COMMITTEE AGAINST TORTURE HEARS RESPONSES OF PORTUGAL

Committee against Torture
AFTERNOON

15 November 2007


The Committee against Torture this afternoon heard the responses of Portugal to questions posed by the Committee on how that country is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to questions raised by Committee Experts on Wednesday, 14 November, the delegation of Portugal, led by José Manuel Dos Santos, Assistant Attorney General, said, on rendition flights, that Portugal participated in European investigations and had appointed a committee of experts. There would be a procedural handbook on monitoring of such flights, and progress on illegal acts concerning rendition was under way.

On guarantees over extradition, the delegation said risks of indefinite sentencing as well as the death penalty on extradited persons were evaluated prior to decisions at the Court of Justice. Irregular entrants were brought before a judge who validated their detention within 48 hours. Those not admitted were lodged at temporary accommodation facilities until they could be returned.

Portugal strictly observed the principles of proportionality and reasonableness in the police use of firearms, and existing rules on coercive measures would continue to apply. Private security companies provided only private security services, and these private firms were inspected by the public police services.

On preventive detention, the delegation said the security police could use this disposition in last resort situations when a suspect could not identify himself in a means foreseen by law. Suspects held for purposes of identification could be held for no more than six hours. There was no such thing as “mass identification procedure” in Portuguese law. Arrests were strictly individual. Incommunicado detention was only possible in one situation, namely if the detainee was suspected of terrorism, violent or organized criminality.

Fernando Marino Menendez, the Committee Expert acting as Rapporteur to the report of Portugal, said he understood there was no obligatory access to doctors for prisoners. Who would carry out medical investigations and when in the event of torture? Was it true that a person had to wait 60 days awaiting processing of an expulsion ruling? During that period, did the person have papers and was he or she allowed to work?

Other Experts asked about protections and safeguards of access to attorneys at border controls, figures for convictions for racist incidents, and about the question of drugs in prison, which surely could only be introduced with official help. An Expert reiterated concern about taser weapons, which appeared to possess “advantages” according to the report, but there were proven risks of harm or death and this was the Committee’s concern.

The Portuguese delegation included 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 Committee will submit its concluding observations and recommendations on the report of Portugal towards the end of its session on Friday, 23 November.

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.

When the Committee next reconvenes in public on Friday, 16 November, at 3 p.m., it will consider the replies of Benin to questions raised by Experts on Thursday, 15 November.

Response of Portugal

Responding to the questions raised by Committee Experts on Friday, 9 November, the delegation of Portugal, led by JOSE MANUEL DOS SANTOS PAIS, Assistant Attorney General, said Portugal had closely followed progress on the elaboration of common core documents for treaty bodies, and there had been consultations between ministries to prepare for ratification of the Optional Protocol to the Convention. As a result the issue of mechanisms for visiting penal institutions had not been dealt with, but would be dealt with shortly.

On consultations during drafting of the report, the delegates said several non-governmental organizations had been consulted during the preparation of the report, as well as the International Organization for Migration and the High Commissioner for Refugees. On police violence, deaths in police custody and issues of punishment of State officials, as well as inter-prisoner violence, the delegation had done its best to implement the Committee’s recommendations. On rendition flights, Portugal participated in European investigations and had appointed a committee of experts. There would be a procedural handbook on monitoring of such flights, and progress on illegal acts concerning rendition was under way.

On guarantees over extradition, the delegation said risks of indefinite sentencing as well as the death penalty on extradited persons were evaluated prior to decisions at the Court of Justice. On the European arrest warrant, the Supreme Court did not apply the reciprocity principal. On the list of crimes and mutual judicial cooperation, Portugal was working within a European framework to simplify cooperation.

Experts had raised several issues relating to anti-terrorism, and in response, the delegation said there was no restriction of guarantees in the criminal procedure under new counter terrorism Acts. The Public Prosecution and the Courts were solely responsible for determining judgments in this regard.

The notion of torture in the Portuguese Penal Code was covered under several articles. The crime of torture had been considered under an Article dealing with crimes against humanity, but the new Penal Code stated that torture was a crime inserted in areas of the Code concerning cultural identity and personal integrity and was not necessarily related to crimes against the civilian population. There were strict rules covering police reporting under the supervision of ministerial authorities.

Portugal strictly observed the principles of proportionality and reasonableness in the police use of firearms, and existing rules on coercive measures would continue to apply. Twenty taser weapons had been bought and they would only be issued to very specific units dealing with the most serious crimes where there was danger to human life. Prison security services were still evaluating the specific controls that would apply to the use of these weapons. All use of firearms was governed by strict procedures. There had been recent evaluations by the Inspectorate General of Internal Administration and the police were strongly discouraged from using firearms in car chases.

The delegation said statistics on abuse of authority were available on the police website, and figures had stabilized since 1999 at around 20 to 25 cases per year, a notable decrease on previous years.

The crimes of sexual abuse of minors and trafficking were included in the Penal Code, and sentences for these as well as crimes of domestic violence were typically one to five years imprisonment. Articles of the Code also covered penalties for child prostitution, child pornography and other abuses of vulnerable groups.

Terrorism was exclusively the prerogative of the judicial police but the Prosecutor’s Office still had full oversight. Principles governing universal jurisdiction had been maintained in Article 5 of the Criminal Code. Other articles covered crimes by Portuguese citizens committed outside the country, including sexual crimes against children, rape and trafficking.

On police detention, there was no such thing as “mass identification procedure” in Portuguese law. Arrests were strictly individual and there were procedural safeguards to prevent mass detention for the purpose of identification.

Within the present framework, there were policies to bring the police closer to minorities, such as Roma. The Women and Children Unit of the gendarmerie was trained to deal with sensitive cases. The security police force worked with non-governmental organizations to ensure advice was available for victims of abuse. There were increasing numbers of female police officers in both police forces.

On preventive detention, the security police could use this disposition in last resort situations when a suspect could not identify himself in a means foreseen by law. Suspects held for purposes of identification could be held for no more than six hours in preventive detention, and this was not necessarily followed by preventive custody (prison).

Rights to legal access were guaranteed under the Constitution. Detention reports had to be drawn up, and the police had up to two hours in which to communicate with the Prosecutor’s Office. Detainees could lodge complaints in a complaints book which was checked by the Inspectorate General of Internal Administration.

Private security companies provided only private security services, and these private firms were inspected by the public police services.

Violation of legally-binding professional standards by judicial administration and justice officials were punishable by disciplinary measures. On police ill-treatment, the delegation provided details on some cases of suspension or enforced retirement of police officers convicted of wrongdoing.

Incommunicado detention was only possible in one situation, namely if the detainee was suspected of terrorism, violent or organized criminality. The public Prosecutor could order incommunicado detention for a maximum of 48 hours, and the detainee was allowed access to a lawyer.

Pretrial detention was allowed only if there were strong indications of commission of crimes punishable by maximum terms of five years or more, or three years in the case of terrorism, violent or organized criminality, or if the person was an illegal entrant or subject to ongoing extradition proceedings on the basis of such a crime committed or alleged. Standard time limits for release in the absence of charges were four months, and in the absence of final conviction, 18 months. These were raised only in cases involving terrorism, violent or organized criminality, or crimes requiring eight-year minimum prison terms.

Portugal had a decreasing trend of prison overcrowding, figures falling to around 12,000, with an occupancy rate of 97 per cent at present. A new women’s prison had been opened in 2005. Inter-prisoner violence was not a serious problem. Judges regularly monitored complaints by inmates in prison facilities.

Compensation values were established by a judge examining the case. The defendant was personally liable. Victims were entitled to demand compensation against the State in cases of ill treatment by a public official, the State and the official being jointly liable.

On expulsion of foreigners, irregular entrants were brought before a judge who validated their detention within 48 hours. Those not admitted were lodged at temporary accommodation facilities until they could be returned. Asylum seekers had to wait at border reception centers for up to five days, after which applicants were permitted entry to national territory. Diplomatic guarantees had not so far been asked for in the expulsion process. Victims of trafficking or actions of illegal migration had been awarded improved residency rights. Delegates provided statistics on countries of origin of asylum seekers, and said all consultations were undertaken in order to identify safe countries.

Trafficking in human beings was being confronted through a national strategy and awareness and training programmes for people working with victims. A Council of Ministers Resolution had approved a new plan to combat domestic violence.

Questions and Observations by Committee Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert acting as Country Rapporteur for the Report of Portugal, said he understood there was no obligatory access to doctors for detainees. Who would carry out medical investigations and when in the event of torture? Was it true that a person might wait for 60 days awaiting processing of an expulsion ruling and during that period, did the person have papers and was he or she allowed to work?

Other Experts asked about protections and safeguards of access to attorneys at border controls, figures for convictions for racist incidents, and the question of drugs in prison, which surely could only be introduced with official help. An Expert reiterated concern about taser weapons, which appeared to possess “advantages” according to the report, but there were proven risks of harm or death and this was the Committee’s concern.

ANDREAS MAVROMMATIS, Chairperson of the Committee, also urged Portugal and all countries to review the effects of taser weapons. He added that domestic violence could be torture, and should not be lightly dismissed when definitions were being discussed.

Response of the Delegation

The delegation replied that rules of detention in police stations stated that detainees had the right to medical access, and/or to the presence of a doctor, and police officers were duty bound to ensure medical attention was given if necessary. On expulsion, the delegation said the 60 days figure was the time limit for deprivation of liberty. The same safeguards on legal access, through the intervention of Portuguese refugee commission, applied to asylum seekers. Three recent and pending cases of racist violence by both police and general public were described, with convictions. There was no doubt about the strength of Portuguese law in relation to racist violence by public officials.

Concluding Remarks

In conclusion, ANDREAS MAVROMMATIS, Chairperson of the Committee, said there had been an excellent dialogue and all the questions had been properly tackled.

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