|
Relatórios Apresentados por Portugal
aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
Direitos Humanos*
Eighth periodic reports of States parties due in
1997 : Portugal. 17/11/98. CERD/C/314/Add.1. (State Party Report)
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
9 OF THE CONVENTION
Eighth periodic reports of States parties due
in 1997
Addendum
Portugal
[9 March 1998]
/ This report combines in one document the fifth, sixth,
seventh and eighth periodic reports of Portugal, which were scheduled
to be submitted on 23 September 1991, 1993, 1995 and 1997 respectively.
For the third and fourth periodic reports, combined in one document,
and the summary records of the Committee meetings at which those
reports were considered, see documents CERD/C/179/Add.2 and CERD/C/SR.895
and 896.
The information submitted by Portugal in accordance with the unified
guidelines for the first part of reports by States parties is contained
in the basic document (HRI/CORE/1/Add.20).
CONTENTS
Paragraphs
Introduction
1 - 5
Part I
GENERAL CONSIDERATIONS
I. DEMOGRAPHIC COMPOSITION OF THE POPULATION
6 - 22
II. GENERAL SITUATION REGARDING RACIAL DISCRIMINATION
23 - 66
Part II
INFORMATION RELATING TO ARTICLES 2 TO 7
Article 2 67 - 90
Article 3 91 - 95
Article 4 96 - 105
Article 5 106 - 234
Article 6 235 - 291
Article 7 292 - 340
Conclusion 341 - 346
Annexes / These annexes can be consulted in
the archives of the Secretariat. /
Annex I: Ministério da administraçao interna, Serviço
de estrangeiros e fronteiras, Divisão de planeamento
Annex II: Ministério da administraçao interna, Serviço
de estrangeiros e fronteiras, Divisão de planeamento - Estatística
do primeiro quadrimestre de 1997
Annex III: Ministério da administraçao interna, Serviço
de estrangeiros e fronteiras, Divisão de planeamento - Estatística
do segundo quadrimestre de 1997
Introduction
1. This report deals with the application in
internal law of the provisions of the International Convention on
the Elimination of all Forms of Racial Discrimination, which was
adopted by the United Nations General Assembly in resolution 2106
A (XX) of 21 December 1965 and came into force on 4 January 1969.
This Convention was approved, for the purposes of accession thereto,
by Act 7/82 of the Assembly of the Portuguese Republic, dated 29
April 1982, and came into force for Portugal on 23 September 1982.
2. This report constitutes the consolidated
text of the fifth, sixth, seventh and eighth reports by Portugal
on the application of the Convention, and covers the period 1991
to 1998. The fact that this is consolidated text of four periodic
reports that should have been submitted in 1991, 1993, 1995 and
1997 and that there was dialogue with the Committee at the time
the previous reports (CERD/C/179/Add.2) were submitted naturally
places limits on its content.
3. It thus includes current information on the
internal application of the Convention, taking account of the new
developments that have taken place. It must be stressed in particular
that the Constitution has undergone a fourth revision (Constitution
Act 1/97) which has recently been approved (September 1997); it
is to the new text of these provisions that reference will be made.
4. In accordance with the guidelines (CERD/C/70/Rev.2)
regarding the form and content of the reports to be submitted by
States parties under article 9, paragraph 1, of the Convention,
Portugal is requested to provide information on the demographic
composition of its population. This has been done, but without any
reference to the racial composition of the population, in line with
the recommendations of the United Nations suggesting that inclusion
of characteristics relating to "race" should be optional.
5. Furthermore, the Portuguese Constitution
establishes the principle of non-discrimination, pursuant to which
no one may enjoy a privilege or benefit, be deprived of a right
or exempted from an obligation on account of his race. However,
in view of the interest shown by the Committee, a fairly detailed
analysis of the demographic composition of the Portuguese population
is given in the first part of the report. This part will also deal
with the general institutional framework, the atmosphere regarding
racism and intolerance in Portugal and the participation of Portugal
in various international meetings concerned with racial discrimination,
racism and xenophobia. The second part of the report is devoted
to comments on the application of articles 2 to 7 of the Convention.
Part I
GENERAL CONSIDERATIONS
I. DEMOGRAPHIC COMPOSITION OF THE POPULATION
A. Foreigners resident in Portugal on
31 December 1996
6. The source of the information that follows
is the annual report of the Aliens and Frontiers Department for
1996.
7. The total number of foreigners resident in
Portugal on 31 December 1996 was 172 912, which amounts to an increase
of 2.7% as compared with the figure for 1995. This is the lowest
percentage increase between 1986 and 1996.
8. The two largest population groups originate
from the European Union, with 43 732 (25.3%) residents, and from
the community of Portuguese-speaking countries, with 97 196 (56.2%)
residents.
9. More than half of these foreigners are resident
in the Lisbon district, 95 348 (55.1%), followed by the districts
of Faro, 21 660 (12.5%), Setubal, 15 985 ( 9.2%), Porto, 10 690
(6.1%) and Aveiro with 6 903 (4.0%). The lowest concentration of
foreign residents is in the district of Portalegre (479 or 0.3%)
and Bragança (259 or 0.1%).
10. African communities represent about 47%
(81 176) of the overall number of foreign residents, while the European
Union accounts for 25.3% (43 732), Central and South America 14.9%
(25 733). The Asian continent accounts for the smallest share of
foreign residents with about 4.1% (7 140).
11. Of the nationalities represented, Cape Verde
comes first with a total of 39 546 (22.9%), with a majority of men,
23 908 (60.5%), and only 15 638 (39.5%) women. The Brazilian community
comes second with 20 082 residents, 10 884 men (54.2%) and 9 198
women (45.8%).
12. With regard to their distribution by sex,
the majority of foreign residents are male (100 987, or 58.4%),
while 71 925 are female (41.6%).
13. 86 810 (53.5%) of these foreign residents
are active while 75 399 (46.5%) are not active. Of the active population,
19.3% (16 772) are employers or self-employed, while 80.7% (70 038)
work for another employer. Of the non-active foreign residents,
students, with 44.3% (33 375) and housewives, with 44.0% (33 190)
account for almost the entirety of this group. There are 5 450 foreign
residents who are retired (7.2%).
14. Analysis of movements recorded in 1996 shows
that 7 767 foreign residents entered Portugal: 4 283 (55.1%) were
men and 3 484 (44.9%) were women. These persons mostly cam from
countries of the European Union, with 2 717 (35.0%), and Africa,
with 2 649 (34.1%). Cape Verde with 1 068 persons and Brazil with
829 foreign residents were the countries that contributed most to
this flow. The age structure of the new foreign residents shows
that the age group 25/29 years was the most representative with
1 356 (17.6%) persons.
15. With regard to cessation of residence (departures),
3 171 foreigners left the country: 1 737 males (54.8%) and 1 434
females (45.2%). The most nationalities most represented were Brazilians
with 648 (20.4%) of departures and Venezuelans with 503 (15.9%).
The age group experiencing the most movement was the group aged
20/24 years with 617 (19.5%) cessations of residence.
B. Gypsies
16. Without making reference to race - which
is not permitted under the Portuguese legal system as we have emphasized
above and which is deemed by the United Nations an optional criterion
- it must be pointed out that there are about 40 000 Portuguese
citizens who may be considered to be Gypsies and who must be offered
- like other Portuguese citizens - conditions for harmonious insertion
into Portuguese society. This has led the Government, by resolution
157/96 of the Council of Ministers, published in the Official Journal,
series 1 - B, of 16 October 1996, to set up a working group for
the equality and insertion of the Gypsies. This working group completed
its work in January 1997 and therefore ceased to exist, being replaced
by a group to follow up the measures proposed in the report submitted
by it. The Gypsies have been in Portugal since the XVth century.
They have been Portuguese citizens since the Constitution of 1822
and the Constitutional Charter of 1826 which eliminated inequalities
based on race and recognized the Portuguese citizenship of persons
born on Portuguese territory.
C. Foreigners resident in Portugal on
31 August 1997
17. These data also come from the Aliens and
Frontiers Department. They are more recent and give a more accurate
idea of the number of foreigners resident in Portugal. On 31 August
1997, the resident foreign population numbered 174 638 persons,
of whom 49 014 originated from Europe and 45 360 from the European
Union. In the latter group, Spaniards (9 683), Germans (8 213) and
French citizens (5 326) were the most numerous.
18. The largest group of foreign residents comes
from Africa (81 472), with 16 289 from Angola, 39 655 from Cape
Verde, 12 743 from Guinea Bissau, 4 413 from Mozambique and 4 278
from Sao Tome and Principe. Thirty-six thousand one hundred and
ninety-seven originated from the Americas, with 20 045 Brazilians.
Asia was the smallest group, with only 7 190 persons.
Table 1
Foreign population resident in
Portugal on 31 August 1997
(by country of origin)
D. Acquisition and retention of Portuguese
nationality
19. Problems of racial discrimination arise
essentially within the country and are not connected with nationality.
Nevertheless, the acquisition or retention of Portuguese nationality
is a factor that helps to explain Portugal's attitude to the foreigners
(sometimes associated with problems of xenophobia) who have integrated
into the multiracial and multiethnic society of Portugal. Since
the Constitution forbids the conducting of surveys on the racial
or ethnic component of the population, it is impossible - despite
awareness of its composition - to measure in figures the different
ethnic groups that make up Portuguese society. Tables 2 and 3 for
the year 1997 show that applications to acquire or retain Portuguese
nationality are nearly always accepted, that their number was highest
in the case of Cape Verde, and that the busiest month in the period
January-August 1997 was February.
Table 2
Acquisition or retention of Portuguese nationality
(January - August 1997)
(not available in electronic form)
Table 3
Granting or retention of Portuguese
nationality
(January - August 1997)
| MONTH |
COUNTRY
|
| . |
Angola |
Cape Verde |
Guinea Bissau |
Mozambique |
Sao Tome and Principe |
| . |
Granted |
Refused |
Granted |
Refused |
Granted |
Refused |
Granted |
Refused |
Granted |
Refused |
| . |
Grant'd |
Retain'd |
. |
Grant'd |
Retain'd |
. |
Grant'd |
Retain'd |
. |
Grant'd |
Retain'd |
. |
Grant'd |
Retain'd |
. |
| January |
. |
. |
. |
. |
. |
. |
. |
. |
. |
1 |
. |
. |
. |
. |
. |
| February |
2 |
. |
2 |
4 |
3 |
12 |
. |
. |
3 |
. |
1 |
5 |
1 |
. |
4 |
| March |
. |
. |
1 |
4 |
1 |
. |
. |
. |
. |
. |
. |
. |
. |
. |
1 |
| April |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
| May |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
| June |
. |
. |
. |
. |
1 |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
| July |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
| August |
. |
. |
. |
1 |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
. |
| TOTAL |
2 |
0 |
3 |
9 |
5 |
12 |
0 |
0 |
3 |
1 |
1 |
5 |
1 |
0 |
5 |
Table 4
Extraordinary regularization
of clandestine immigrants
(1996)
From 11 June to
11 December 1996 |
Reg.dir.
Lisbon |
Reg.dir.
Coimbra |
Reg. dir.
Porto |
Reg. dir.
Faro |
Reg. dir.
Ponta Delgada |
Reg. dir.
Funchal |
Total |
Angola
Algeria
Bangladesh
Brazil
Cape Verde
China
Guinea Bissau
Hungary
India
Morocco
Mozambique
Pakistan
Romania
Russia
Sao Tome + Principe
Other |
8 323
47
743
1 398
6 580
961
5 030
4
899
314
365
1 735
411
34
1 478
2 500 |
224
1
272
30
139
96
17
2
65
23
8
11
5
28
161 |
415
3
7
474
54
366
79
4
2
92
11
9
11
13
32
218 |
287
14
2
170
188
136
101
12
49
16
2
27
1
11
149 |
2
5
18
6
1
1
106 |
4
11
2
2
1
1
63 |
9 255
65
752
2 330
6 872
1 608
5 308
26
915
520
416
1 754
461
54
1 549
3 197 |
| Total |
30 822 |
11 082 |
1 790 |
1 165 |
139 |
84 |
35 082 |
E. Extraordinary regularization of
clandestine immigrants
20. The extraordinary regularization of clandestine
immigrants is part of the effort to integrate the different elements
of Portuguese society into a multiethnic and multiracial society.
Because of the large numbers of foreigners, mostly from the Portuguese-speaking
countries, entering the country in an irregular manner, two special
campaigns for the extraordinary regularization of clandestine immigrants
were organized, one in 1992 and the other from June to December
1996, so that these persons might enjoy full status in Portugal
together with the economic, social and cultural rights conferred
by such status (see also paragraph 59, in section D.4 of chapter
II below).
21. The results of this regularization of clandestine
immigrants were as follows: from 11 June to 11 December 1996 (period
of regularization) a total of 35 082 persons were legalized: 9 255
from Angola, 2 330 from Brazil, 6 872 from Cape Verde, 5 308 from
Guinea Bissau, 416 from Mozambique and 1 549 from Sao Tome and Principe.
Those with no initial links with Portugal include 1 754 Pakistanis
and 1 608 Chinese.
22. Three sets of statistics relating to the
demographic composition of the population of Portugal for 1996 and
1997 prepared by the Plan Division of the Aliens and Frontiers Department
will be found in annex. / These annexes may be consulted
in the archives of the Secretariat. /
II. GENERAL SITUATION REGARDING RACIAL
DISCRIMINATION
A. Observations of the Committee on the
Elimination of Racial Discrimination on the submission of the third
and fourth reports
23. When the third and fourth periodic reports
of Portugal (CERD/C/179/Add.2) were submitted in March 1991, the
Committee formulated several observations (see the Committee's report
submitted to the General Assembly, A/46/18, paragraphs 110 to 126).
Specific points of information on the subjects raised by the Committee
during discussion of the previous reports are given below, even
if several of these points will be dealt with in greater detail
in the second part of this report.
1. Demographic composition of the population
24. The demographic composition of the population
is a function of Table 1 above showing the foreign population. The
rate of unemployment is currently 7.3%. With regard to education,
the objective for 1999 is to offer pre-school education to 90% of
children aged five, 75% of children aged four and 76% of children
aged three; to achieve this, 45 000 teaching posts will be created,
through public investment for the creation of 567 classrooms per
year.
2. Mother tongue of the population
25. The mother tongue of the population is Portuguese.
A minority language with a very few speakers, Mirandês, exists
in the north-east of the country; optional classes exist in the
local schools for those who wish to follow them.
3. Campaigns of extraordinary regularization
of clandestine immigrants
26. With regard to residence permits, there
have been two campaigns for the extraordinary regularization of
clandestine immigrants, as already stated (see paragraphs 20 and
21), showing evidence of Portugal's tendency to assimilate foreigners.
The figures for the campaign that took place from June to December
1996 are given in Table 4. This tendency to assimilate is also evidenced
in the granting or retention of nationality (see paragraph 19 above).
The criteria involved for the granting of Portuguese nationality
are mentioned in connection with article 5 under the heading of
"Political rights" (see paragraphs 138 to 145 below).
4. Strengthening of European identity
27. The strengthening of European identity mentioned
and maintained in paragraph 5 of article 7 of the new text of the
Constitution does not affect non-European citizens, who retain all
the rights recognized to them by a democratic society. This strengthening
of European identity refers specifically to the regional level,
in the European international organizations (European Union, Council
of Europe, etc.), and the effort towards economic, social, political
and human integration pursued by Portugal.
5. Legal consultation offices
28. The legal consultation offices mentioned
below (see paragraphs 72 to 74 and 115) are currently 11 in number.
They are available to all citizens who require information on the
functioning of justice and are desirous to know their rights without
having to go through a lawyer, particularly on account of the costs
a consultation would normally involve.
6. High Commissioner for Immigration and Ethnic
Minorities
29. The High Commissioner for Immigration and
Ethnic Minorities is currently responsible for questions associated
with the problems of discrimination, racism and xenophobia. He follows
in the wake of institutions such as the Commission for the promotion
of human rights and equality in education and represents the effort
of the Portuguese State to ensure combat against discrimination,
racism and xenophobia. This High Commissioner comes under the authority
of the presidency of the Council of Ministers (for more details,
see paragraphs 54 and 55 below).
7. Jurisprudence relating to Gypsies
30. With regard to jurisprudence relating to
Gypsies, some new developments are mentioned in the commentary to
article 2, that is, in section B, entitled "Jurisprudence relating
to minorities" and in the commentary on article 4 entitled
"Recommendation 72/A/96 of the Ombudsman" (see paragraphs
80 to 90, 104 and 105 below).
8. Skinheads
31. On the question of skinheads, reference
should be made to the commentary on article 4, that is, in section
B, entitled "The MAN decree of the Constitutional Court"
(see paragraphs 100 to 103 below).
9. Education
32. The personal identity of citizens is always
the ultimate objective of education. In this respect, educational
programmes on human rights have been established and special measures
are taken for the education of the most disadvantaged groups. The
"Inter-cultures" data bank shows that the class of the
population that suffers the worst failures and has the most school
drop-outs is the Gypsies. For fuller information, see the commentary
on article 7 in paragraphs 292 to 340 below.
B. Important provisions of the Constitution
1. State based on the rule of law
33. Portugal is a social, democratic and non-discriminatory
State based on the rule of law (arts. 1 and 2 of the Constitution).
In regard to racial discrimination, some more specific provisions
of the Constitution may be mentioned. Thus, a Portuguese citizen
is a person considered to be a citizen by the law or by an international
convention (art. 4). Article 13 sets out the general principle of
non-discrimination and equality, providing in paragraph 2 that "no-one
may be privileged, favoured, disadvantaged, deprived of a right
or exempted from a duty on account of his or her ascendancy, sex,
race, language, territory of origin, religion, political or ideological
convictions, education, economic situation or social condition".
2. Foreigners
34. As it has been said, the fact of being foreign
sometimes evokes in nationals a different, and possibly discriminatory
attitude to foreigners. However, in regard to foreigners, stateless
persons and European citizens, article 15 of the Constitution establishes
the following:
- "1. Foreigners and stateless persons residing in Portugal
shall enjoy the same rights and be subject to the same duties
as Portuguese citizens.
- 2. Political rights, the exercise of public functions that are
not of an essentially technical nature and the rights and duties
which the Constitution and the law reserve exclusively for Portuguese
citizens are excluded from paragraph 1.
- 3. Citizens of the Portuguese-speaking countries may be granted,
by means of an international convention and under conditions of
reciprocity, rights that are not conferred on foreigners, except
for access to titularity of organs of power and organs of the
government of autonomous regions, service in the armed forces
and diplomatic careers.
- 4. The law may grant to foreigners resident in the national
territory, in conditions of reciprocity, active and passive electoral
capacity to elect members of the organs of local power.
5. The law may also grant to citizens of the member States of
the European Union resident in Portugal, in conditions of reciprocity,
the right to elect and to be elected as deputies to the European
Parliament.".
3. Personal rights of every citizen
35. In its Title II, "Rights, freedoms
and personal guarantees", the Constitution in article 26, under
the heading "Other personal rights", provides in paragraph
1 that "all are recognized to have the rights to personal identity,
development of personality, civil capacity, citizenship, good name
and reputation, image, speech, protection of the intimacy of private
and family life, and legal protection against any form of discrimination".
This right to the enjoyment of personal rights is addressed to all,
and cannot be diminished on account of race, colour or the fact
of being a foreigner.
4. Asylum, expulsion, extradition
36. Situations connected with the right to asylum,
expulsion and extradition could give rise to discriminatory treatment
or abusive behaviour, even on the part of the authorities, if not
carefully regulated. These situations concern foreigners who are
sometimes not of the same colour or race, and they therefore need
to be taken into account in this report on racial discrimination.
37. In regard to expulsion, extradition and
the right to asylum, article 33 stipulates:
- "1. Portuguese citizens cannot be expelled from the national
territory.
- 2. Expulsion of anyone who has entered or is found illegally
on the national territory, who has obtained a residence permit
or has submitted an application for asylum that has not been refused,
shall be determined by a judicial authority only; the law shall
provide for expeditious decision.
- 3. Portuguese citizens may only be extradited from the national
territory, in conditions of reciprocity established by international
convention, in cases of terrorism and organized international
crime, providing the juridical order of the requesting State contains
guarantees of fair and equitable procedure.
- 4. No-one can be extradited for political reasons or crimes
that carry, under the law of the requesting State, the death penalty
or a penalty resulting in irreversible damage to physical integrity.
- 5. No-one may be extradited for crimes punishable, under the
law of the requesting State, by a penalty or safety measure depriving
or restricting freedom in perpetuity or for an indefinite duration,
except in conditions of reciprocity established in an international
convention and on condition that the requesting State offers guarantees
that such penalty or safety measure will not be applied or executed.
- 6. Extradition can only be determined by a judicial authority.
- 7. The right of asylum is guaranteed to aliens and stateless
persons who are persecuted, or under a serious threat of persecution,
in consequence of their activities on behalf of democracy, social
or national liberation, peace between peoples or liberty or human
rights of individuals.
- 8. The status of political refugees is defined by law.".
5. The question of East Timor
38. The question of East Timor is important
for Portugal. Under the heading "Self-determination and independence
of East Timor", article 293 of the Constitution stipulates:
- "1. Portugal remains bound by her responsibilities under
international law to promote and guarantee the right to self-determination
and the independence of East Timor.
- 2. The President of the Republic and the Government have the
power to take all necessary action for achieving the objectives
stated in paragraph 1.".
39. It is also important to ensure proper reception
of people from Timor; a commission has therefore been set up for
their reception (see below paragraphs 58, 221 and 222).
C. On some incidents of racial
discrimination
40. A brief description follows of the general
situation in Portugal in regard to racism and racial discrimination,
without prejudice to the greater details given in the second part
of this report. Information will also be found further on concerning
the legal measures taken and the texts that are applicable.
1. Incidents with Blacks
41. Since 1985 there have been a number of violent
actions of a racist nature. They are essentially the making of skinheads
inspired by a neo-Nazi ideology and extreme radicalism, and Blacks
are their main target.
42. In 1989, a well known far left political
leader was assassinated. The measures then decreed by the public
authorities resulted in a considerable fall-off in this type of
action after 1989, to the extent that the Constitutional Court decided
that it could not declare the extreme right-wing organization, the
National Action Movement (MAN), defunct as it considered that it
had already ceased to exist. Thus, even if the perpetrators of the
crimes were members of the MAN, there was no proof that there was
a link between the crimes and the organization itself (see commentary
on article 4, in paragraphs 100 to 103 below).
43. In January 1992, an African was found dead.
The end of 1992 was also marked by a wave of violence in football
stadia provoked by skinheads, probably of a racist nature. In February
1993, another African was killed at Feijó, and in June 1993
another African was also found dead; the persons who committed these
crimes are now in prison.
44. In the meantime, other incidents involving
skinheads were reported. But several incidents caused by young Blacks
were also reported. These may be due to the difficult situation
they are experiencing, but they may also be a form of revenge. These
actions usually occur in big urban areas.
45. Other incidents of a racist or xenophobic
nature have been observed, the (occasional) submission of petitions
with a large number of signatures to the authorities protesting
against the installation of individuals of a certain race or colour
(Gypsies and black Africans in particular), or demonstrations organized
to the same end. Racist mural graffiti attributed to school students
have also be found, and some fights of a racist character have occurred
in certain establishments open at night, but these incidents have
not been very common. Gypsies are the most common victims of these
attacks, followed by Blacks and people returning from the former
colonies.
46. In 1995, some very serious incidents broke
out, disturbing the apparent peace. On 10 June 1995, the day commemorating
Camões and the Portuguese communities, a group of 30 skinheads
armed with knives burst into a neighbourhood generally frequented
by people in search of nocturnal entertainment. Their violence consisted
in pursuing and attacking any Black they might meet, and as a result
one man was assassinated and 12 injured. Nine skinheads were captured
by the police and the judge decided that they should await judgement
in prison (preventive detention).
47. This act of violence was almost unanimously
condemned. The Democratic People's Union (UDP), a party of the extreme
left, associated it with the comments made on the same day by certain
figures identified with the extreme right. This act was also condemned
by the youth association "Olho vivo", which runs an antiracist
telephone line. "SOS-racism", an NGO, also condemned this
act of violence. The Lisbon municipal authority also criticized
it through its division of social support and the municipal council
for immigrant communities and ethnic minorities.
48. At the funeral of the victim - Alcindo Monteiro
- the following Thursday at Barreiro, the bishop of Setubal conducted
the ceremony and made a speech against racism and discrimination.
The bishop's presence was seen as important, for he has acquired
a considerable reputation in matters of human rights as a result
of his indefatigable efforts in this domain. In the days that followed,
there were antiracist demonstrations and a few acts of violence.
However, there were no sequels to these affairs and no incident
of such gravity has occurred since then. The skinheads were given
heavy prison sentences in 1997, going as far as 18 years for six
of them.
2. Incidents with Gypsies
49. The other sector in which phenomena of intolerance
and discrimination are to be found is among the Gypsy population.
For this population, a jurisprudence that will be examined below
(paras. 80 to 90) has had to make its way within the national legal
system for equality to be re-established.
50. Gypsies are sometimes the targets for threats
or measures by certain individuals, and in a few instances by public
authorities, to have them expelled from a place of residence. In
1996, under strong pressure from the population, the mayor of Vila
Verde decided to have the housing accommodating the Gypsy population
destroyed on the allegation of drug trafficking; the Civil Governor
(Prefect) of the district of Braga immediately opposed this measure,
taking his complaint to the Ombudsman, who formulated a recommendation
calling upon the mayor to reinstate the Gypsies (see, under the
commentary on article 4, recommendation 72/A/96 of the Ombudsman,
in paragraphs 104 and 105 below).
51. The procedure is currently running its course.
Meanwhile, the family of the head of the Gypsy community - and the
head himself - have been the object of criminal proceedings for
drug trafficking. Only a few individuals have been convicted, and
the innocence of the head of the family and most of the Gypsies
has been established by the facts. Because of his intervention,
the Prefect of Braga has received strong support from all intellectual
sectors of Portuguese society and from several political parties.
52. After this description of the Portuguese
situation, it is useful to briefly analyse the recent measures adopted
internally and to indicate the significance of Portugal's participation
in the activities of international organs.
D. Recent internal measures to combat
racism and intolerance
53. In the framework of Portuguese domestic
law, several measures have been implemented to combat possible violations
of the principle of non-discrimination and the protection of ethnic
minorities, whether they be composed of Portuguese citizens or of
foreigners.
1. High Commissioner for immigration and the
ethnic minorities
54. Decree law 296-A/95 of 17 November, relating
to the Organization Act of the thirteenth constitutional Government,
provided for the creation of the High Commissioner for immigration
and the ethnic minorities and placed him under the presidency of
the Council of Ministers. The creation of this post was determined
by the new challenges facing Portugal as a country of immigration,
for Portugal has traditionally been a country of emigration and
it is only quite recently that it has become a country of immigration.
This has given rise to the need to create measures to integrate
the families of immigrants into Portuguese society. The ultimate
objective of this policy is to prevent xenophobia, intolerance and
discrimination against foreigners resident in Portugal.
55. The High Commissioner has four major functions:
- 1. To stimulate consultation and dialogue with entities representing
immigrants or ethnic minorities in Portugal and to study the question
of the insertion of immigrants and ethnic minorities, in collaboration
with the social partners, social solidarity institutions and other
public or private entities active in this domain;
- 2. To help to improve the living conditions of immigrants in
Portugal, so as to make it possible for them to integrate into
society, with respect for their identity and cultures of origin.
He must also help to ensure that all citizens residing legally
in Portugal enjoy the same dignity and opportunities, so as to
eliminate discriminations and combat racism and xenophobia;
- 3. To monitor the action of the different services of the public
administration competent in regard to the entry, stay and departure
of foreign citizens in Portugal, respecting their functions and
those of the competent members of the Government. He must collaborate
in the definition and follow-up of policies to actively combat
exclusion, by stimulating interdepartmental horizontal action
by the services of the public administration and the Government
departments intervening in the sector;
- 4. To propose measures, notably of a regulatory nature, to support
immigrants and ethnic minorities.
2. Working Group for the Equality and Insertion
of Gypsies
56. The Working Group for the Equality and Insertion
of Gypsies was established by Council of Ministers resolution 157/96
of 19 October and addresses two fundamental objectives: on the one
hand, detailed analysis of the difficulties of the Gypsies in achieving
insertion into Portuguese society, and, on the other hand, the development
of proposals to help to eliminate these situations of social exclusion
(see, in paragraphs 223 to 234 below, the commentary on article
5 relating to the special measures for the integration of ethnic
minorities, and, in paragraphs 299 to 313, the comments on article
7 dealing with the education of Gypsies).
57. In January 1997, the Working Group (chaired
by the High Commissioner for immigration and the ethnic minorities)
submitted a progress report whose basic features were recognition
of a certain tendency in Portuguese society towards exclusion and
indifference towards Gypsies. Once the report had been submitted
and suggestions formulated the Working Group was dissolved and replaced
by a group responsible for monitoring the application of the measures
for the integration of Gypsies.
3. Interministerial Commission for the Reception
of the Timorese Community
58. In the framework of the implementation and
respect for the principle of non-discrimination, the Interministerial
Commission for the reception of the Timorese community was created
by resolution 53/95 (Official Journal, 2nd series, 7 December 1995).
This Commission has the task of coordinating and assessing proposals
aimed at the development of integrated policies favouring the reception
and insertion of the Timor community in Portugal (see also the commentary
on article 5 in paragraphs 221 and 222 below). The creation of this
Commission is naturally related to recognition of the right to self-determination
for East Timor, to which Portugal is deeply committed. In the more
global perspective of promoting self-determination in East Timor,
Portugal is giving support to the Timorese who seek refuge in Portugal.
4. Process of extraordinary regularization of
clandestine foreign immigrants
59. Law 17/96 of 24 May organized, as we have
already described (paragraphs 20 to 22), a process for the extraordinary
regularization of clandestine foreign immigrants. This was coordinated
by the National Commission for Extraordinary Regularization (CNRE)
which examined the applications. This regularization was necessary
in order to allow foreigners to fully enjoy their social, economic
and cultural rights, particularly in regard to work, social services
and access to housing, since rehousing programmes are only open
to persons in a regular situation. This process of extraordinary
regularization took place between 11 June and 11 December 1996.
The figures relating to this extraordinary regularization are given
in Table 4 above.
E. Participation of Portugal in the
activities of international organs
60. At the international level, the position
of Portugal reflects the provisions of its Constitution and its
internal policy. Thus, Portugal undertakes to respect human rights
and participates in the adoption of measures for their promotion,
and undertakes to introduce them and ensure respect for them under
domestic legislation.
1. Council of Europe: "All different, all
equal" campaign
61. Portugal participated actively in the "All
different, all equal" campaign under the auspices of the Council
of Europe. This campaign started in December 1994, proceeded with
various youth activities in the year 1995, in 1996, and was renewed
for the year 1997. It was coordinated in Portugal by the Secretary
of State for Youth and its chief support came from the Portuguese
Youth Institute. Several ministries were represented in the organization
of the campaign, including the Aliens and Frontiers Department and
the Ministry of Labour.
62. But the campaign did not only involve representatives
of public bodies. There were numerous nongovernmental organizations,
students' association and even youth groups taking part. A fund
was set up and enabled activities of all sorts to be carried out,
all of them associated with awareness of the problem of racism and
xenophobia; in 1995, a youth train joined Portugal with other countries
of Europe, destination Strasbourg.
63. In the framework of the Ministry of Justice,
it was stressed to the entities more directly involved with the
organization of the campaign that it should not be limited to young
people but should draw the attention of the whole of society to
certain problems, such as those of foreigners and their rights,
and should include certain groups in all activities, such as the
group of children received into special schools because of family
difficulties, and minors in general. The proposals of the Ministry
of Justice were formulated with the collaboration of the Bureau
of Documentation and Comparative Law of the Office of the Procurator-General
of the Republic, the Institute for Social Reinsertion and the prison
services.
2. Council of Europe: European Commission against
Racism and Intolerance
64. The European Commission against Racism and
Intolerance of the Council of Europe operates in a framework composed
of country groups and carries out its action by means of country
by country analysis in which countries act as rapporteurs on each
other within each group. Following the presentation of the reports
on each country, the Commission formulates recommendations on legislative
measures of a civil, administrative and penal nature to be adopted
in the country concerned and suggests social measures to that country.
Portugal thus replied to a questionnaire from the Commission on
the various problems relating to racism and xenophobia. Portugal
was also designated rapporteur for Luxembourg, Romania and Cyprus.
After preparing its reply to the questionnaire on its internal situation,
Portugal accepted and discussed the proposed recommendations for
Portugal. The Commission completed its work and put the results
on the Internet (http://www.ecri.coe.fr/).
3. United Nations Organization
65. Portugal responds frequently to the questions
put to it, for example, by the Office of the High Commissioner for
Human Rights, and takes an active part in the work of the Commission
on Human Rights.
4. European Union
66. In the framework of the European Union,
Portugal was a co-author of the joint action of 15 July 1996 adopted
by the Council on the basis of article K.3 of the Treaty establishing
the European Union, concerning action against racism and xenophobia,
and the institution of the European Monitoring Centre on Racism
and Xenophobia. It also played an active part in the European Year
against Racism decreed by the European Union, organizing several
actions of a diverse nature to draw the attention of citizens to
the problem of racism and intolerance. Finally, it has taken part
in Community meetings that have tried to identify the problem in
order to prepare for closer harmony between legislation on these
issues at the European level.
Part II
INFORMATION RELATING TO ARTICLES 2 TO 7
Article 2
A. General considerations
67. The previous reports (CERD/C/101/Add.3 of
1985, CERD/C/126/Add.3 of 1988 and CERD/C/179/Add.2 of 1990) and
their presentation showed Portugal's determination to condemn all
forms of racial discrimination and to adopt measures to proscribe
them and to afford protection, in general, to rights, freedoms and
guarantees. This determination is to be found in various provisions
of the Constitution and domestic legislation attempts to reaffirm
it in a concrete manner. The texts mentioned below reflect this
concern.
1. State of siege and state of emergency
68. Law 44/86, of 30 September, concerning the
regimes of state of siege and state of emergency, provides that
their declaration shall in no way affect rights to life, integrity
and identity of persons, civil capacity and citizenship, the principle
of non-retroactivity of criminal law, the right of persons accused
to a defence, and freedom of conscience and religion. In cases where
the exercise of rights, freedoms and guarantees may be suspended,
the principle of equality and non-discrimination is always respected.
69. The Constitution has also, in the text maintained
in the fourth revision of the Constitution, article 19, preserved
the provision that deals with these two situations, clarifying their
scope (paras. 2 and 3) while stressing the principles of proportionality
and the need for the measures adopted by the declaration.
70. Citizens whose rights, freedoms and guarantees
have been violated by the declaration of the state of emergency
or by an unconstitutional or illegal measure adopted during its
application are entitled to an indemnity, according to the general
terms of the law, their right of access to the courts being in no
way affected for the defence of rights, freedoms and guarantees
infringed or threatened with infringement.
2. Code of Penal Procedure
71. The new Code of Penal Procedure, adopted
by decree-law 78/87, of 17 February, aimed to construct a system
making it possible to attain the aims of the realization of justice
and the preservation of the fundamental rights of individuals while
at the same time ensuring the security of the community. The solutions
adopted have applied the principle of equality of arms in procedure
and make for the strengthening of the rights to defence of the accused
(art. 61). To this end, for example, the intervention of an interpreter
is foreseen in procedures in which someone who is not fluent in
the Portuguese language is involved, without that person incurring
any costs (art. 92).
3. Access to law and to the courts
72. In December 1987, the Government legislated
on access to law and to the courts. A system promoting the right
to information and legal protection, foreseen by article 20 of the
Constitution was thereby instituted (see also, in paragraphs 109
to 113, the commentary on article 5 concerning access to justice).
This helps to ensure that no-one is prevented, by their social or
cultural condition or by the lack of financial means, from asserting
or defending their rights. Legal information is of paramount importance
in that it establishes a link between citizens and justice. In this
spirit, reception services are gradually being created to work with
the courts and the judiciary services.
73. Legal consultation offices give out legal
information free of charge through lawyers appointed for this purpose
by the bar, the costs being borne by the Ministry of Justice. There
are at present 11 such offices, at Lisbon, Porto, with an extension
at Guimarães, Coimbra, Evora, Lamego, Covilhã, Ponta
Delgada, Vila do Conde, Faro, Hangra do Heroísmo and Vila
Nova de Gaia.
74. It should be stressed that foreigners and
stateless persons residing legally in Portugal enjoy this right
to legal protection. This same right is also recognized to non-resident
foreigners who are nationals of countries where a similar legal
provision is applicable to Portuguese citizens.
4. Access by foreigners to legal aid
75. Here we have a situation in which the Constitutional
Court has played a predominant role. When it decides three times
- in three different proceedings - that a law is unconstitutional,
that law is expunged from the legal order. This is what has happened
to the former text of the legislation on legal aid. In July 1993,
and in August 1994, the Aliens and Frontiers Department refused
to grant asylum to two foreign nationals, who wished to appeal against
this decision. Not having the means, they sought free assistance
from a lawyer.
76. They came up against the obstacle of the
legislation on legal aid (decree-law 387-B/87 of 29 December and
decree-law 391/88 of 26 October). Article 7 of the first legislative
text contained the provision that "foreigners and stateless
persons habitually resident in Portugal enjoy the right to legal
protection". And article 1 of the second legislative text provided
as follows:
- "1. For legal protection to take effect, usual residence
of foreigners and stateless persons holding a valid residence
permit mentioned in paragraph 2 of article 7 of decree-law 387-B/87,
of 29 December, implies regular and continuous residence in Portugal
for a period of not less than one year, except where there is
a legal regime arising out of a treaty or international convention
which Portugal is bound to respect;
2. The foreigner to whom asylum is granted or who enjoys the status
of refugee may benefit from legal protection from the date on
which the right to asylum or recognition of refugee status was
granted."
77. From these articles it was deduced that
asylum seekers could not enjoy the benefit of legal aid, although
possessing the prerequisite conditions for it to
be granted. The judges did not apply the texts
in question for infringement of articles 13.2, 15.1 and 2, and 20.1
and 2 of the Constitution. The questions were referred in a compulsory
appeal to the Constitutional Court which ruled that the legislative
texts in question were unconstitutional. These decrees were published
in the Official Journal, 2nd series, of 1 August 1995. The third
decree of the Constitutional Court on this question was handed down
as number 316/95 and published in the Official Journal, 2nd series,
of 31 October 1995.
78. A declaration of unconstitutionality with
general binding force followed, expunging the parts of the legislative
texts mentioned from the Portuguese legal order, and in 1996 the
legislation was amended by law 46/96 of 3 September which now permits
foreigners whose situation is not regularized to seek legal aid
for their regularization proceedings.
5. Broadcasting and television
79. Law 87/88, of 30 July, concerns exercise
of the activity of broadcasting within the national territory. According
to article 8, freedom of thought in broadcasting includes the fundamental
right of citizens to information providing for ideological pluralism
and free expression, and the confrontation of different strands
of opinion and of thought that are essential to the practice of
democracy. But the broadcasting of any programme or message inciting
to violence or contrary to criminal law is prohibited. The same
goes for law 58/90 of 7 September on television.
B. Jurisprudence relating to minorities
80. Certain decisions in jurisprudence connected
with racial discrimination must be mentioned: in practice, jurisprudence
also contributes to the implementation of international conventions.
In particular, reference must be made to affairs relating to legislation
or to racist acts.
1. Constitutional jurisprudence
81. By its decision 14/80, the Constitutional
Commission ruled that the rural service regulations of the National
Republican Guard were contrary to the Constitution on the grounds
that they infringed the principle of non-discrimination: the regulations
allowed these police to treat Gypsies in a discriminatory manner.
82. Following this, the Constitutional Court,
in its decision 452/89, gave its ruling on article 81.2 of the service
regulations of the National Republican Guard, declaring it contrary
to the Constitution, as decided by the Constitutional Commission.
83. Article 81 of the regulations provided that
in regard to nomads (an expression not deemed to be unconstitutional
by the Constitutional Court), the National Guard should exercise
particular surveillance over caravans and groups of nomads habitually
travelling the roads, living from commerce or other activities associated
with an itinerant life. The Guard maintains surveillance of their
travels so as to prevent the perpetration of crimes against property
or people in the countryside and public places where the caravans
usually stop. Article 81.2 also provided that, in case of suspicion,
searches could be carried out in caravans on the road or at resting
places, always identifying the leaders of the groups. When the destination
of a journey was known to an agent of the Guard, it was his duty
to inform the commander of the arrival duty station.
84. The Constitutional Court decided that night
searches without a judicial warrant were unconstitutional; the regulations
of the National Guard were therefore judged to be unconstitutional
on this point (this decision was also analysed in Portugal's previous
report (CERD/C/179/Add.2 of 31 October 1990, in paragraphs 50 to
54)).
2. Administrative jurisprudence
85. The Administrative Court of First Instance
of Porto examined the regulations of the municipality of Vila do
Conde which required all Gypsies with no official residence to report
their arrival in the area of the municipality, and to leave it within
eight days. This measure gave rise to strong indignation in the
press and sharp reactions of disapproval on the part of the Procurator-General
of the Republic and the Ombudsman.
86. Following these reactions, the municipality
adopted new regulations, revoking the old ones, stressing that the
new text was aimed at anyone, whether or not they were Gypsies,
who put up any clandestine form of housing, stating that such housing
should be destroyed. The Public Ministry contested this act which
continued to be illegal because in reality it was aimed at the Gypsies,
and in this sense violated the principle of equality.
87. The Court did not refer to the problem of
the Gypsies as such, but to the question of the invalidity of the
administrative act. It decided, however, that the essential problem
was that of the persons affected by the act, the order to destroy
housing and the impossibility of rebuilding it in any other place
in the area of the municipality. The central point of the decision
was that the act, too general and abstract, could therefore not
have force of law because it was impossible to identify the persons
at whom it was directed; hence, the act was null and void.
88. To summarize the Court's decision, an administrative
act which is not based upon an individual situation and which does
not in itself single out the individual to whom it is intended to
be directed is null and void because the essential element of identification
is missing. Reference to persons putting up housing does not correspond
to the individualization required by the second paragraph of article
124 of the Code of Administrative Procedure. The result was that
the Gypsies were not expelled.
3. Supreme Court of Justice
89. The last decree of the Supreme Court of
Justice, of 21 September 1994, is also important. The District Court
of Lamego convicted a Gypsy woman for drug trafficking; in the grounds
of the conviction it was stated, and implemented in practice by
this tribunal, that the sentence should be augmented because the
woman was a Gypsy; indeed, as it was said: "Gypsies have a
natural tendency to drug trafficking - it is part of their customs
and traditions".
90. The decree of the Supreme Court affirmed
that a notorious fact is a question of law and may therefore be
examined by the Supreme Court of Justice. The Supreme Court then
ruled that it is not general knowledge and it is not obvious that
Gypsies have a greater inclination to drug trafficking than any
other ethnic group. The decision of the court of first instance
was therefore illegal since it founded part of the punishment on
the fact that the woman was a Gypsy. The decision was revoked in
regard to the part concerning the augmentation of the sentence.
Article 3
91. Between the submission of the last report
and the present report, the situation in South Africa has undergone
a radical transformation with the commencement and consolidation
of a process of political transition in that country, initiated
in February 1990 with the liberation of Mr Nelson Mandela, and culminating
in the holding of the first democratic and multiracial elections
on 27, 28 and 29 April 1994 and the subsequent formation of a Government
of national unity with an ANC majority.
92. Between 1990 and 1994, the period during
which the Government of Mr Frederik de Klerk lifted the state of
emergency and the segregationist legislation that was still in force,
the European Community and, naturally, Portugal, made every effort
to support the measures and mechanisms gradually imposed to bring
about political opening, respect for human rights and equality between
South Africans.
93. To this end, the European Community took
some timely decisions of a political nature, such as the lifting
of economic sanctions by the Community and cessation of discouragement
of cultural, sporting and scientific contacts with South Africa.
At the same time, the substantial financial contribution of the
Community to the Special Programme for the victims of apartheid,
destined to support projects with an important social impact, must
be stressed.
94. On the occasion of the elections in April
1994, having regard to the historical and cultural ties that have
always linked Portugal to the continent of Africa, and to the size
of the Portuguese community in South Africa, it was considered to
be in the national interest to send a group of Portuguese observers
to take part in the global international surveillance mission coordinated
by the United Nations.
95. The Portuguese Government is conscious of
the serious deficiencies by which many South Africans continue to
be affected, especially the black majority, principally in terms
of employment, housing, education, health and vocational training.
Both internationally and within South Africa, Portugal has always
most strongly condemned all racially based practices of discrimination,
notably by encouraging the Portuguese community in South Africa
to support the construction of the "Rainbow Nation" and
to play an active part in it.
Article 4
A. Juridical condemnation of racism
96. As has already been affirmed, the Portuguese
Constitution proclaims the principle of equality and non-discrimination
and prohibits associations drawing inspiration from fascist ideology,
that is, which adopt, defend or disseminate values such as colonialism
or racism.
97. The new Penal Code, adopted by decree-law
48/95, of 15 March 1995, and which came into force on 15 October
1995, deals in article 132.2, section (d), with homicide qualified
by racial, religious or political hatred; in article 159, with slavery;
in article 239, with genocide; in article 240, with racial discrimination;
in article 251, with insult on account of religious belief; in article
254, with profanation of a body or burial place; in article 297,
with public incitement to crime; in article 298, with public apology
for crime; in article 299, with criminal association; and in articles
300 and 301, with terrorist organizations and terrorism.
98. This condemnation of racism is to be found
in the text of the Constitution (art. 160, para. 1, section (d)),
when it deals with the status of deputies, and the law which complements
that statute (laws 7/93 of 1 March and 24/95 of 18 August). It is
stated there that deputies who receive a judicial conviction for
participation in organizations with a fascist ideology shall lose
their seats. Up to the present, no case of this kind has occurred
in Portugal.
99. Article 46.4 of the Constitution in turn
prohibits armed associations of a military, militarized or paramilitary
type, and racist organizations or organizations that follow a fascist
ideology. Law 64/78, on fascist organizations, prohibits inter alia
the formation of organizations proclaiming violence or defending
fascism, that is to say, "the adoption, defence or dissemination
of values, principles, institutions or methods ... in particular,
warmongering, violence as a form of political combat, colonialism,
racism ...".
B. The "National Action Movement"
(MAN) decree of the Constitutional Court
100. It is necessary here to touch upon decree
17/94 of the Constitutional Court, published in the Official Journal,
2nd series, of 31 March 1994. The Procurator-General of the Republic
called for the dissolution of the organization known as the "National
Action Movement" (MAN) because it followed the fascist ideology.
The ordering of this inquiry was mentioned in Portugal's last report
(CERD/C/179/Add.2, para. 80). The Procurator-General alleged that
the cultural association "National Action" founded in
1985 had as its aim the establishment of a "nationalist State".
It had also published journals entitled "Action", "Offensive",
"Manifesto", "Programme Points", "Statutes"
and "Vanquish". Its main characteristics were the cult
of the national community, the prevalence of its interests over
the interests of individuals and the cult of racial and bodily purity,
order, discipline and hierarchy; it drew its inspiration from Hitler's
Germany, Mussolini's Italy and the Portugal of Oliveira Salazar.
Racist and anti-semitic, the symbols of this association were the
raised arm salute, the Celtic cross and the swastika.
101. "National Action" advocated violent
means. From 1985 to 1989 it grew and associated itself with the
totalitarian movement of the skinheads and with foreign parties
having the same ideology. The appeal for violence was the culminating
point of its action. The death of a known militant of the Revolutionary
Socialist Party, on 27 October 1989, was associated with the organization;
some people thought the murder had been committed by members of
it (see Part 1, paragraphs 41 to 43, on this affair).
102. The organization objected, refuted several
points in the allegations made by the Procurator-General of the
Republic and declared that it had been dissolved by decision of
its president at the beginning of the 1990s. The Constitutional
Court considered the extinction of the National Action Movement
to be proved, searches having been made in 1991 by the judicial
police. And it considered that links with similar foreign parties
and attribution of acts of violence to the organization were not
proven. Moreover, having considered that the organization had ceased
its activities, there was no longer any reason to declare it to
be fascist, since its extinction preceded the declaration of fascism
and rendered it pointless. This does not mean that the death of
the Revolutionary Socialist Party militant went unpunished, the
author of this crime having been convicted. This means that the
Court, verifying that the organization was defunct, could not put
an end to it, nor initiate the penal proceedings that would have
taken place if the organization had been in existence.
103. The serious events of 10 June 1995 mentioned
in the first part of this report (paras. 46 to 48) as being committed
by skinheads appear to give the lie to the Constitutional Court's
decision, in that the skinheads were still keeping up their activities.
But this time, the skinheads were arrested and tried and given heavy
prison sentences; six of them were sentenced to 18 years' imprisonment.
C. Recommendation 72/A/96 of the Ombudsman
104. Mention must now be made of recommendation
72/A/96 of the Ombudsman ("Provedor de justiça")
in case R-2331/96 (in this connection, see paragraph 50 in Part
1). In August 1996, the mayor of Vila Verde ordered the demolition
of Gypsy dwellings under strong pressure from the people who accused
the Gypsies of drug trafficking. The Prefect of Braga, the district
in which Vila Verde is located, immediately opposed this measure
and took the matter to the Ombudsman. The affair gave rise to considerable
agitation among the people and aroused indignation among Portuguese
intellectuals, all of whom supported the Prefect of Braga.
105. The Ombudsman's recommendation was as follows:
- "Concluding that the demolition orders given by the mayor
of Vila Verde and their implementation were illegal,
- Concluding that the municipal authorities responded to pressure
from the people who associate the urban question with the occupants
of the buildings demolished - all members of a small Gypsy community
subject to disseminated accusations of drug trafficking,
- Concluding that the municipality should have properly weighed
up the possibilities for legalization of the work under way,
It is recommended:
- 1. That the rejection of the application for legalization be
revoked, on the grounds of illegality;
- 2. With consequent declaration of the nullity of the acts of
demolition; and
- 3. Reparation of the damages inflicted.".
The affair is currently running its course before
the courts, as we have seen in paragraph 51 of Part 1.
Article 5
A. Preliminary remarks
106. In the four previous reports (CERD/C/101/Add.8,
CERD/C/126/Add.3 and CERD/C/179/Add.2), we have described the existing
legal framework and the different legislative and administrative
measures to constitute a system prohibiting any form of racial discrimination
in regard to the right to equal treatment before the courts and
any administrative organ, the right to personal security and protection
by the State against assault and ill-treatment, and respect for
political rights and economic, social and cultural rights.
107. At the same time, following Portugal's
ratification of the two international covenants on human rights,
the submission of report to the organs of control created by these
instruments has taken its natural course - such, for instance, was
the case of the second report on the application of civil and political
rights (CCPR/C/42/Add.1), submitted in November 1989.
108. This report gives a more detailed analysis
of the measures adopted to give effect to the provisions of the
Covenant and to paragraphs (a) to (d) of article 5 of the Convention
on the Elimination of All Forms of Racial Discrimination.
B. The right to equal treatment before
the courts and any other administrative organs
1. Constitutional provisions
109. As already affirmed, the principle of equality,
foreseen in article 13 of the Constitution, is once again the essential
foundation for the whole of the existing legal framework. This article
has not suffered any amendments following the second revision of
the Constitution.
110. Article 20 in turn guarantees the principle
of access to justice, covering, on the one hand, the right to information
and, on the other hand, the right to legal protection. This provision
was substantially altered in the fourth revision of the Constitution
(1997). The new text of article 20 is given below:
- "Access to the law and the courts"
- "1. All are guaranteed access to the law and to the courts
in order to defend their legitimate rights and interests; justice
shall not be denied for lack of financial resources.
- 2. All have the right, in accordance with the law, to legal
information and consultation, to legal aid and to be accompanied
by a lawyer before any authority.
- 3. The law defines and assures adequate protection of confidentiality
in justice.
- 4. All have a right for the cause in which they are involved
to be the object of a decision taken within a reasonable time
and through an equitable procedure.
- 5. For the defence of personal rights, freedoms and guarantees,
the law assures citizens of judicial procedures characterized
by speed and priority, so as to obtain effective and timely protection
against threats or violations of these rights".
The main changes concern paragraphs 2 (right
to be accompanied by a lawyer before any authority), 3 (confidentiality
of justice), 4 (judgement within a reasonable time and by an equitable
procedure) and 5 (judicial procedures characterized by speed and
priority). Paragraphs 3, 4 and 5 are entirely new.
2. Access to justice
111. In the comments on article 2 (paras. 72
to 78 above), mention was made of the legislation relating to access
to justice (decree-law 387-B/87, of 29 December, and decree-law
391/88, of 26 October, as well as law 46/96, of 3 September). The
system instituted aims to guarantee that "no-one shall be in
difficulty or be prevented, by reason of their social or cultural
condition, or for lack of economic resources, from knowing, asserting
or defending their rights" (art. 1 of decree-law 387-B/87).
112. The law provides that these objectives
shall be attained by systematized actions and mechanisms of "legal
information", on the one hand, and "legal protection",
on the other hand. Legal protection has two modalities: legal aid
and legal consultation (article 6 of decree-law 387-B/87). Persons
without sufficient resources to pay their defenders' fees and to
cope, in whole or in part, with the costs of justice, have the right
to legal protection (art. 7, para. 1).
113. We have seen (paras. 74 to 78) that foreigners
and stateless persons also enjoy the right to legal protection,
a right that is also accorded to non-resident non-nationals in irregular
situations, provided they fulfil the prerequisites (law 46/96 of
3 September).
114. Legal aid comprises partial or total exemption
from payment of the costs of justice, or their suspension, and payment
of the services of a defender (lawyer or solicitor), the State ensuring
payment of these expenses. This system applies to all courts, regardless
of the procedure followed. Legal aid may be requested at any stage
in the case and is maintained in appeals procedures, independently
of the decision on the substance of the case and extends to all
procedures additional to those for which the aid was granted.
115. In the same spirit, a protocol was established
between the Ministry of Justice and the bar in 1986, to set up a
legal consultation bureau with offices located at the time in Lisbon
and Porto. This bureau offers guidance and legal advice free of
charge to all persons who do not have the means to engage a lawyer.
Legal consultations are provided by lawyers or trainee lawyers who
must take account of the ethical rules established by the bar. We
have seen (para. 73) that there are now eleven such offices, located
in the main cities of Portugal.
3. The "Provedor de Justiça"
(Ombudsman)
116. Article 23 of the Constitution stipulates
that citizens may turn to the "Provedor de Justiça"
(Ombudsman) on account of actions or omissions by the public authorities.
One example is the case of the Gypsies of Vila Verde which we have
already mentioned (paras. 50, 104 and 105). Strengthening this concern
for the right to equal treatment, the Constitution stresses the
independence of the Ombudsman, mentioning it expressly in paragraph
3 of article 23: "The Ombudsman is an independent organ, designated
by the Assembly of the Republic". Paragraph 4 of the same article
establishes that the organs and agents of the public administration
must cooperate with the Ombudsman in carrying out his mission.
4. Administrative jurisdiction
117. Another reflection of this concern for
equal treatment is paragraph 10 of article 32, amended in the fourth
revision of the Constitution. It is established here that persons
accused in procedures for administrative offences, and any other
procedure involving sanctions, must be assured of the right to a
hearing and a defence.
5. Right to petition and right of actio popularis
118. Article 52 of the Constitution, which was
also amended in the fourth revision of the Constitution, provides
as follows:
- "Right to petition and right of actio popularis
- 1. All citizens have the right to present, individually or jointly
with others, petitions, claims or complaints to the organs of
sovereignty or any authority, for the purpose of defending their
rights, the Constitution, the law or the general interest, and
the right to informed, within a reasonable period of time, of
the results of the examination they are given.
- 2. The law determines the conditions under which joint petitions
submitted to the Assembly of the Republic may be examined in plenary
session.
- 3. The right of actio popularis is conferred on all,
individually or through associations for the defence of interests,
in the cases and conditions provided by law, including the right
to claim compensation on behalf of the injured party or parties,
with a view, in particular, to:
- (a) advocating prevention, suppression or judicial prosecution
of offences against public health, consumers' rights, the quality
of life, protection of the environment and cultural heritage;
(b) defending the property of the State, the
autonomous regions and the local authorities".
119. Actio popularis, foreseen in the
Constitution, had never been regulated. However, it was to be found
with direct applicability in cases of habeas corpus (detention
for more than forty-eight hours and preventive detention not corresponding
to the requirements of the law). The law on guarantees for women's
associations makes provision for it, granting it to the associations
for the protection of the women involved. But doubt remained as
to whether it was possible, because it was foreseen, or not yet
possible because the clause providing for it did not yet have any
means of direct applicability.
120. Law 83/95, of 31 August, on the right to
participation in procedure and the right to actio popularis
resolves this problem, allowing such action where it is foreseen
by the law (this is the case of the law on women's associations),
and in cases relating to public health, the environment, the quality
of life, protection of the consumption of goods and services, the
cultural heritage and the public domain.
121. Other than in the case of habeas corpus
and all cases brought by persons against whom penal action has been
illegally initiated, actio popularis would not appear to
have any justification in the case of crimes, since the victims
are taken in hand, in the direction of the penal proceedings, by
the Public Ministry. However, since for certain crimes, which would
appear to include crimes against public health, the environment,
consumers, and other designated fields, the possibility of bringing
a complaint is extended to all, and it would appear that the law
brings special support to this type of complaint in the penal sphere.
122. Actio popularis has a profound administrative
and civil significance, associated in the latter case with direct
applicability of fundamental rights in relations between citizens.
Actio popularis also has extremely important technical significance.
This consists in the attribution of legitimacy for the initiation
of legal proceedings to persons not possessing titularity of interest
to act. It permits physical persons to intervene in the domains
foreseen by the law.
123. In regard to legal entities, actio popularis
also permits intervention for the sake of collective interests and
disseminated interests, but it lays down one condition (art. 2,
para. 1 of law 83/95): the associations and foundations that intervene
to defend an interest, although they may be without interest in
acting, must be injured in the sense that the interest they are
defending must figure in the aims set out in their statutes.
124. It may be asked whether commercial firms
can intervene. It would appear that they can if the interest figures
in their statutes. In any case, commercial traders can always form
associations or foundations with the aim of defending their interests
or the interests of trade, and exercise actio popularis if
these interests are in conformity with the definition of the interests
for which the actio popularis foreseen in paragraph 2 of
article 1 is allowed.
125. The law provides for the objective responsibility
of any person infringing the rules relating to the protected interests
(art. 23), and insurance is required for any dangerous activity.
6. Responsibility of the Administration and
guarantees of those administered
126. In regard to the responsibility of administrative
agents, the law on the revision of the Constitution has maintained
article 266 under the heading "Fundamental principles"
[of the Public Administration]:
- "1. The aim of the Public Administration is to pursue the
public interest, with respect for the rights and legally protected
interests of citizens.
- 2. The organs and administrative agents are subordinated to
the Constitution and the law and must exercise their functions
with respect for the principles of equality, proportionality,
justice and impartiality".
127. In the domain of guarantees of citizens
in regard to acts by the administration, paragraphs 4 and 5 of article
268 of the Constitution have been amended:
- "4. Citizens are guaranteed effective jurisdictional protection
of their rights or legally protected interests, including recognition
of these rights or interests, the right to object to any administrative
act that damages them, irrespective of their form, the determination
of the administrative acts legally due and the adoption of adequate
measures of protection.
5. Citizens also have the right to object to externally effective
administrative rules that damage their rights or legally protected
interests".
128. With regard to the right to information
and access to administrative data on the part of citizens (paras.
1 and 2 of article 268), paragraph 6 provides that the law shall
establish the maximum period within which the Administration must
respond.
7. Code of Administrative Procedure
129. With regard to administrative law and citizens'
guarantees, the 1990s have seen the appearance of the new Code of
Administrative Procedure (decree-law 442/91 of 15 November and decree-law
6/96 of 31 January), legislation on guarantees of exemption of the
Public Administration (decree-law 413/93 of 23 December) and clarification
of certain aspects of discipline in regard to access to documents
of the Public Administration (law 8/95 of 29 March).
8. Code of Penal Procedure
130. Lastly, the most striking features of the
Code of Penal Procedure, adopted by decree-law 78/87 of 17 February
and which came into force on 1 January 1988, concerning non-discrimination,
have been retained. According to the Code, the accused, that is,
the person against whom a criminal charge has been formulated (art.
57), should see the exercise of procedural rights and duties assured
(art. 60), with recognition of the right to be present at the acts
concerning him directly, to choose a defender or request the court
to appoint one, to be assisted by a defender in all the acts in
which he participates, to be informed of his rights by the judicial
authority or organ of the criminal police before which he has to
appear (art. 61).
131. Furthermore, according to article 92, "in
cases where a person who does not know or have adequate mastery
of the Portuguese language is involved in the proceedings, a suitable
interpreter is appointed, with no charge, even if the authority
presiding over the act or one of the participants in the proceedings
knows the language being used".
C. The right to personal safety and
the protection of the State against assault or ill-treatment
132. Portugal has recently submitted to the
United Nations the report prepared pursuant to article 19.1 of the
Convention against Torture and other Cruel, Inhuman or Degrading
Punishment or Treatment (CAT/C/25/Add.10) which was examined at
the nineteenth session of the Committee against Torture, on 13 November
1997. Portugal therefore refers to that report, while stressing
that a new report will be submitted to the Committee against Torture
in the near future.
133. Three important articles of the Constitution,
articles 27, 28 and 30, were examined during the last revision of
the Constitution:
(a) Paragraph 4 of article 27 is maintained,
establishing that everyone who is deprived of liberty must be informed,
promptly and in a manner that is comprehensible, of the reasons
for the arrest or detention, and of his or her rights.
(b) Paragraph 2 of article 28 is maintained
in its global sense, but has been modified; it now reads: "Preventive
custody shall be the exception, and shall not be decreed or maintained
when bail or some other more favourable measure that is available
under the law can be applied.".
(c) Finally, paragraph 5 of article 30, which
remains unchanged, provides that: "Condemned persons who are
subjected to a sentence or a security measure involving the deprivation
of liberty remain entitled to their fundamental rights, subject
to the limitations that necessarily derive from that conviction
and from the requirements for its enforcement.".
D. Political rights
1. Constitutional provisions
134. The fourth revision of the Constitution
changed the title of article 15, which now reads: "Aliens,
stateless persons, European citizens". The text has not been
altered, and reads as follows:
- "1. Aliens and stateless persons temporarily or habitually
resident in Portugal shall enjoy the same rights and be subject
to the same duties as Portuguese citizens.
- 2. Paragraph 1 does not apply to political rights, to the performance
of public functions that are not predominantly technical or to
rights and duties that, under the Constitution or the law, are
restricted to Portuguese citizens.
- 3. Citizens of Portuguese-speaking countries may, by international
convention and provided that there is reciprocity, be granted
rights not otherwise conferred on aliens, except the right to
become members of the organs with supreme authority or of self-government
of the autonomous regions, to service in the armed forces or to
appointment to the diplomatic service.
- 4. The law can confer upon aliens who reside on the national
territory, under conditions of reciprocity, active and passive
electoral capacity for the election of members [titulares]
of organs of local authority.
- 5. The law can also attribute, in conditions of reciprocity,
to citizens of member states of the European Union residing in
Portugal the right to elect and to be elected Deputies to the
European Parliament.".
135. Aliens and stateless persons temporarily
present or residing in Portugal enjoy the same rights and are subject
to the same duties as Portuguese citizens. Political rights in general,
the exercise of public functions not of an essentially technical
nature and the rights and duties reserved for Portuguese citizens
are excepted from this regime of equality. The law nevertheless
provides for the faculty to elect and be elected in municipal elections
for nationals of certain countries.
2. Local elections
136. With regard to the capacity to elect and
be elected, law 50/96 of 4 September has amended article 2, paragraph
2(a) of decree-law 701-B/76 of 29 December - the electoral law for
local communities - which foresees a list to be published by the
Government before every electoral act for the organs of municipal
authority. Declaration 2-A/97 established that Portuguese citizens
and nationals of the European Union, Brazil and Cape Verde, Argentina,
Israel, Norway, Peru and Uruguay may vote and that nationals of
Portugal, the European Union, Brazil, Cape Verde, Peru and Uruguay
may be elected. It is also possible for certain rights of a political
nature to be granted to citizens of Portuguese-speaking countries
by means of a convention between Portugal and these countries.
137. The number of foreign nationals registered
on the lists of the last electoral roll (1997 - elections for the
local authorities on 14 December 1997) amounted to 3158 nationals
of countries of the European Union and 11 427 citizens of other
origins.
3. Nationality
138. Nationality must also be taken into account.
The relevant legislation comprises law 37/81 of 3 October, the law
on nationality, amended by law 25/94 of 19 August 1994; and decree-law
321/82 of 12 August, regulations on nationality, amended by decree-law
253/94 of 20 October.
139. The following are considered to be of Portuguese
origin: children of a Portuguese father or mother born on Portuguese
territory or under Portuguese administration, or abroad if the Portuguese
parent is there in the service of the Portuguese State; children
of a Portuguese father or mother born abroad if they declare that
they wish to be Portuguese or register the birth with the Portuguese
civil registry; children born on the territory of Portugal, children
of foreigners resident with a valid residence permit for at least
six or ten years, depending on whether they are nationals of Portuguese-speaking
countries or other countries, provided they are not there in the
service of their State of origin and if they declare that they wish
to be Portuguese when they do not possess any other nationality.
140. This means, among other important points,
that persons born in the Portuguese-speaking countries before the
independence of those countries have Portuguese nationality. The
law does not deprive them of this nationality, establishing in article
1, paragraph 2, that newborns in those territories are presumed
to have been born on Portuguese territory or under Portuguese administration
in the absence proof to the contrary.
141. This has been very important for persons
resident in Africa wishing to return after decolonization, their
nationality having been maintained by decree-law 308/A/75 of 24
June. This also means that the children born in Macao up to the
moment of transfer of its administration to China will be able to
have Portuguese nationality.
142. In addition to this acquisition of nationality
by origin, the law provides for the acquisition of nationality by
the desire to do so. Nationality may thus be acquired through marriage
with a Portuguese national, adoption and naturalization. In the
latter case, when the subject is legally of age, has resided in
the Portuguese territory for six or ten years (depending on whether
he or she is a national of a Portuguese-speaking country), knows
the Portuguese language, proves the existence of a link with the
Portuguese community, is of suitable civic comportment, is able
to care and provide for himself or herself, he or she may apply
for naturalization.
143. These aspects of the acquisition of nationality
are important in so far as they accord a special privilege to nationals
of the Portuguese-speaking countries, who could be affected by discriminatory
legislation.
144. This is confirmed by article 9 of law 37/91
on opposition to the acquisition of nationality. Grounds for opposition
are the fact that the applicant cannot demonstrate a link with the
national community, the commission of a crime punishable with a
sentence of more than three years or the exercise of public functions
or the accomplishment of compulsory military service for a foreign
State.
145. An important feature of Portuguese legislation
is that there is no provision for loss of nationality. Nationality
once acquired cannot be lost, which means that Portuguese society
does not reject its members. No-one can be banished, which is a
fundamental guarantee against the application of discriminatory
motivations in the process of acquisition of nationality.
E. Other civil rights
1. The right to freedom of movement and choice
of place of residence within the country
146. An important factor affecting all the rights
of non-Portuguese nationals is the regime governing their entry
and stay in Portugal. To this must be added the right of asylum,
although this is a political right. The accession of Portugal to
the European Community has naturally imposed a legal definition
of conditions of entry, stay and departure from the territory for
nationals of member States and members of their families, and imposed
a distinction between non-nationals originating from a country of
the European Union and non-nationals originating from third countries.
(a) Identification procedure
147. The first question that arises is the identification
of a person, either at border posts or within the country. Within
the country, identification is carried out in accordance with law
5/95, of 21 February, which establishes the duty to carry an identity
document. Under article 1, agents of authority or of the security
services may demand identification of any person present or moving
in a public place, or a place open to the public or subject to police
surveillance, whenever there are grounds for suspicion that crimes
may have been committed against the life and integrity of persons,
peace and humanity, the democratic order, the values or interests
of life in society or the State, or doubts regarding the entry or
irregular stay of that person on Portuguese territory, or if proceedings
for extradition or expulsion are under way. It would appear that
it is only possible to demand identification when such a doubt exists.
There is a link between all the measures for identification and
criminal law, on the one hand, and illegal entry to the country,
on the other hand.
148. Agents may only demand identification after
having shown proof of their status and informed the person in question
of his or her rights, the specific circumstances justifying the
demand for identification and the various means by which the person
may identify him or herself. Omission of this duty to provide information
renders the order for identification null.
149. Under article 2 of law 5/95, citizens aged
over sixteen years must carry an identification document whenever
they are in public places, places open to the public or subject
to police surveillance. This document may be the identity card or
passport, for Portuguese citizens, the residence permit, alien's
identity card or passport for nationals of the countries of the
European Union, and the residence permit, alien's identity card
or passport for foreign nationals of third countries.
150. If identification is impossible or refused,
there is ground for an identification procedure that consists in
taking the person to the nearest police station, where he or she
will remain strictly for the time required for the identity check,
which may in no case exceed two hours. A compulsory record of the
identification procedure shall be written in cases of refusal, while
a record need not be kept in other cases, where the person to be
identified so requests. Where a record is taken, one copy is given
to the person identified and one copy to the Public Ministry.
151. The identification procedure is always
communicated to a person of confidence of the person retained where
he or she so requests; thus, a person retained for a maximum of
two hours for identification may ask for a person of confidence
to be contacted immediately, although he or she will not be permitted
to do this personally.
152. The procedure must, as soon as possible,
be replaced by identification by a third party, duly identified
and able to guarantee the veracity of the personal details; by bringing
the person to be identified into the presence of a person of confidence
so that he or she may present the means of identification; or by
accompanying the person concerned to the place where his or her
identity documents are. Only when it is not possible to proceed
to any of these modes of identification will it be necessary to
proceed to detention for identification for not more than two hours,
with the possibility of taking a record. The law on identification
provides for the possibility of communicating with a lawyer. In
other cases, the rules of penal procedure are applied (art. 254
et seq. of the Code of Penal Procedure), which allow a detainee
to communicate with his or her lawyer.
153. Under article 254 of the Code of Penal
Procedure, the object of detention is to bring the detainee before
a judge within forty-eight hours, or immediately in a procedural
act. In the second case, detention may only be effected by judicial
mandate. There is always the possibility of consulting a lawyer,
and aid from third parties is also possible (actio popularis),
whenever the detainee is detained for more than 48 hours (habeas
corpus).
154. Under article 261 of the Code of Penal
Procedure, the detainee is immediately released when it becomes
clear that detention of that person was by mistake or outside the
scope of cases where legally permissible, or that the measure has
become unnecessary.
(b) Entry, stay and departure of foreigners
155. Decree-laws 59/93 and 60/93 of 3 March
regulate the regime for the entry, stay and departure of foreigners
who are nationals of non-Community and Community countries. Decree-law
59/93 is the most important for foreigners who are not citizens
of a country of the Union. A foreigner is a person who does not
possess Portuguese nationality; a resident is a person who possesses
a valid permit for residence in Portugal.
156. Foreigners who wish to enter the national
territory or to leave it must do so at the frontier posts qualified
for this purpose. To enter or leave the national territory, foreigners
must be bearers of a passport valid beyond the duration of their
permitted stay; for entry, they must also have a valid visa; they
must also be in possession of means of subsistence corresponding
to the length of their stay in Portugal.
157. Foreigners whose names appear on a joint
list (European Union) or a national list (drawn up by the Aliens
and Frontiers Department) of persons who may not be admitted because
they have been expelled from the country or given a custodial sentence
of not less than one year, or who are strongly suspected of having
committed a serious offence, or who are a threat to public order,
national security or the international relations of a Member State
of the European Union are forbidden from entering Portugal. The
inclusion of a foreigner on the joint list depends on a decision
by the competent bodies of a Member State of the European Union.
158. Citizens who are not nationals of a Member
State of the European Union who enter the country at a border post
where there is no control, coming from another Member State, are
required to declare their entry within three working days of their
arrival. This declaration must be made to the Aliens and Frontiers
Department, the Public Security Police, the National Republican
Guard or the Fiscal Guard.
159. Shipping companies or airlines that carry
a passenger or crew member whose entry is refused to the national
territory must provide for their immediate return to the point at
which the journey was commenced, or, if that is not possible, to
the State where the travel document was issued, or to any other
point where they may be admitted.
(c) Visas
160. Visas issued to foreigners are diplomatic,
service or consular visas. Consular visas are for transit, work
(for a relatively short duration; foreigners who wish to immigrate
to work must apply for a residence visa and furnish proof of a contract
of work or proposal of work, and of accommodation), short stay,
study and stopover. Residence visas are always subject to prior
consultation with the Aliens and Frontiers Department, and family
reunion is a factor in favour of the issuing of a residence visa.
(d) Travel documents
161. The travel documents issued to foreigners
are governed by decree-laws 438/88, of 29 November, and 267/89,
of 18 August, and to refugees, by law 38/80 of 1 August.
(e) Residence permits
162. Application for residence permits must
be made to the Aliens and Frontiers Department. An accommodation
certificate must be filled in to permit control of the presence
of foreigners in Portugal.
(f) Expulsion of foreigners
163. Foreigners may be expelled from the national
territory. Under article 67, irregular entry or stay on the national
territory, violation of national security, public order or public
morals, the fact that presence or activity in the country is a threat
to the interests or dignity of the Portuguese State or its nationals,
abusive interference in the rights of political participation reserved
for Portuguese citizens, infringement of Portuguese laws relating
to foreigners, and engaging in acts that would have been an obstacle
to entry into the country, are grounds for expulsion.
164. The penalty of expulsion is an accessory
penalty to the penalty resulting from a penal conviction, but may
not be automatically applied, it being unconstitutional to interpret
the law in this sense. Legislation governing the entry, stay and
departure of foreigners is applied in accordance with an interpretation
that must be consistent with the Constitution. Expulsion is only
decided when the crime is associated with the legislation on foreigners
(Constitutional Court decree 41/95, case 713/93, published in the
Official Journal, 2nd series, No 98, of 27 April 1995).
165. The competent body for expulsion is the
police court of the area of residence or the Aliens and Frontiers
Department. The initiative for expulsion proceedings is taken by
the Aliens and Frontiers Department, and the decision to drop the
case can only be taken by the Ministry of the Interior. The period
for the execution of the expulsion order is 40 days, it being executed
by the Aliens and Frontiers Department. Foreigners may not be expelled
to a place where they may be persecuted on grounds which, by law,
justify the granting of the right of asylum. A foreigner expelled
from Portugal is banned from re-entering the country for a period
of not less than three years.
166. Foreigners who have entered illegally and
who must therefore be returned to their countries of origin, foreigners
who have been expelled, and foreigners who have applied for asylum
must be installed in a temporary reception centre until the expulsion
decision is executed or asylum is granted (art. 75).
167. Except in cases of asylum, this installation,
referred to as installation for security reasons, is a measure executed
by the judge. It lasts until expulsion or the granting of a residence
visa or residence permit, may not exceed two months, and must be
reassessed by the judge every week (art. 3 of law 34/94 of 14 September,
temporary reception centres). The detention of foreigners in illegal
situations may be done by any authority, the foreigners being handed
over to the Aliens and Frontiers Department to be brought before
a judge within 48 hours for the validation of their detention. The
temporary reception centres, however, have not yet been created.
168. Although the law does not say so, it is
to be presumed, in the case of detention, that foreigners enjoy
all the rights deriving from detention under penal procedure, governed
specifically by articles 254 et seq. of the Code on Penal Procedure.
To this end, it must be presumed that foreigners may be detained
at the moment of their illegal entry and brought before a judge
within 48 hours. But if they are illegally on the national territory,
having managed to enter without being detained, they can only be
detained for expulsion proceedings on a judicial warrant.
169. The law also foresees, and punishes, support
for illegal immigration.
2. Asylum and refugees
(a) The right of asylum
170. Law 70/93, of 29 December, governs the
right of asylum. A reform of this legislation is currently under
discussion in Parliament. The granting of the right of asylum confers
the status of refugee on the beneficiary.
171. Under article 2, asylum is guaranteed to
foreigners and stateless persons persecuted or seriously threatened
with persecution on account of their activity in favour of democracy,
social and national liberation, peace between peoples, freedom and
the rights of the person, exercised in the State of their nationality
or usual residence.
172. Foreigners and stateless persons who justly
fear persecution on account of their nationality, race, religion,
political convictions or membership of a certain social group, and
cannot or do not want to return to the State of their nationality
or usual residence, are also entitled to be granted asylum.
173. Those who have committed acts contrary
to the fundamental interests or the sovereignty of Portugal, who
have committed crimes against peace, war crimes, or crimes against
humanity as they are defined in the international instruments intended
to prevent them, who have committed acts contrary to the aims and
principles of the United Nations, may not be granted asylum. Asylum
may be refused whenever justified on the grounds of internal or
external security or necessary for the protection of the population,
in particular on account of the social or economic situation of
the country.
174. The effects of asylum may be extended to
the spouse and minor, single or incapable children of the beneficiary,
or, if the latter is under eighteen years, to his father or mother.
175. The granting of asylum puts an end to any
request for extradition of the asylum-seeker founded on the facts
on the basis of which asylum has been granted. Application for asylum
suspends any extradition proceedings until the definitive decision
has been reached. The application for asylum is communicated, within
two working days, to the instance before which the extradition proceedings
are taking place.
176. Foreigners or stateless persons who enter
the national territory irregularly, for the purpose of getting help,
must submit an application immediately to the authorities, verbally
or in writing. The authority to which the application is submitted
must hear the applicant in a declaration proceeding, of which a
record is taken that must contain the date, time and place of the
record, and the circumstances relating to the irregular entry into
the country and the reasons for it.
177. A residence permit outside the framework
of law 59/93 of 3 March (humanitarian assistance) may be granted
to foreigners and stateless persons not covered by the provisions
of article 2 and who are prevented or feel it is impossible to return
to the State of their nationality or residence for reasons of insecurity
due to armed conflicts or systematic and verified violations of
human rights.
178. The Minister of the Interior decides on
applications for asylum on the proposal of the National Commissioner
for Refugees. The process of granting asylum starts with a written
or verbal application that must be submitted within eight days of
entry into the country. The Aliens and Frontiers Department notifies
the applicant that he must make a declaration, an act which marks
the start of the procedure. Once the application for asylum has
been received, the Aliens and Frontiers Department issues a provisional
residence permit valid for a period of 60 days, that may be extended
for periods of 30 days until the final decision is reached.
179. The right to asylum is lost through renunciation,
acts of interference in Portuguese political life on the part of
the beneficiary, proof that false grounds were invoked for the granting
of asylum, or by the request by the beneficiary for protection from
the country of which he is a national. Loss of the right of asylum
is a ground for expulsion from the territory of Portugal.
180. Expulsion of a beneficiary of asylum may
not determine his return to a country where his life and freedom
will be endangered for any reason that constitutes a ground for
the granting of asylum.
181. The court of appeal in the area of residence
of the beneficiary of asylum is competent to declare the loss of
the right to asylum and to order the expulsion of the refugee. The
decision may be appealed before the Supreme Court.
182. Until the final decision on asylum, petitioners
in situations of economic and social need and their families receive
assistance for accommodation and for food.
3. The right to freedom of thought, conscience
and religion
(a) Constitutional provisions
183. Article 41 of the Constitution, which was
not amended by the law of revision of the Constitution, reads as
follows:
"Freedom of conscience, religion and worship
- 1. The freedom of conscience, religion and worship is inviolable.
- 2. No one shall be persecuted or deprived of rights or exempted
from civil responsibilities or duties by reason of his or her
convictions or religious observance.
- 3. No one shall be questioned by any authority about his or
her convictions or religious practice, except for the purpose
of gathering statistical information that does not identify individuals,
nor shall anyone be prejudiced for his or her refusal to reply.
- 4. Churches and religious communities are independent of the
State and are free to determine their own organization and to
perform their own ceremonies and worship.
- 5. Freedom within a denomination to teach its religion and to
use its own media for providing public information about its activities
is guaranteed.
- 6. The right to be a conscientious objector is guaranteed by
law".
The content of this article is the source of
all the provisions of the Constitution as well as all the non-constitutional
legislation dealing with religion.
184. Even if this article had not been in the
Constitution, the Constitution is to be interpreted, by virtue of
its article 16.2, in accordance with the Universal Declaration of
Human Rights and would establish religious freedom in terms similar
to those in article 41. Article 13, on non-discrimination, imposes
non-discrimination on account of religion. The suspension of civil
and political rights, particularly in cases of a state of siege
or emergency, may not apply to people's religion (art. 19.6). Computers
may not be used to obtain information about religious faith (art.
35.3). It is also forbidden for the State to inculcate religious
ideas (art. 43.2). Finally, as a guarantee of the State against
the domination of one religion, the laws on the revision of the
Constitution must respect the separation of the Churches and the
State (art. 288, para. (c)).
185. But although the State is independent from
the Church, the Church plays an important role in Portugal, where
most believers are Catholics. The Concordat between the Holy See
and Portugal is maintained, amended by the Additional Protocol of
15 February 1975.
(b) Concordat between the Holy See and Portugal
186. The Concordat between the Holy See and
Portugal dates from 1940. The revolution of 25 April 1974 nevertheless
changed it in some respects, introducing greater freedom, reflected
at the level of relations between citizens. The Additional Protocol
to the Concordat, signed at the Vatican City on 15 February 1975,
modifies article XXIV of the Concordat to permit divorce (decree-law
187/75 of 4 April, Official Journal, 1st series, of 4 April 1975).
The text reads as follows:
- "In celebrating Catholic marriage, the spouses thereby
assume before the Church the obligation to respect the canon law
by which it is governed and, in particular, to respect its essential
properties.
- The Holy See, reaffirming the doctrine of the Catholic Church
on the indissolubility of matrimony, reminds spouses that the
celebration of canonical marriage determines for them the important
duty that they should not avail themselves of the civil faculty
of seeking divorce".
(c) Framework law on religious freedom
187. Religion is a possible source of discrimination,
and religious discrimination is a frequent form of racial discrimination.
We shall therefore go on to analyse the regime of religious freedom
in Portugal. We shall then deal with conscientious objection and
religious participation in education.
188. The framework law on religious freedom
remains law 4/71 of 21 August. A new draft law is under study, however,
but it has not yet been adopted by Parliament. The fundamental principles
of this law are religious freedom and the granting by the State
of adequate legal protection to religious denominations.
189. The State does not profess any religion
and its relations with the religious denominations are based on
the principle of separation, the denominations being entitled to
equal treatment, except for differences imposed by their different
representativity.
190. Religious freedom implies that citizens
may or may not have a religion, may change denomination or leave
the denomination to which they belonged, and may or may not act
in accordance with the rules of the denomination to which they belong.
They may freely express their convictions, and defend in speech,
writing, or by other means, the doctrine of the religion they profess.
They may practise acts of worship, in private or in public, of their
chosen denomination.
191. According to base IV, no one is obliged
to state whether or not they have a religion, or what is their professed
religion, except in reply to statistical surveys which are not compulsory
and remain confidential. No one may be harassed, persecuted, deprived
of a right or exempted from a duty on account of their religious
convictions and there will be no discrimination in access to public
functions or the award of honours or official dignities.
192. Base V establishes freedom of meeting for
worship or other specific purposes of religious life. Religious
associations are formed in accordance with the provisions of the
Civil Code and registered in accordance with the terms of decree
law 216/72 of 27 June.
193. Finally, an important issue is religious
confidentiality. According to base XIX, ministers of any religion
must maintain confidentiality regarding all facts communicated to
them or which they have learned because of and in the course of
their functions, and they may not be questioned by any authority.
194. Base XX provides for penal repression for
breach of the duty of confidentiality. It may be wondered whether,
in the light of the new Penal Code (art. 195), this provision will
be maintained. The answer would appear to be found in article 195
of the new Penal Code: "Anyone who, without justification and
without the consent of whoever is concerned, reveals or derives
profit from a secret that has come to his knowledge by reason of
his condition, occupation, employment, profession or technology,
will be punished with a prison sentence of up to one year and a
criminal fine of up to 240 days".
(d) Conscientious objection
195. Conscientious objection may also be a ground
for racial discrimination, hence its importance. Law 7/92, of 12
May, contains the general regime for conscientious objection to
military service. It has been regulated by decree-law 191/92 of
8 September. It must be said that conscientious objection strictly
speaking is not confined to military service. A doctor who does
not agree with abortion may invoke conscientious objection not to
perform the act. But it is in the framework of the accomplishment
of military service that conscientious objection is most obvious.
196. According to law 7/92, the status of conscientious
objector determines exemption from military service in times of
peace and times of war. It is personal convictions relating to the
use of violent means that determine acquisition of the status of
conscientious objector. These personal convictions are of a religious,
moral or philosophical order and inhibit objectors from using these
means even for the purposes of self defence.
197. The law provides for the service that will
be carried out, its equivalence to military service and the abstract
and concrete definition of the tasks to be carried out by those
who perform civil service (art. 4). Apart form civil service, objectors
may cooperate with the Portuguese-speaking countries, with the territories
under Portuguese administration and in the framework of mobility
within the European Community. Refusal or abandonment of civil service
by conscientious objectors leads to penal sanctions, the performance
of civil service being considered to have been abandoned when the
objector is absent, without justification, for five consecutive
days or for a total of ten days from the place where the service
is being carried out (art. 9).
198. The status of conscientious objector is
acquired through an administrative procedure. The consequence of
acquisition of the status of conscientious objector is to be unable,
throughout life, to hold any public or private function that involves
the use or carrying of arms, the arms trade or the manufacture of
arms (art. 13).
199. The status is lost if an offence subject
to penal sanctions is committed, or if a function is exercised by
the objector that is prohibited under the terms of article 13 or
in cases foreseen by the law (art. 14). Cessation renders objectors
subject to normal military duties, with the time of effective service
being counted for military service. Conscientious objectors are
registered with the Conscientious Objectors' Civil Service Bureau.
Decree-law 191/92, of 8 September, regulates the law on conscientious
objection.
200. The organizational structure of civil service
has no connection with military structures. Civil service must be
composed of humanitarian, cultural and activities of social solidarity
that are dignifying for those who perform them and useful to the
community. The areas of civil service are: assistance in hospitals,
diagnosis of diseases and actions for the defence of public health,
actions of prophylaxis against drugs, tobacco and alcoholism, assistance
to the handicapped, children and the elderly, prevention and control
of fires and assistance to the shipwrecked, assistance to populations
affected by floods, earthquakes, epidemics and other public disasters,
assistance to the victims of road accidents, surveillance and maintenance
of parks and national reserves, the maintenance and construction
of highways and roads of local usefulness, protection of the environment
and heritage, activities of civil statistics, literacy and cultural
promotion, the exercise of activities in non-profit institutions
of a social, cultural or religious nature, assistance in prisons
and participation in activities of social reinsertion.
(e) Religious participation in education
201. Religious education is given in accordance
with the free choice of learners in schools (law 47/86). The rule
of decree 333/86, whereby teaching of the Catholic religion and
morals was imposed on students who did not choose a specific course
of religion or who did not produce a declaration of refusal of that
teaching was ruled unconstitutional by decree 423/87 of the Constitutional
Court, published on 26 November 1987 (on the teaching of religion,
see also the commentary on article 7 in paragraphs 296 to 298 below).
202. Catholic education is therefore maintained,
but is not compulsory for students who have not produced a declaration
of refusal. Further to the decree of the Constitutional Court, those
who wish to follow the discipline of Catholic religious and moral
teaching must declare that they wish to do so.
203. These numerous references to religion in
this report are justified by the fact that religious discrimination
is sometimes at the root of more or less thinly disguised forms
of racial discrimination.
4. The right of all persons, singly or in association,
to property
204. Access to property could be refused on
grounds of race, ethnic origin, or colour; it is therefore important
that it should be guaranteed, specifically by a provision of the
Constitution. This is done by article 62 of the Constitution, which
stipulates:
"Right to private property"
- "1. To all is guaranteed the right to private property
and to transfer it during their lifetime and on death under the
terms of the Constitution.
- 2. Requisitioning or compulsory acquisition of property for
public purposes can be carried out only under the authority of
law and on payment of fair compensation".
205. Under article 82 of the Constitution, there
are three property sectors, the public sector, the private sector
and the cooperative and social sector.
F. Economic, social and cultural rights
206. Portugal's third report on the application
of the International Covenant on Economic, Social and Cultural Rights
has just been submitted (E/1994/104/Add. 20 of 22 May 1998). Portugal
refers to it for everything to do with these rights in general.
They are applicable both to Portuguese nationals and to foreigners
provided that the latter are in a regular situation on Portuguese
territory. However, mention must be made here of certain specific
rules that apply to foreign nationals and ethnic minorities.
1. Interdepartmental Commission for the Integration
of Immigrants and Ethnic Minorities
207. The Interdepartmental Commission for the
Integration of Immigrants and Ethnic Minorities created by resolution
38/93 of the Council of Ministers, of 15 May, was set up on 23 September
1993. It is composed of representatives of the Ministry for Qualification
and Employment, the Ministry of Solidarity, the General Directorate
of Health, the National Institute of Housing and the Aliens and
Frontiers Department; it is coordinated by the representative of
the General Directorate of Social Action of the Ministry of Solidarity.
208. The functions of the Commission are as
follows: (a) to know the living conditions of immigrants and the
measures taken by the different departments and institutions; (b)
to determine the measures and strategies to be adopted by the sectors
and departments working in the field of the immigrant population
and ethnic minorities; (c) to devise and support programmes and
actions aimed at social and occupational integration; (d) to coordinate
and monitor the actions and programmes carried out with the populations;
(e) to evaluate the actions and the results obtained.
2. Employment
209. In the field of employment, the relationship
of subordinate labour, the provision of services, and the right
of establishment are governed by Portuguese law provided that this
is not incompatible with the provisions of the Treaty instituting
the European Community, in regard to freedom to accede to employment,
to provide a service or to take up residence in Portugal.
210. There is no limitation on access to employment
by foreign nationals, even in regard to access to work in the Administration,
providing that the person in question only carries out technical
functions there. Foreigners may not occupy managerial posts in the
Administration (article 15.2 of the Constitution).
211. It should be added that revision of the
law on foreign labour is under way, with a view to eliminating restrictions
on recruitment, ensuring effective equality in conditions of work
and combatting clandestine labour.
3. Housing
212. In the field of housing, article 15 of
the Constitution establishes the principle of equality between non-nationals
and nationals. Some of Portugal's immigrants live in slums; in Lisbon
and Porto these are covered by the Special Rehousing Programme (PER)
which aims to eliminate slums and replace them with adequate housing.
In this measure, there is equality between immigrants and nationals:
a foreigner in a regular situation in conditions in which the PER
is applicable cannot be refused adequate housing to replace the
precarious housing in which he is living.
213. In regard to social housing, legislative
texts published on the initiative of the present Government have
been designed to create conditions for more flexible and faster
implementation of special rehousing programmes. This is the case
of decree-law 79/96, of 20 June, better known as the PER-families,
which has created the regime for the granting of aid for the purchase
or recovery of homes covered by the PER in the metropolitan areas
of Lisbon and Porto.
214. Apart from the possibilities which already
exist for local communities to promote the building of the homes
required or to proceed to the purchase of existing housing on the
market, provided the purchase prices are within certain limits,
the text of the law has established other possibilities. The granting
of assistance with the cost of the housing to be purchased by the
families needing rehousing has been accepted, which allows the families
to choose the place and the home best suited for their rehousing,
thus enabling their social reinsertion.
215. The practical significance of decree 357/96
of 16 August must stressed; this, with a view to creating conditions
for more effective implementation of the PER, provides exceptionally
that, in duly justified cases, the purchase of homes exceeding the
limits and prices set for the different areas of the national territory
may be authorized, in the metropolitan areas of Lisbon and Porto,
taking into account the evolution of prices verified on the national
market.
4. Health
216. In the field of health, base XXV of law
48/90 of 24 August, the framework law on health, provides that foreigners
shall be beneficiaries, subject to reciprocity, of the National
health service. Portugal has concluded reciprocal agreements with
several countries with citizens resident in Portugal, in particular
with the Portuguese-speaking countries of Africa.
217. The basic text on health policy is the
above-mentioned framework law on health; it is divided into four
chapters that define the bases of health: general provisions, entities
providing care, the national health service and special health initiatives.
218. The protection of health is a right of
citizens and the community that is realised through joint responsibility
by citizens, society and the State, in terms of freedom to seek
and provide care, in accordance with the Constitution and the law.
The State guarantees access by all citizens to health care within
the limits of the human, technical and financial resources available.
5. Guaranteed minimum income
219. For the first time in Portugal, law 19-A/96,
of 29 June, on guaranteed minimum income, institutes a non-contributory
regime of social security and a programme of social insertion that
aims to provide individuals and their families with resources to
help to satisfy their minimum needs and to promote their gradual
social and occupational insertion. It must be said that, over and
above the provision of varying amounts of money on a temporary basis,
it is planned to have an insertion programme with a view to creating
favourable conditions for the gradual social integration of recipients
of benefits and members of their families. In the framework of insertion
programmes, other support may be granted to recipients of the minimum
income benefit and to other members of their families, in particular
in regard to health, education, housing and transport.
220. Recipients of this benefit are persons
legally residing in Portugal who meet the conditions established
in the law, and not just Portuguese citizens, which is consistent
with constitutional principles and with recognition of the social
citizenship of foreign citizens and Portuguese citizens susceptible
to regarded as part of a national ethnic minority.
6. Special measures for the integration of ethnic
minorities
(a) The Interministerial Commission for the
Reception and Insertion of the Timorese Community
221. Resolution 53/95 of the Council of Ministers,
published in the Official Journal, 2nd series, of 7 December 1995,
created the Interministerial Commission for the Reception and Insertion
of the Timorese Community (see also paragraph 58 in Part I). This
Commission has the functions of coordinating and assessing proposals
for the development of integrated policies favourable to the reception
and insertion of the East Timor community in Portugal. It is composed
of representatives of the Ministries of Foreign Affairs, Internal
Administration, Justice, Education, Health, Qualification and Employment,
Solidarity and Social Security.
222. In this framework, efforts are made to
distribute identity cards free of charge to citizens of East Timor,
to provide them with adequate, if temporary, accommodation pending
definitive housing and to employ citizens of East Timor in services
dependent on the Administration, with a view to preparing them for
study and for learning the Portuguese language.
(b) Gypsies
223. The Gypsies are an important group in Portugal
(see paragraph 16 in Part I). For them, programmes to combat poverty
and to ensure guaranteed minimum income, housing and employment
have been set up (see also paragraphs 56 and 57 in Part I).
(i) Projects to combat poverty
224. In the framework of the National Programme
Against Poverty, which covers all persons resident in Portugal and
is directed by the Ministry of Solidarity and Social Security, projects
have been set up which include the Gypsy population. Projects to
combat poverty are located in places with sizeable groups of Gypsies,
at Braga, Porto, Viseu, Santarém, Lisbon, Setubal/Almada,
Evora, Beja, Faro, Olhão, Portimão, Neiva and Cávado.
They are directed jointly by the services dependent on the Ministry
of Solidarity and Social Security and by individual social solidarity
institutions. The Evora project, for example, covers 2200 persons,
the Beja project covers 12 Gypsy families with 72 persons; the other
projects are not all quantified because they include other population
groups at risk and other minority groups.
(ii) Pilot guaranteed minimum income projects
225. The pilot guaranteed minimum income projects
executed throughout the national territory have not so far produced
general statistics broken down by the ethnic origin of the beneficiaries.
It can nevertheless be said that an important number of Gypsies
are receiving the guaranteed minimum income in projects taking place
in Bragança, Coimbra, Peniche, Lisbon (Carnide), Almada and
Setubal.
226. It can also be said that the insertion
programmes under way are being structured to take account of the
social and cultural specificities of the groups to which the beneficiaries
belong, which seems to indicate concern to find mechanisms conducive
to the success of the insertion process.
(iii) Housing
227. With regard to housing, a set of new measures
have been taken to respond more efficiently to the housing needs
of the excluded populations, including the Gypsies. The cultural
diversity of the populations covered by the rehousing operations
is such that it has been necessary to provide for housing with a
spatial layout differing from that of traditional housing so that
the dwellings are adapted to the particular sociocultural characteristics
of the families to be rehoused. It has therefore been necessary
to introduce flexibility into the legal mechanisms in force, permitting
a specific approach to the needs of the populations to be rehoused,
particularly in regard to the technical standards of social housing.
228. In June 1996, decree-law 73/96 made it
possible to take account, in the building of housing at controlled
costs in the framework of public rehousing programmes, of all the
situations where the particular customs of populations require different
designs of housing. This text has therefore made it possible to
resolve the serious problem of rehousing groups with their own sociocultural
lifestyles, with specific habits in regard to the use of space,
as in the case of Gypsy families, for whom it is difficult to adapt
the standards and designs foreseen for different social realities.
(iv) Employment
229. In the framework of the activities of the
Ministry for Qualification and Employment, and through the Institute
for Employment and Vocational Training (IEFP), various projects
are making a positive contribution to the insertion of Gypsies and
other citizens.
230. From June 1996 to 31 December 1997 the
project on "Socioeconomic integration of young Gypsies"
was carried out as part of a global plan of action defined in the
framework of the cooperation agreement signed between the Santa
Casa da Misericórdia in Lisbon (a private social solidarity
institution) and the IEFP. With a total cost of 147 326 334 escudos,
this project was carried out in the Lisbon region (Charneca do Lumiar
and Buraca) and concerned about 200 people. The acquisition of social
and vocational skills was made possible by actions of pre-vocational
preparation, vocational training in the metal-working, garment,
furniture-making and catering sectors, and socioeducational training
comprising regular teaching, social and human training, psychopedagogical
intervention and physical education.
231. A project for the disadvantaged submitted
by the Lisbon Diocesan Secretariat of the National Department for
the Pastoral Care of Gypsies is under way in the framework of the
European Community initiative "Employment -Horizons".
This project, which is addressed to the Gypsy and non-Gypsy population
is being executed in the run-down neighbourhoods of Lisbon and Loures;
it aims to carry out two vocational training courses (garment, pastry-making
and Gypsy mediators/facilitators) for a total of 25 Gypsies. It
includes the constitution of a data bank with facts relating to
the realities of Gypsy life in Europe.
232. The Diocesan Secretariat of the Department
for the Pastoral Care of Gypsies also has five centres functioning
permanently in the "freguesias" (parishes) (smallest local
community administrative unit in Portugal) of Alto Pina, Carnide
and Santa Maria dos Olivais in Lisbon, Buraca in Amadora and Moscavide
in Loures. In all these centres there is a reception, information
and case referral service, and domiciliary visits. These centres
are also attended by 420 nursery school children, of whom 250 are
Gypsies.
233. An application has been made to the regional
social security delegation of Lisbon and the Tagus Valley in the
framework of measure 4 of the sub-programme INTEGRAR, by the Association
Oficina Romani, to carry out actions of special vocational training
for 30 Gypsies in 1997. This project provides for vocational training
in the areas of furniture-making, guitar-making and garment-making,
complemented by school education and various cultural activities.
(v) Gypsy mediators
234. A good practice of a semi-public nature,
since it receives substantial funds from the Government, is the
training of Gypsy mediators in the framework of the Programme for
the Social Promotion of Gypsies of the Santa Casa da Misericórdia.
These mediators have the task (training of the first was completed
in 1994) of ensuring liaison between the Gypsy community and public
and private institutions, identifying the needs of the community
and indicating the path to be taken to meet their needs for employment,
education, housing, etc. (see commentary relating to article 7 on
the education of Gypsies in paragraphs 299 to 313 below).
Article 6
A. Functioning of the judicial system
1. Access to justice
235. With regard to the dissemination and knowledge
of the law, there are compendia of legislation and jurisprudence
in existence as well as data bases. Fuller information on this subject
will be found below.
(a) Legislation
236. This is regularly published in the Official
Journal; it is also available in the data base "Digesto",
created under the auspices of the presidency of the Council of Ministers.
The national press organ, Casa da Moeda, which publishes the Official
Journal, also has a home page on the Internet where numbers of the
Official Journal published since 1970 can be consulted. There are
also some private bases of legislation.
(b) Jurisprudence
237. This is published in the Bulletin of the
Ministry of Justice, the most widely circulated legal journal, which
frequently contains texts of doctrine and commentaries on jurisprudence
useful for most thorough knowledge of the different areas of law.
This Bulletin contains a selection of the law decisions of the Supreme
Court of Justice (penal, private) and the courts of second instance.
The Magistrates' Association's Handbook of jurisprudence of the
courts of second instance is also important.
238. Jurisprudence is also accessible in data
bases. The data bases of the Ministry of Justice have recently been
put on the Internet (http://www.dgsi.pt/). They contain the jurisprudence
of the Constitutional Court, the supreme courts (of justice and
administrative), the courts of second instance and an option permitting
searches to made in the whole universe of judicial decisions at
once. This server also disseminates community law (CELEX base in
Portuguese), also on the Internet.
(c) Public services
239. The public services in general act to publicize
the law. Brochures are published on access to legal information
and justice in the framework of INFOCID - the citizens' information
system on justice - and information is placed on the Internet. There
is the Government home page (http://www.pcm.gov.pt/), the Internet pages
of the Public Administration (http://www.infocid.pt/pgesearch.html),
pages of legislation of the Ministry of Justice (http://www.min-jus.pt/), the page of the Office
of the Procurator-General of the Republic (http://www.pgr.pt/) and the page of the Bureau of
Documentation and Comparative Law (http://www.gddc.pt/) which also contains pages
on the civil law (http://cr3.cea.ucp.pt/leiciv) and penal
law (http://cr3.cea.ucp.pt/lei/lista.html)
in force.
2. Renewal of the judicial infrastructure
240. Renewal of the judicial infrastructure
is an important condition of access to justice. In 1994, 67 contracts
were signed, for 3 palaces of justice, 1 court, 19 registry centres
and notaries' offices, 11 major works of alteration, enlargement
and renovation, and 33 works of conservation in the courts and other
judicial institutions.
241. In 1995-1996, the figures were 6 palaces
of justice, 3 courts, 5 registry centres and notaries' offices,
9 major works of alteration, enlargement and renovation, and 31
works of conservation in courts and other judicial institutions.
There is a constant concern to bring citizens closer to justice,
both by improving the services of justice offered and by improving
the access of citizens to justice, as evidenced by the existence
of the 11 offices mentioned several times above (paragraphs 28,
73 and 74 and 115).
242. For several years, there has also been
a policy of creating new courts whenever the need for them is felt.
Thus, courts of first instance have recently been created at Cantanhede,
Covilhã, Esposende, Estarreja, Fafe, Felgueiras, Maia, Marco
de Canaveses, Matosinhos, Montemor-o-Novo, Montijo, Ponte de Lima,
Rio Maior, Setubal, Sintra and Viana do Castelo. In the matter of
administrative justice, it must be stressed that the Central Administrative
Court, that will also function as a court of second instance, has
also been created, together with two business receivership and bankruptcy
courts, in Lisbon and Vila Nova de Gaia.
243. It is planned to install the courts already
created in Lisbon (one chamber of the family and minors' court,
the ninth chamber of the court of minor civil jurisdiction), Coimbra
(the fifth chamber of the court of minor civil jurisdiction), Marinha
Grande (the third chamber of the court of major jurisdiction), Olhão
da Restauração (third chamber of the court of major
jurisdiction), Peniche (second chamber of the court of major jurisdiction),
São João da Madeira (fourth chamber of the court of
major jurisdiction). This policy of the creation of new judicial
facilities will be continued in the future, to bring justice closer
to citizens.
B. Independence and impartiality of
the judicial power
1. Courts
244. The courts are independent institutions,
forming the judicial power in parallel with Parliament (legislative
power) and the Government (executive power). They are governed by
articles 202, 203, 209, 221 and 277 et seq. of the Constitution.
Thus, the Constitution provides for the existence of the Constitutional
Court, responsible for the administration of justice in matters
of a legal and constitutional nature (art. 221 et seq., art. 277
et seq.), the Supreme Court of Justice, at the top of the judicial
organization formed by the courts of first instance and the courts
of second instance, competent in civil, social and criminal matters;
the Supreme Administrative Court, at the top of the system of administrative
justice formed by the Central Administrative Court (second instance),
the district administrative courts (first instance), the tax courts
of first instance, the customs and fiscal courts, the administrative
court of Macao, the tax court of second instance (art. 209 of the
Constitution and 2 of decree-law 129/84 of 27 April), the Court
of Audit, the military courts, the maritime courts (art. 209 to
214 of the Constitution). The courts are organs of sovereignty with
competence to administer justice (art. 202 of the Constitution).
They are independent and they are subject only to the law. Their
decisions are binding on all public and private entities and take
precedence over the decisions of all other authorities (art. 205
of the Constitution).
2. Career and status of judges
(a) Appointment
245. Judges are appointed by the Supreme Council
of Justice after they have attended a three-year course at the Centre
for Judicial Studies (National School of Magistrates). The minimum
age for admission to this course at the National School of Magistrates
is 23 years and entrants must be under 35 years. The course is divided
into a period of theory and practice, an initiation course and a
pre-assignment course. The option of becoming a magistrate (judiciary
or Public Ministry) follows the first phase which lasts ten months.
The initiation course also lasts ten months. The pre-assignment
course lasts six months. After this last course, the trainees are
required to become effective. They must remain in service as magistrates
for a minimum period of five years.
246. The Supreme Council of Justice is the highest
organ of management and discipline of the judiciary magistrates.
It is its task to appoint, post, promote, exonerate and exercise
disciplinary action in regard to the magistrates, to propose legislative
measures to the Ministry of Justice to improve efficiency and improve
judicial institutions, and order inspections and inquiries into
the judicial services. The Council is presided by President of the
Supreme Court and its members comprise a group of two elements designated
by the President of the Republic, one being a magistrate, seven
members elected by Parliament and seven judges elected by their
peers.
247. The magistrates have duties of exemption,
impartiality and probity. They cannot be arrested or detained without
affirmation of fault by a court, except in cases of flagrante delicto
punishable with a prison sentence of more than three years. In case
of detention, a magistrate is immediately brought before the competent
judge. Preventive prison sentences and sentences depriving magistrates
of liberty are served in a prison establishment in which they are
separated from other prisoners. When a search is necessary at the
residence of a judiciary magistrate, it is overseen - on pain of
nullity - by the competent judge who immediately alerts the Supreme
Council of Justice to ensure that a member delegated by the Council
is present.
248. In any other situation, magistrates may
only be made responsible by means of a disciplinary procedure conducted
by the Supreme Council of Justice. They do not generally have civil
responsibility, except when they are convicted of crimes of corruption,
in cases of fraud, when the law expressly imposes this responsibility
on them, or when they commit a denial of justice. A criminal procedure
may be combined with civil responsibility in cases of denial of
justice.
(b) Studies and legal training
249. After their first degree (five years),
judges follow the courses at the National School of Magistrates
(three years); they are then junior magistrates. In the first year
they follow a period of theory and practice. The phase of activities
of theory and practice begins on the first of October after the
competitive entrance examinations and ends ten months later. Subjects
such as legal methodology, judicial psychology, judicial sociology
and languages are compulsory. Professional and applied subjects
are also compulsory: these include analysis of jurisprudence, criminology,
criminalistics and penology, forensic medicine and psychiatry, and
judicial technology. Finally, the activities of theory and practice
include formative and special subjects, such as systems of comparative
law, judicial organization and business sciences.
250. After this period, the junior magistrates
are graded (inadequate, adequate, good; the first being excluded)
and must choose between joining the judiciary or the prosecution
service within ten days of publication of the results. The following
year, again for ten months, there is an initiation course which
takes place in the judicial courts under the direction of a judge
or a prosecutor, depending on the option selected by the candidates.
They participate in the making of decisions without being responsible.
At the end of these ten months, there is a further grading similar
to that described above. There then follows a pre-assignment course
lasting six months during which the trainees reach decisions on
their own responsibility, but with the help of a confirmed magistrate.
After this course, the magistrates are placed on effective duty.
251. In addition to the initial training of
judges, the National School of Magistrates is responsible for the
continuing training of magistrates. It therefore organizes seminars
on the European Convention on Human Rights, community law, new codes
recently published, etc. It must be added that magistrates receive
free of charge the Official Journal and the Bulletin of the Ministry
of Justice, to enable them to know the law and jurisprudence. They
also have free access to the data bases of the Ministry of Justice
and can receive computer training in order to access them. Finally,
they can take part in the courses of continuing training organized
by the National School of Magistrates.
(c) Remuneration
252. The remuneration of judges is established
so as to guarantee their independence and the constitutional dignity
of their function, in relation to other levels of remuneration in
the public administration. Judges must reside in the constituency
of the seat of the court where they carry out their functions. They
have the right to their own residence or to a subsidy for a residence
in the judicial constituency in which they work. They may not, in
principle, be absent from the judicial constituency where they work
during the exercise of their functions. They may be absent, however,
when they have a licence to that end, on judicial holidays and Saturdays,
Sundays and public holidays. They must, however, leave directions
as to where they can be found. An illegitimate absence entails a
loss of salary and the disciplinary responsibility of the magistrate.
253. Magistrates have certain special rights:
to a confidential telephone, to access to data banks as mentioned
above, to surveillance for personal security, the right to carry
arms, the right to have legal expenses waived in any case in which
the judge is the principal party or an accessory on account of the
exercise of his functions. In regard to conditions of work, important
efforts have been made to ensure that they are continuously improved.
This is the case for information, the creation of better working
conditions (going as far as providing greater comfort to magistrates
and staff with modern office design and better equipment), and the
reorganization of clerks' offices.
3. Auxiliary justice personnel
254. In addition to the judges and the prosecutors,
there are auxiliary justice personnel. They are trained at the Centre
for Justice Officials, which prepares them for life in the courts.
There are 7 384 such staff who figure under the heading of "Personnel
of the General Directorate of Judicial Services" in the statistics
relating to justice. Officials of other services of justice are
not counted, such as those of the General Directorate of Registration
and Notarial Services, the Judicial Police (which has 2 183), the
Institute for Social Reinsertion, etc.
C. Non-interference
1. Independence
255. Judges are independent; there is no possibility
of pressure on magistrates. They are irremovable, and they may not
be held responsible for their decisions. Thus, magistrates cannot
be arrested or detained without an interim accusation order (pronúncia)
except in cases of flagrante delicto for a crime punishable by a
prison sentence of more than three years. This should be seen as
a guarantee of independence.
256. Moreover, the organizational law on judicial
courts (law 38/87 of 23 December, amended by laws 49/88 of 19 April,
52/88 of 4 May, 24/90 of 4 August and 24/92 of 20 August) affirms
that the judicial courts are sovereign organs charged with the administration
of justice on behalf of the people. Article 3 establishes that the
courts are subject only to the law, their independence being guaranteed
by a judicial organ of management and discipline, the Supreme Council
of Justice, by the irremovability of judges and their refusal to
submit to orders or instructions other than the execution of the
decisions being appealed. The same regime applies to the administrative
and fiscal courts, whose status figures in decree-law 129/84 of
27 April and the law on procedure in decree-law 267/85, of 16 July.
257. The magistracy decides on the questions
brought before it in an impartial manner, on the basis of facts
and in accordance with the law, without any restriction. Judicial
decisions are binding and take precedence over any other decision.
The courts have jurisdiction over any question of a judicial nature
and have exclusive authority to decide whether a case is within
the domain of their competence. Moreover, there is no unauthorized
or inadequate interference in judicial process, since the decisions
of the courts cannot be reviewed by non-judicial entities. Finally,
all have the right to be judged by the common courts or by courts
employing legally established procedures. Courts which do not employ
the procedures established in the laws on legal proceedings cannot
be created to displace the jurisdiction of the ordinary courts or
the judicial courts. All these principles are enshrined in the organizational
law on judicial courts.
258. In regard to the Public Ministry, there
is also partial independence, in terms of autonomy, vis-à-vis
the Government. The laws that govern it are law 47/86 of 15 October,
and law 23/92 of 20 August (see the paragraphs below).
259. The Office of the Procurator-General of
the Republic is presided by the Procurator-General of the Republic
who, with the Supreme Council of the Public Ministry, directs the
prosecution magistrates. The Procurator-General represents the Public
Ministry in the higher courts, directs the activity of the Public
Ministry, convenes and presides over the Consultative Council of
the Office of the Procurator-General and convenes and presides over
the Supreme Council of the Public Ministry, the supreme organ of
self-government of this magistracy, which exercises powers of fiscalization
and control over the magistrates of the Public Ministry. The competences
of the Office of the Procurator-General of the Republic include
higher inspection of the activity of the different organs of the
criminal police.
260. The magistracy of the Public Ministry is
parallel to the judicial magistracy and independent from it. The
magistrates of the Public Ministry are responsible and hierarchically
subordinated. Responsibility consists in answering in terms of the
law for the exercise of their duties and the execution of the directives,
orders and instructions they receive. The hierarchy consists in
the subordination of the lower grade of magistrates to those of
the higher grade.
D. Impartiality
261. The guarantees of the courts' impartiality
are contained in the provisions that permit affirmation of their
independence. Thus, under the organizational law on judicial courts,
it is for the judicial courts to ensure the defence of the rights
and interests legally protected, to repress violation of democratic
legality and to resolve conflicts of public and private interests
(art. 2). This is done in full independence (art. 3) by the courts,
all parties having access to justice, and such access may not be
denied on the grounds of insufficient economic means (art. 4). Finally,
an important guarantee of impartiality, hearings in the judicial
courts are normally public (art. 7), unless the court, faced with
particular circumstances, decides otherwise.
1. Conflicts of interests
262. If there is a conflict of interests, the
magistrate must ask to be taken off the case. If he does do so,
any party may so request up to the sentence. The law (new Code of
Civil Procedure, art. 122 to 136) distinguishes between impediments,
which prevent a judge from exercising his functions in contentious
or voluntary jurisdiction (for example, the judge is a party to
the case) and suspicions, which constitute doubt - or the possibility
of doubt - concerning the justice of the decision (for example,
the judge is related to one of the parties to the case). In the
first case, the judge declares there is an impediment, while in
the second case, he cannot do so but may ask to relinquish the case.
This may also be requested by the parties.
2. Activities of a political nature
263. Judges may not exercise any political activity;
paragraph 1 of article 11 of the Judicial Magistrates' Statute (law
21/85 of 30 July, law 2/90 of 20 January, law 10/94 of 5 May) provides
that magistrates may not exercise political or partisan activities
of a public nature. Judges may nevertheless form and join associations
of judges or other organizations intended to represent their interests,
promote their professional preparation and protect their judicial
independence. The Bench Association is the association that represents
them.
E. The effectiveness of channels
of judicial remedy
1. Procedure
264. The usual procedure in civil proceedings
is the ordinary lawsuit which may be one of declaration or of execution.
An ordinary lawsuit takes place when the value attached to the case
exceeds the amount determined to permit intervention by the Appeal
Court (Relaçao), which is 2 000 000 escudos. When the value
only falls within the competence of the first instance, 500 000
escudos, there can be no appeal to the court of second instance.
265. In penal procedure, the criterion that
determines ordinary procedure (common procedure) is the length of
the prison sentence applicable in theory for the crime. If the sentence
is equal to or more than three years, the procedure followed is
the ordinary procedure; otherwise, it is the summary or simplified
procedure.
266. Appeals are not in fact but in law. In
civil procedure, judgement in fact precedes judgement in law and
there is no appeal in fact, but simply a claim made to the court
which decides, if it can, on the spot, in accordance with the provisions
of article 653 of the new Code of Civil Procedure.
267. In penal procedure, an appeal in fact is
accepted when the decision in the first instance is unintelligible
or incomprehensible, under article 410 of the Code of Penal Procedure.
This corresponds to a double degree of jurisdiction in fact in so
far as since article 410 of the CPP covers situations of judicial
error, it finally covers all the cases in which an appeal in fact
might become necessary.
268. The constitutional appeal that concerns
procedure in a court is an appeal for specific control of constitutionality,
since a direct constitutional appeal founded on the violation of
fundamental rights does not exist. An appeal for specific control
of constitutionality is obligatory for the Public Ministry and takes
place whenever the allegation that a norm is unconstitutional has
been made by a party to the proceedings or by the judge, who, if
necessary, may not apply the norm he considers to be unconstitutional.
If the Constitutional Court decides that the norm is unconstitutional,
it is considered null in the context of the case, but remains valid
for other situations. However, the third time it is decided that
the same norm is unconstitutional, in the third case in which an
appeal is made, the norm is declared unconstitutional with general
binding application.
2. Equitable judgement
269. Procedure before the Portuguese courts
is considered to be equitable. In practice, anyone who has a right
for his case to heard by a court has access to a court, the court
being independent, impartial, established by law and competent to
decide. In regard to the fairness of the court, each of the parties
may state their case in conditions that do not put them at a substantial
disadvantage, throughout the proceedings, in relation to the adverse
party. Thus, the rights of the defence are respected and there is
equality of arms and contradictory debate.
270. It is important to mention certain questions
and the way in which they have been resolved to demonstrate the
equity of the procedure. The right of oversight by the Public Ministry
in appeals is strongly challenged by lawyers. This is because the
Public Ministry may respond to the appeal made before a court and
thus upset the balance of procedure. The Constitutional Court nevertheless
considers that there is no unconstitutionality when the party which
has brought the appeal is able to respond to the formulation of
its position by the Public Ministry in cases where it has evoked
a new argument or a rebuttal of the appeal on the part of the Public
Ministry.
271. The order introducing the judgement before
a court (pronúncia) has not been regarded by the European
Court of Human Rights (Saraiva de Carvalho case) as a situation
involving the same judge when the judge intervenes in the interim
decision and in the decision on substance.
272. The Constitutional Court considers that
the Code of Penal Procedure of 1987 guarantees the double degree
of jurisdiction in regard to the facts: indeed, article 410, foreseeing
the unintelligibility of the decision that is being appealed, covers
practically all the cases in which a new judgement of facts is needed,
so as to avoid a possible judicial error.
273. In regard to the length of the procedure,
there is not yet any means foreseen to accelerate civil proceedings,
but the possibility exists in penal procedure of requesting extraordinary
acceleration of the procedure under articles 108 and 109 of the
Code of Penal Procedure.
3. Judicial control of the deprivation of liberty
274. Judicial control of the deprivation of
liberty is assured, since application for habeas corpus obliges
judges to take cognizance of cases within forty-eight hours. This
is the case for detention by the police authorities. Preventive
detention, foreseen in article 202 of the Code of Penal Procedure,
is decided by a judge in the light of the circumstances of the case.
275. Preventive detention cannot be applied
when, specifically, there is no flight or danger of flight, no risk
of interference with the course of the inquiry or preparation of
the trial, specifically in regard to proof; no danger, on account
of the circumstances of the crime or the personality of the accused,
of a disturbance of public order and peace or the continuation of
criminal activity.
276. Although the application of preventive
detention is not obligatory for crimes subject to a maximum penalty
of more than eight years' imprisonment, if it is not applied by
the judge, he must give an account of the reasons that have led
him not to apply preventive detention in that particular case (art.
209).
277. Preventive detention is subject to maximum
periods of application. The accused must be released if charges
are not formulated within six months; if, in the eight months of
pre-trial proceedings, there has been no investigation decision;
if, within eighteen months, there has been no conviction in a court
of first instance; and if there has been no decision with force
of res judicata within two years. Under article 213 of the Code
of Penal Procedure, the judge proceeds every three months to review
the continued existence of grounds for detention, deciding whether
it should be maintained or whether it should be replaced or revoked.
4. Reasonable delay
278. Most of the complaints against Portugal
brought to the Commission and the European Court of Human Rights
have to do with a reasonable delay. Measures have been taken, however,
to combat this problem, notably in civil procedure, through the
adoption of a new Code of Civil Procedure.
279. At the same time, there has for many years
been a policy of selection and continuing training of new magistrates.
Thus the number of judges has risen from a small group in 1974 to
1 213 today and 939 prosecutors.
280. The number of legal actions has also increased
significantly since 1974. The number of cases under way fell between
1994 and 1996 and the number of cases concluded also fell. In 1990,
the courts heard 1 277 049 cases, of which 594 103 were concluded.
In 1991, 1 351 135 cases, of which 709 781 were concluded. In 1992,
1 555 814 cases, of which 792 612 were concluded.
281. 1994 was an important year. The volume
of cases was highest - 1 620 752 -as was the volume of cases concluded
- 961 427. 1995 and 1996 had less movement, with respectively 1
282 921 cases and 523 324 cases concluded, and 1 430 088 cases and
545 046 cases concluded. These figures show the extent of the movement
in the judicial courts and the fact that nearly half the volume
of legal actions each year are finished cases.
5. Execution of decisions of justice
282. The decisions of civil, penal and administrative
justice are generally respected. They are reasoned and binding for
all public and private entities and take precedence over the decisions
of any other authority. Penal decisions are executed once they have
acquired force of res judicata. In civil matters, where there is
no enforceable title, the sentence not being one, it is necessary,
following the procedure of sentence to payment, to start enforcement
proceedings. This is done if the sentence is not carried out by
the defendant.
283. When the official responsible for the enforcement
of a penalty does not collaborate, there is the crime of disobedience,
assistance by the official in evasion (art. 350 of the Penal Code),
or negligence on guard (art. 351 of the Penal Code). There may also
be refusal to cooperate (art. 381 of the Penal Code). All these
situations determine adequate punishment.
F. Role and status of prosecutors
284. The Public Ministry is the organ of the
State responsible, under law 47/86, for representing the State,
exercising penal action, defending democratic legality, and the
interests for which it is responsible. The Public Ministry is autonomous
in relation to the organs of power, while being bound by its duty
of respect for the criteria of legality and objectivity and by the
exclusive subjection of magistrates and agents of the Public Ministry
to the directives, orders and instructions foreseen by the law (see
paragraphs 258 to 260 above).
285. Relations with the Ministry of Justice
are, in civil matters, to represent the State as a simple party
that gives its instructions to the Public Ministry in the same way
as a private party would to his lawyer. In penal matters, the Public
Ministry acts ex officio without being subject to the directives
of the Government.
286. The Public Ministry is represented in the
judicial courts by the Procurator-General of the Republic in the
supreme courts, deputy procurators-general in the courts of second
instance, procurators of the Republic and delegates of procurators
of the Republic in the courts of first instance.
287. The Office of the Procurator-General of
the Republic is the supreme organ of the Public Ministry: it comprises
the Procurator-General of the Republic, the Supreme Council of the
Public Ministry, the Consultative Council of the Office of the Procurator-General
of the Republic, junior magistrates and the registry of the Office
of the Procurator-General of the Republic.
288. The Supreme Council of the Public Ministry
exercises functions of discipline and management of the officials
of the Public Ministry and the justice officials of the Public Ministry.
It is composed of the Procurator-General of the Republic, the deputy
procurators-general in the courts of second instance, a deputy procurator-general
who has no relation with the courts of second instance, two procurators
of the Republic elected by the procurators of the Republic, four
delegates of the procurator of the Republic elected by the magistrates
of their rank and three persons of recognized merit designated by
the Ministry of Justice.
289. The Consultative Council gives opinions
on the legality of any act for which its opinion is obligatory,
at the request of the Government in regard to drafts of legislative
texts, on the legality of contracts in which the Government is interested,
and on any other legal question submitted to it for appreciation.
It has functions similar to those of the French Council of State.
290. The junior magistrates are representatives
of the Public Ministry with the rank of deputy procurator-general
in all the directing departments of the central Administration.
They have consultative functions in these departments.
291. The Bureau of Documentation and Comparative
Law of the Office of the Procurator-General of the Republic completes
the picture. It is dependent on the Procurator-General of the Republic
and is directed by a deputy procurator-general; it must furnish
all the information requested of it, in particular by prosecuting
counsel and judges, on international, foreign and community law.
It also has human rights functions: it is the office that coordinates,
among other activities, the preparation of reports on the different
conventions of the United Nations submitted by the Portuguese Government
to the various organs of control established by them. It also ensures
continuous dissemination of information on the protection of human
rights, both at the national and international levels.
Article 7
General provisions
292. The Constitution recognizes that education
must help to do away with economic, social and cultural inequalities,
enable citizens to participate democratically in a free society
and promote mutual understanding, tolerance and a spirit of solidarity
(art. 74, para. 2). The basic text also recognizes that everyone
has a right to education, with equality of opportunities for access
to school and success in education (para. 1). This naturally means
that all groups of the population will have the same possibilities,
no difference in their treatment being permitted. It is also an
imperative in the field of education of the Convention on the Elimination
of Discrimination ratified by Portugal.
293. According to the framework law on the educational
system (law 46/86 of 14 October), education aims to promote the
development of a democratic and pluralist spirit, respectful of
others and their ideas, open to dialogue and the free exchange of
opinions with a view to forming citizens capable of judging their
social environment in a critical and creative spirit and engaging
in its gradual transformation (art. 2, para. 5). This takes place
in the framework of the European universalist tradition and of the
growing interdependence and solidarity needed between all the peoples
of the world.
294. In this spirit, a programme entitled "Education
for all" was created in 1991 (resolution No 29/91 of the Council
of Ministers). The main objectives are as follows:
(a) To promote attitudes of solidarity and cooperation
between all agents involved in education, particularly at the community
level;
(b) To promote the adoption of measures of intervention
to promote the success of pupils with special needs in education,
in particular those belonging to ethnic and linguistic minorities;
(c) To promote the adaptation of education to
social, economic, cultural and environmental reality.
295. In the framework of the promotion of foreign
cultures in the Portuguese school system, mention must be made of
the adoption of the statute relating to foreign assistants in official
primary and secondary schools (decree-law 8/91, of 8 January). Foreign
assistants are agents for the dissemination of their language and
cultural cooperation with Portuguese teaching establishments.
296. In regard to the teaching of religion (see
the comment on article 5, under the heading "Religious participation
in education" in paragraphs 201 to 203 above, within the educational
system, attention must be drawn to regulatory decree 104/89, of
16 November. In accordance with article 41, paragraph 5 of the Constitution
guaranteeing freedom to teach all religions practised in the framework
of their respective denominations, this regulatory decree aims to
ensure that the different religious denominations enjoy equality
of opportunity to teach the fundamental principles of their religion
during pupils' study time. For it to function an application must
be made by the competent authority, mandated by the religious denomination,
provided that a minimum of 15 pupils in each school have requested
the creation of such a class at the time of their enrolment.
297. Under decree-law 286/89, of 29 August,
which develops law 46/86, of 14 October, education is divided into
primary education and secondary education. Primary education is
divided into three cycles, the first lasting one year and containing
the possibility of religious education, the second lasting two years
and containing the same possibility, for one hour per week, and
the third lasting two years and containing the same possibility,
for one hour per week. Secondary education lasts for three years
and provides for one hour per week of religious education.
298. As an alternative to religious education,
pupils may opt for courses in civic education where there is strong
contact with human rights, which naturally include education for
non-discrimination.
B. The education of Gypsies
299. In the set of measures to ensure better
conditions of access to education for the disadvantaged, special
attention has been paid to Gypsy children (see the comment on article
5 concerning Gypsy mediators in paragraph 234 above).
300. These measures must overcome the increased
difficulties due to the nomadic life of these populations, by definition
not very inclined to a fixed abode. Special reception, especially
in primary schools, has therefore been foreseen for these children,
so that they can be accepted in classes and the teachers trained
to give them support in their learning. In practice the younger
children attend school regularly, unlike the older children. There
are few Gypsies in higher education. The awareness plan introduced
by the Ministry of Education, especially in primary education, is
a decisive step towards the enrolment of this population in school.
It is hoped that Gypsy families will follow the school education
of their children in a responsible manner.
301. The Ministry of Education collaborates
with the social solidarity institutions (such as the Misericórdias).
The authorities follow closely the resolution of the Council of
Ministers of Education of the European Community, which, in May
1994, suggested the adoption of several measures on the schooling
of Gypsy children. These include measures relating to the reception
of these children in schools, support to teachers and Gypsy families,
and study of their history and culture.
302. Resolution 175/96 of the Council of Ministers,
of 19 October, created the Working Group on the Equality and Insertion
of the Gypsies, under the authority of the High Commissioner for
Immigration and Ethnic Minorities. This working group has already
published a report (see Part I, paras. 56 and 57) in which it advocates
a certain number of actions that are under way, including educational
measures. Thus, a teacher's guide has been established (in which
the whole curriculum is reviewed taking account of Gypsy culture,
and suggestions are given for activities with children of other
cultures), translations have been made of several works on the schooling
of Gypsy children, on tolerance and on human rights, and some intercultural
education projects have been set up.
303. The Working Group has functioned in close
connection with the Secretariat for the coordination of programmes
of multicultural education. The Teacher's Guide (for 1995) is the
work of that Secretariat. In the year 1996/1997 - 1997 being the
European Year Against Racism - the Secretariat published play and
learning materials inspired by Gypsy culture.
304. The work "Approaches and Perspectives"
on multicultural education, published by the Secretariat, identifies
models and lines of research developed in the United States of America
and in Europe among which there are studies on the schooling of
Gypsies.
305. The Secretariat has translated and published
a UNESCO manual "Tolerance, the threshold of peace". It
has supported the publication by l'Oeuvre des Tziganes of a new
edition of the book by J. P. Liégeois on the Gypsy people
(1995). One hundred copies of the book "The Schooling of the
Children of Gypsies and Travellers", by the same author, have
been purchased. The Secretariat has also translated, published and
distributed the UNESCO human rights calendar and the "Human
Rights Album" of the Council of Europe.
306. In parallel, the intercultural education
project is developing and it should be noted that among the 52 schools
that are at present involved, 14 have a significant percentage of
pupils of Gypsy origin; some of these schools were chosen at the
outset precisely for this reason (for example, the school at Matosinhos).
These 52 schools all have intercultural education projects that
have specific activities for Gypsy pupils, including in particular
the provision of meals, participation in leisure activities and
the development of initiatives and strategies for the motivation
and involvement of Gypsy families and communities (for example,
lessons in the camps, sessions of Gypsy singing and dancing, collection
of Gypsy history and legends).
307. Another action has been the training of
the 200 teachers participating in the project on the use of the
"Teacher's Guide". In the field of action directly related
to schools, there is nutritional, social and pedagogic support to
schools with a significant number of Gypsy children (55 and 167
schools in Lisbon, schools in Beja, Elvas, Nisa, Moura, Penafiel,
etc.) and the distribution of books and publications to schools.
308. The Secretariat's "Inter-cultures"
data bank, which is addressed to all groups of children and not
just Gypsy children, and is continuously updated, nevertheless shows
that in spite of the efforts undertaken, the rates of failure and
dropout of Gypsy children are very high, even in comparison with
other ethnic groups.
309. Apart from the Secretariat's activity,
but still in relation to the activities of the Working Group on
Gypsies, there is a link with the Department of Primary Education
of the Ministry of Education. Through this, the project "Going
to school" has been developed; this has so far trained six
young Gypsies who have been placed in schools with a high percentage
of Gypsy pupils where they become facilitators with the Gipsy communities,
awakening parents to the need to send their children to school and
helping them - with the support of the teachers - to resolve their
everyday problems and to make good use of their leisure.
310. The project "Learn with me" consists
in the development of learning materials to support itinerant pupils:
these materials are intended for distribution to schools in the
first cycle of primary education, preparing in particular for the
learning of reading and writing and taking account of the itinerant
situation of Gypsy children.
311. In the framework of this project, now targeting
the second and third cycles of primary education, a new method is
being launched with the creation of a "mother school"
(where pupils stay longest and where they are initially enrolled),
which takes responsibility for the pupils' school career, develops
contacts with itinerant families, prepares support materials and
maintains close contacts with the teachers at the schools through
which the pupils pass. This project is also concerned with the beginning
of distance learning, the subjects taught by the Palmela 3 + 5 school
being in the process of experimentation.
312. With regard to the training of teachers,
two activities are under way:
(a) The training of teachers in Gypsy history
and culture with the support of the Gypsy mediators and specialists
in these subjects;
(b) The training of heads of schools with the
highest percentages of Gypsy pupils, in partnership with Italy and
Greece and with the support of the European Community.
313. With regard to recurrent education, families
are encouraged as necessary to help the young with reading, writing
and counting and with their attendance at primary school, which
is compulsory.
C. Cooperation with the Portuguese-speaking
countries of Africa
314. In regard to cooperation with the Portuguese-speaking
countries of Africa, mention must be made of order 592-B/89, of
29 July, which establishes the regime for access to public higher
education in Portugal by students originating from those countries.
Students who have not finished their secondary school are permitted
to enrol in a 12th year course, corresponding to the curriculum
they have followed in their countries of origin and to the entry
requirements for the higher education course they wish to follow
in Portugal.
315. To ensure that the students are fully integrated,
they are given social and logistic support involving, in particular,
access to university halls of residence and restaurants, as well
as complementary learning support covering the disciplines in secondary
education in which they have had learning difficulties, and which
are required for admission to higher education. This support also
aims to eliminate any difficulties with learning the Portuguese
language that the students may have.
316. In the framework of education in general,
without it being specifically composed of measures aimed at the
ethnic minorities, a project is being developed for the teaching
of Portuguese as a second language, which, being supported by the
Commission of the European Community, is intended to train teachers
working with the children of returning emigrants, immigrant pupils
from the countries of Africa and other foreign residents.
D. Specific programmes in the field
of education, culture and information
317. In the field of activity by the State and
in the framework of the educational system, the Secretariat for
the Coordination of Multicultural Education Programmes, created
by regulatory order 63/91, of 13 March 1991, is responsible for
coordinating and stimulating, in the framework of the educational
system, programmes and actions designed to promote the values of
conviviality, tolerance, dialogue and solidarity between different
peoples, ethnic groups and cultures.
318. To this end, it plans, launches and follows
through programmes which provide, inter alia, for:
(a) Linkage and communication between the different
projects under way in the Ministry of Education that deal with cultural
themes, in particular projects with Timorese, Cape Verdean and Gypsy
children and with the children of Portuguese citizens residing in
other countries;
(b) Promotion in schools of a campaign relating
to the Convention on the Rights of the Child;
(c) Linkage with the Institute for Educational
Innovation with the objective of developing, in the framework of
personal and social education, activities of multicultural education
and ethnic conviviality;
(d) The undertaking, with leaders of religious
denominations who have classes of moral and religious education
in schools, of studies to include elements of cultural and ethnic
conviviality in their curricula;
(e) Promotion of a campaign of intercultural
dialogue and appreciation of ethnic diversity in schools, in collaboration
with associations of parents and students and local communities;
(f) Encouragement of community "civic literacy"
actions in the framework of multicultural conviviality, especially
in the urban suburbs, with the support of the General Directorate
of Educational Extension of the Ministry of Education;
(g) Promotion of school competitions on human
rights and the values of solidarity and respect for difference;
(h) Further work on the surveys of the Commission
on the Promotion of Human Rights and Equality in Education on ethnic,
linguistic and cultural diversity in the Portuguese educational
system;
(i) The conducting of a national survey on the
values of Portuguese school children in the fields of tolerance
and multiracial and pluricultural conviviality;
(j) The conduct, by the specialized services,
of studies to identify and analyse the areas and schools at risk
for conflicts or racial violence, and the adoption of appropriate
measures.
319. The Secretariat for the Coordination of
Multicultural Education Programmes has prepared a considerable volume
of documents to support the work - both in the field and in research
- of multicultural education. It has in particular established a
data bank "Inter-cultures" which covers the whole territory
of Portugal and the different ethnic groups - Lusitanians, Africans,
Orientals, Gypsies, etc. The results of this research exist for
the years 1992-1993, 1993-1994 and 1994-1995.
1. First cycle of primary education
320. Analysis of ethnic and cultural groups
for 1994-1995 shows that in continental Portugal, there were 37
695 pupils from different ethnic minorities in the first cycle of
primary education; children of Portuguese emigrants returning to
the country were the largest group, with 11 347 pupils enrolled
in schools of the first cycle, while the culture of Macao had the
smallest number.
321. In the districts of Portugal, children
of returning Portuguese emigrants formed the majority in almost
all districts, with the exception of Bragança and Portalegre
where Gypsy children were in the majority, and Faro, Lisbon and
Setubal, where the culture of Cape Verde was predominant. In the
municipalities, Amadora had 1 268 pupils from Cape Verde, followed
by Lisbon with 807 pupils from Cape Verde, Loures, 727, and Oeiras,
859. This situation was similar for the culture of Angola, with
a total of 1 162 pupils.
322. The educational success rate is highest
among Brazilians (93.94%) and lowest among Gypsies (47.94%). In
several districts, the success rate of most of the ethnic and cultural
groups is 100%, the Gypsies and the children of returning Portuguese
emigrants being excluded from this result.
323. In regard to dropout and repetition in
the first cycle, 3.53% of children from Cape Verde were repeaters;
4.39% of persons originating from São Tome dropped out; 2.50%
of Angolans dropped out; 5.02% of Mozambicans dropped out; 5.35%
of Indians were repeaters; 4.35% of persons originating from Macao
were repeaters; 8.65% of Timorese were repeaters; 2.64% of Gypsies
were repeaters; and 4.52% of pupils from the European Community
were repeaters. This means essentially that the number of pupils
belonging to oriental cultures increased and the number of children
of former Portuguese emigrants diminished over the year.
2. Second cycle of primary education
324. A total of 17 612 pupils were enrolled
in the second cycle of primary education, and if a distinction is
made between direct attendance and distance learning, 16 768 were
in direct attendance. The largest group was that of the children
of former Portuguese emigrants, with 6 106 pupils in direct attendance
and 607 in distance learning, and the smallest group was that of
Macao with only 24 pupils in direct attendance.
325. In the districts, in the most representative
mode, the children of former emigrants took first place in all the
districts, except Lisbon and Setubal where children from Cape Verde
came first. The oriental cultures showed the opposite trend, only
being represented in the districts of Faro and Lisbon.
326. In the municipalities, still in terms of
direct attendance, those with the largest groups were Amadora, with
475 pupils from Cape Verde, and Oeiras with 406 pupils also from
Cape Verde. In distance learning, the group of 607 children of former
Portuguese emigrants formed the majority in all districts, with
the greatest concentration in Braga, with 123 pupils. While other
cultures did not have very large numbers, mention may nevertheless
be made of the European Union with 77 pupils and the Angolans with
53 pupils.
327. In direct attendance, the best rates of
success were achieved by the groups from Mozambique, Timor, Macao,
India, children of former emigrants, Brazil and the European Union,
each with rates of success of more than 90%.
328. Dropout and repetition are very common
among these pupils. 0.04% of Cape Verdeans dropped out; 2.65% of
Guineans were repeaters; 12.04% of children from São Tome
were repeaters; 4.68% of Angolans were repeaters; 4.92% of Mozambicans
dropped out; 14.29% of Timorese were repeaters; 26.09% of children
from Macao were repeaters; 13.13% of Indians were repeaters; 1.02%
of Gypsies were repeaters; 10.1% of children of Portuguese emigrants
were repeaters; 0.79% of Brazilians dropped out; 2.03% of children
from the European Union were repeaters.
329. It should be mentioned that large numbers
of pupils originating from São Tome, Timor and Macao joined
the second cycle, while many children of former emigrants dropped
out.
3. Third cycle of primary education
330. The third cycle of primary education was
attended by 23 411 pupils from ethnic and cultural minorities, including
the children of returning Portuguese emigrants who had 10 261 pupils
enrolled. Angolans and Cape Verdeans came next, with 3034 and 2025
pupils respectively.
331. With regard to representation in the districts,
the group of former emigrants was predominant, except in Lisbon
where the culture of Cape Verde had a total of 1 434 pupils. In
the municipalities, Amadora had 453 Cape Verdeans enrolled.
332. The rate of school success varies among
the groups. For Cape Verde, it was 78.68%; for Guinea Bissau, 86.06%;
for São Tome, 86.65%; for Angola, 85.25%; for Mozambique,
87.68%; for India, 84.19%; for Macao, 91.67%; for Timor, 84.04%;
for the Gypsies, 77.78%; for the children of former emigrants, 89.93%;
for the Brazilians, 91.15% and for the European Union, 88%.
333. For dropout and repetition, the figures
were as follows: 5.17% of Cape Verdeans dropped out; 0.48% of children
originating from Guinea Bissau dropped out; 2.56% of children from
São Tome were repeaters; 3.36% of children from Angola dropped
out; 5.33% of children from Mozambique dropped out; 18.85% of children
from Timor were repeaters; 3.64% of Gypsies were repeaters; 8.51%
of children of former emigrants dropped out; 8.97% of Brazilians
dropped out; 13.50% of children from the European Union dropped
out.
334. In the third cycle, the number of pupils
belonging to oriental cultures increased, while the number of children
of former emigrants, Brazilians and citizens of the European Union
decreased significantly.
4. Secondary education
335. Secondary education received 11 256 pupils
from different ethnic groups. The children of former Portuguese
emigrants were the most numerous, with 4 961 enrolments. The culture
of Angola was represented by 1 697 enrolments and the culture of
Mozambique by 947 pupils.
336. In most of the districts, the children
of former emigrants were the largest group, with the exception of
Lisbon, with 348 children from Angola and 241 children from Mozambique
enrolled; Portalegre, where the group from the European Union was
the largest, with 73 enrolled; and Setubal, where there were 413
pupils from Angola. It was in the district of Braga that there were
the most children of former emigrants (643) enrolled, followed by
Porto (561) and Aveiro (480). The municipality most sought after
by this group was Guimarães, with 217 pupils, followed by
Castelo de Paiva with 194. In Lisbon, the culture of Angola was
represented by 113 pupils.
337. For all the cultural groups together, the
rate of success for continental Portugal was 77.64% in the tenth
year, 89.81% in the eleventh year and 73.72% in the twelfth year.
In regard to the districts, Portalegre (65.38% in the tenth year),
Evora (78.26% in the eleventh year) and Vila Real (57.14% in the
twelfth year) had the poorest results. The following districts were
among the best: Evora, in the tenth year, had a success rate of
94.44%; Setubal, in the eleventh year, 94.92%; and Evora, in the
twelfth year, a success rate of 89.66%.
338. Dropout: in the tenth year; 7.33%; in the
eleventh year, 5.57%; and finally, in the twelfth year, only 5.17%.
339. Mobility between schools: in the districts,
Bragança attracted the most pupils in tenth year, with 15.33%
of entries; Aveiro attracted the most pupils in the eleventh year,
with 4.03% of entries; and Bragança attracted the most pupils
in the twelfth year with 36.17%. The rates for departures were as
follows for three districts: Beja, tenth year, 24.24% of departures;
Bragança, eleventh year, 20.35% of departures; and Vila Real,
twelfth year, 46.15% of departures.
340. The Secretariat for the Coordination of
Multicultural Education Programmes regularly produces publications
on the multicultural approach to education. It has prepared the
Teacher's Guide on multicultural education (see para. 302) and it
disseminates various important materials in the framework of multicultural
education.
Conclusion
341. Although Portugal is a country whose past
is largely responsible for its present multicultural component,
it is now beginning to face flows of immigration that are being
more strongly felt.
342. Among the groups that may be the object
of racial discrimination, there are traditional ethnic groups such
as the Gypsies and foreigners from the Portuguese-speaking countries,
but there are also new groups, such as asylum seekers, although
these are not very numerous.
343. Compared with other European countries,
Portugal experiences relatively few phenomena of discrimination
and xenophobia. But the movements of intolerance it has experienced
are nevertheless sufficiently serious to merit sustained attention.
344. It would seem, however, that Portugal has
tried, both in its legislation and in practice, to find adequate
means to face up to phenomena of racial discrimination, racism and
xenophobia. Legislation has been described here, and practice is
illustrated by jurisprudence which, in spite of certain hesitations,
already constitutes a judicial tradition that combats racism and
intolerance.
345. Portugal is also not unaware of the economic
difficulties that affect the ethnic minorities and foreigners in
particular. It is therefore working actively to promote improvement
in the living conditions of the populations who are marginalized
by their ethnic situation, to bring about the social solidarity
that is the basis for any democratic human society.
346. Although there is probably still a long
road ahead, the actions carried out in the last few years bear witness
to Portugal's deep desire to guarantee a life of dignity to all
who, for one reason or another, live on its territory and are therefore
subject to the same laws and benefit from the same programmes to
gradually improve the quality of life for all.
|
