater incidences of cruel or degrading treatment when people were held in a facility under police control. The report’s list of crimes that could be investigated by the judicial police did not include torture.

On detention of smugglers or drug traffickers at airports, what was the role of the border police and how long were suspects held?

Mr. Marino Menendez asked how the senior officials of the independent inspectorates were chosen. Did the Government investigate private security companies, and how was this related to the Prosecutor’s Office?

He asked for clarification on appeals against refoulement, and whether there were rules concerning minors. Was it an offence to enter illegally without requesting refugee status and without immediate reporting to the authorities? Was there a problem implementing the European detention warrant flowing from the issue of reciprocity?

Regarding diplomatic guarantees on expulsion outside the framework of extradition, was this being considered? Was there information on countries to which expelled persons had been returned?

Mr. Marino Menendez also asked about domestic violence. Were there any statistics?

On universal jurisdiction, he asked for clarification on certain statements in the report. It appeared that the “duty to prosecute” was not clearly stated. He asked for information about the case of “unproven” accusations against Indonesian military personnel.

Had Portugal detected any “extraordinary rendition” or related illegal detention in the context of anti-terrorism in or over Portuguese territory?

GUIBRIL CAMARA, the Committee Expert who acted as Co-Rapporteur for the Report of Portugal, said the definition of torture in Portugal implied actual injury, whereas the Convention in fact also incorporated an element of acute pain. Pain was a very subjective issue. There was a danger, therefore, with the taser weapons described in the written replies to the List of Issues.

He said there had been problems in the Committee before with States parties proposing the Ministry of Justice as the competent authority in universal jurisdiction. He was therefore concerned about the role of the Attorney General’s Office in this.

In countries using ID cards, the police were often involved in custody for the purposes of identity. Suspicion of criminal activity complicated the case when it came to establishing the time period of detention. Mr. Camara asked how Portugal resolved this.

On anti-terrorism, he asked if there was any way of checking the provisions of counter-terrorist activity and monitoring actions?

He asked for clarification on who paid damages in the event of a complaint procedure adjudicating against a police or public official? Would the State be liable?

Other Experts raised further questions on a range of topics, including the monitoring or supervision of police conformity with the ethical code; the concern that Portugal had not eliminated bodily punishment for juveniles; and the criteria of “reasonability” in time limits for detention of aliens. Experts probed further on the subject of diplomatic assurances and established practices in Portugal, on legal access for political asylum seekers, and on complaints procedures for those held under counter-terrorism measures. An Expert was concerned about conflicting interpretations of rules on solitary confinement. Another asked about inter-prisoner violence, women in prison and the large number of deaths in prison.

There were many other questions, including on convictions of people trafficking for the purposes of sexual exploitation and legal provisions on gender violence generally, on domestic violence, violence against children, discrimination, and the problem of handling migration and xenophobia.

An Expert said it was becoming fashionable to detain foreigners in order to check for illegal immigrants. States should be aware of this dangerous trend in abuse of human rights.
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