Relatórios Apresentados por Portugal
aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
International Convention on the Elimination
of all Forms of Racial Discrimination
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Fourth periodic reports of States parties due
[7 August 1990]
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.
2. The 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.
3. In view of the time which has elapsed since
the second report was submitted to the Committee and of the fact
that a number of sessions of the Committee have not been held, the
present report combines the third and fourth reports of Portugal,
submitted pursuant to article 9, paragraph 1, of the Convention,
and covers the period from 1986 to 1989.
4. The initial report was submitted in August
1985 (CERD/C/101/Add.8) and the second report in August 1988 (CERD/C/126/Add.8).
5. The scope of the present report is naturally
limited as it includes both the third and fourth reports and there
was an opportunity for a dialogue with the Committee when the previous
reports were submitted. Accordingly, the report includes up-to-date
information on the implementation of the Convention in internal
law, taking into account developments that have since taken place.
Attention is drawn, in particular, to the second Constitutional
Amendment Act, recently adopted in August 1989.
6. The third and fourth reports naturally take
account of the Committee’s guidelines (CERD/C/70/Rev.1) which are
an essential working document for the planning and structure of
7. In paragraph (c) of Part I of the Committee’s
Revised General Guidelines. States parties to the Convention are
requested to provide information in connection with General Recommendation
IV, adopted by the Committee on 16 August 1973, on the demographic
composition of their population.
8. As has already been indicated in the reports
submitted previously, official statistics do not indicate the racial
composition of the Portuguese population, because Portugal has followed
the United Nations recommendations concerning the population census
(1980), which suggested that the inclusion of questions relating
to race should be optional.
9. 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.
10.However, in view of the interest shown by
the Committee in this issue, some figures are given below indicating
the demographic composition of the Portuguese population, on the
basis of the country of origin of foreigners residing in Portugal.
Foreign residents in Portugal at the end of
|| 40 253
Sao Tome and Principe
| 14 645
Germany, Federal Republic of
With dual nationality
At the end of 1988, the Aliens Department had issued 4,675 residence
permits and 118 passports to foreigners.
As regards applications for asylum, from 1981 to the end of 1988,
5,658 applications were examined. During the same period, 366 applications
were accepted (9.54 per cent) and 3,228 applicants were turned down.
The applications accepted concerned 712 persons of the following
Sao Tome and Principe
In 1988, 240 procedures were initiated and asylum was granted to
Sao Tome and Principe
A third set of data concerns applications to retain or acquire Portuguese
nationality under Decree-law 308-A/75 of 24 June. At the time of
the April 1974 revolution, when the former overseas territories
gained independence, thousands of persons, most of them Portuguese
nationals who had been residing and working in the territories,
returned to Portugal. Approximately 1 million persons arrived in
Portugal in 1974-75.
Applications to retain or acquire Portuguese nationality were submitted
by persons who, because of the nationality law, were not Portuguese
but, in accordance with the principles of jus soli or jus sanguinis,
wished to preserve their links with Portugal.
Accordingly, it was decided to allow persons, in certain circumstances,
to retain or acquire Portuguese nationality, on the basis of a number
of essential criteria such as the following:
(a) Preservation of family unity;
(b) Avoidance of situations in which persons
involuntarily become stateless;
(c) The holding of public office or membership
in the Portuguese armed forces;
(d) The existence of special ties with the Portuguese
community, on account of residence or economic or professional activities
In July 1989, the situation was as follows:
43,537 applications had been filed;
31,398 applications had been dealt with;
6,774 applications (21.6 per cent) had been
12,498 applications to retain Portuguese nationality
(39.8 per cent) had been granted;
12,126 applications for naturalization (38.6
per cent) had been granted;
6,062 cases were still pending.
The applicants were nationals of the former Portuguese colonies,
mainly the territories of Mozambique and Cape Verde.
Information in relation to
articles 2 to 7
Portugal, a democratic State based on the rule of law, the sovereignty
of the people and the safeguarding and protection of fundamental
rights and freedoms, follows in its international relations, inter
alia, the principles of respect for human rights and co-operation
with other peoples in the interests of the emancipation and progress
of mankind (Constitution, arts. 2 and 7).
Accordingly, one of the essential tasks of the State is to guarantee
fundamental rights and freedoms and respect for the principles of
a democratic State governed by the rule of law and the validity
of laws and other acts of the State, of the autonomous regions and
of local authorities provided they are in conformity with the Constitution
(Constitution, arts. 9 and 3).
In the sphere of human rights, Portugal recognizes the fundamental
rights set out in the Constitution, without excluding other rights
that derive from the applicable rules of international law (Constitution,
To emphasize its concern for the observance of fundamental rights,
the Constitution stipulates that its relevant provisions shall be
interpreted and applied in accordance with the Universal Declaration
of Human Rights and shall be binding on all public and private bodies
Concern for the protection of fundamental rights and freedoms is
shown by their recognition and specifically by assertion of the
principle of equality and non-discrimination and by the establishment
of means of resisting any infringement or denial of those rights
Accordingly, any victim of discrimination on grounds of race, may
request the courts to assert his rights, and may not be denied justice
for lack of means (Constitution, art. 20).
This system is further strengthened by the automatic incorporation
of duly ratified or approved conventions into the Portuguese legal
system, by virtue of the fact that they are internationally binding
All persons subject to Portuguese jurisdiction may thus assert their
interests or rights which may have been breached, before the international
bodies established by the said conventions, such as the European
Commission of Human Rights, the European Court of Human Rights and
the United Nations Human Rights Committee.
While Portugal recognizes the importance of a system of legal protection,
it also takes responsibility for providing resolute, growing and
active support for measures to develop awareness and provide information.
Unfortunately, the existence of a right or the provision of punishment
for violations is no guarantee that such violations will cease to
Portugal’s recognition of this fact has led it increasingly to develop
training activities for judges, members of the police force and
prison personnel, by focusing increasing attention on human rights
in the various curricula.
In addition, the mass media play a vital role in this sphere by
disseminating the most important measures adopted in order to implement
rights, freedoms and safeguards and by developing activities aimed
to educate and develop awareness, on the basis of such values as
tolerance, pluralism, and the coexistence of various schools of
thought and opinion.
Accordingly, this document focuses special attention on these factors,
which, in our view, renew hope in a world marked by understanding,
co-operation, progress and defense of human rights.
This fact was reasserted by the second amendment of the Constitution,
in 1989, whose article 7, paragraph 5, as amended states:
“Portugal is committed to strengthening its
European identity and the activities of European States on behalf
of peace, economic progress and justice within relations between
The previous reports, together with their presentation, have revealed
Portugal’s determination to condemn, as well as to adopt measures
to prohibit, all forms of racial discrimination, and at the same
time to protect rights, freedoms and safeguards in general.
This can be seen from several provisions of the Portuguese Constitution,
and Portugal’s domestic legislation seeks to reaffirm it by pursuing
these aims. Reference is made below to some texts which reflect
Act 44/86, of 30 September, provides that a declaration of a state
of siege or of emergency may in no circumstances affect the right
to life, personal integrity identity, civil capacity and citizenship,
the principle of non-retroactivity of criminal law, the right of
accused persons to a defense, and freedom of conscience and religion.
Suspension of the exercise of rights, freedoms and safeguards, wherever
it is permitted, must always observe the principle of equality and
The constitutional provision governing the state of siege or of
emergency (art. 19) was amended, as part of the second constitutional
reform, in order more clearly to establish the scope of those régimes
(paras. 2 and 3) and to stress the principles of proportionality
and necessity with respect to the measures adopted under the régimes.
Citizens whose rights, freedoms or safeguards are violated by a
declaration of a state of siege or of emergency, or by an unconstitutional
or unlawful measure adopted thereunder, are entitled to compensation
in conformity with the general provisions of the law; their right
of access to the courts for the defense of rights, freedoms or safeguards
which have been or may be infringed cannot in any circumstances
The new Code of Criminal Procedure, adopted by Decree-Law 78/87,
of 17 February, aims to ensure that justice is duly carried out
and that the fundamental rights of individuals are protected, while
at the same time guaranteeing the safety of the community.
The provisions adopted observe the principle of equality of arms
in proceedings, and strengthen the rights of the accused in respect
of defense (art. 61).
For that purpose, the Code provides, for example, that interpretation
services must be available free of charge to anyone taking part
in proceedings who is unfamiliar with Portuguese (art. 92).
In December 1987, the Government adopted legislation on access to
the law and to the courts, providing, under article 20 of the Constitution,
for promotion of the right to legal information and protection.
This will help to ensure that no one is prevented, owing to social
or cultural factors or inadequacy of financial resources, from being
informed of, exercising or defending his rights.
In this spirit, all courts anad judicial offices will gradually
be provided with public information and guidance services.
Legal protection will consist of judicial assistance and legal advice
granted to anyone unable to afford a lawyer’s fees or court costs.
Aliens and stateless persons lawfully residing in Portugal enjoy
this right to legal protection, as do non-resident aliens who are
nationals of countries where a similar provision of the law applies
to Portuguese nationals.
Act 87/88, of 30 July, governs radio broadcasting activities in
Portuguese territory. Since this text will be examined in greater
detail under article 7 of the Convention on the Elimination of All
Forms of Racial Discrimination, only a few basic aspects of it will
be dealt with here.
Pursuant to article 8 of that Act, freedom of though in respect
of radio broadcasting includes the fundamental right of citizens
to information reflecting ideological pluralism and the free expression
of opposite trends of opinion and thought, which is a basic tenet
of democracy. However, the Act prohibits the broadcasting of any
program or message that incites to acts of violence or acts contrary
to criminal law.
Under a ministerial order issued on 10 December 1988, the Portuguese
Government established a Commission for the Promotion of Human Rights
and the Elimination of Inequality in Education with the express
mandate of studying the multidisciplinary aspect of the subject
and proposing measures to further its study and increase awareness
of it among students and teachers.
The Constitutional Court recently handed down a decision on the
General Service Regulations of the National Republican Guard (a
special corps of troops intended for security, the maintenance of
law and order and the protection and defense of the population),
adopted by Order 722/85, of 25 September, and mentioned in Portugal’s
most recent report (CERD/C/126/Add.3, para. 44).
The Office of the Public Prosecutor, which protects the Constitution
in accordance with democratic principles, ordered an assessment
of the constitutionality of several provisions of the Regulations
in the light of their apparent discrimination against gypsies with
respect to the principle of inviolability of domicile and of correspondence.
In its decision, the Constitutional Court found that this principle
had been violated in respect of searches carried out in the domicile
of gypsies: under article 81 of the Regulations, searches could
be carried out at night and without a warrant issued by the judicial
authority concerned, contrary to constitutional provisions and the
law on criminal procedure.
The Regulations recognize (art. 82 of the Civil Code) that the concept
of domicile with respect to nomads should include wagons, caravans
and tents, which in fact constitute their domicile.
Paragraph 2 of article 81 of the Regulations was declared unconstitutional
as being contrary to article 34 of the Constitution.
Portugal firmly condemns apartheid and considers its abolition essential
for peace and development in southern Africa.
Portugal recognizes as legitimate the aspiration of the majority
of South Africans to a régime ensuring full citizenship and equal
enjoyment of civil and social rights. Discrimination with respect
to access to employment, justice and education that is based on
colour is contrary to Portugal’s principles. Portugal understands
the need to put an end to the intolerable injustices brought about
by the apartheid régime and has always unreservedly supported this
goal both in the United Nations General Assembly and in other bodies
and specialized agencies, such as the Commission on Human Rights
and the International Labour Organisation.
This goal can be achieved, however, only through a gradual and peaceful
transformation of South African society that will lead to the establishment
of full democracy that is not based on race. Portugal therefore
supports all efforts to build a society devoid of discrimination
based on colour, religious beliefs or political opinion. It considers
that all South Africans are entitled to take part in the transition
towards such a society and that negotiations including all the parties
concerned must rapidly be initiated if it is to be successful.
The primary aim of these negotiations, in our opinion, should be
to define the means necessary to bring about the full rule of law,
based on the principle of “one man, one vote” and respect for human
The release of Nelson Mandela and other anti-apartheid leaders,
the end of the state of emergency (except in Natal Province), the
meetings held between the Government and the organizations representing
the black majority, and the repeal of the Separate Amenities Act
are all signs of a new climate of developing dialogue in South Africa,
heralding the emergence in the near future of a democratic and non-racialist
With praiseworthy courage, the main agents of this process have,
in a manner we deem irreversible, paved the way for profound and
necessary change in the Republic of South Africa.
Owing to the presence in the Republic of South Africa of 600,000
Portuguese, and to the special ties that exist between Portugal
and both Angola and Mozambique, the Portuguese Government is particularly
interested in the evolution of the situation inside the country
and the prospects for peace and development it may open up in southern
The international community should give careful consideration to
the economic, social and political problems which the new South
African régime will have to face. Portugal is participating, together
with the other members of the European Community, in a Special Program
of Assistance to the Victims of Apartheid, and shares the view that
the support of the international community will be a decisive factor
in building a new, democratic and prosperous South Africa. The two
major Portuguese commercial undertakings in South Africa (Bank of
Lisbon and South Africa and TAP/Air Portugal) are governed by the
Code of Conduct for Companies with Subsidiary Branches or Representation
in South Africa, adopted in 1977 by the European Community and binding
for Portugal since its accession to the EEC. This Code enshrines
the principles of non-discrimination and equal opportunity for all
Portugal has continued to curtail its bilateral economic ties with
South Africa despite the fact that it has considerable investments
in southern Africa, particularly in the Cabora Bassa dam project,
which, in normal operating conditions, would supply hydroelectric
energy to both South Africa and Mozambique.
Portuguese exports to South Africa amounted to a total value of
25.8 million European currency units (ECU) in 1988 and ECU 32 million
in 1989; they accounted for only 0.29 per cent of total Portuguese
exports in 19Imports from South Africa amounted to ECU 91.4 million
in 1988 and ECU 125 million in 1989; they accounted for only 0.77
per cent of total Portuguese imports in 1989.
Portugal has steadfastly advocated dialogue and persuasion as the
means of bringing about a democratic régime in South Africa. It
has endorsed the many representations, decisions and efforts undertaken
in that respect since January 1986 by the European Community, has
co-operated in the numerous initiatives taken under United Nations
auspices and has established bilateral contacts with various representative
sectors of South African society.
In this spirit, Portugal welcomes the recent progress made towards
the abolition of apartheid and, while fully aware of the remaining
obstacles to the achievement of full democracy in South Africa,
appeals to the international community to urge all South African
citizens to work together to build a new, democratic and prosperous
As already stated, the Portuguese Constitution upholds the principle
of equality and non-discrimination, and prohibits associations that
embrace a Fascist ideology, i.e. that adopt, promote or disseminate
values such as colonialism or racism.
The Criminal Code provides penalties for the propagation of ideas
inciting to racial discrimination and for encouragement of racist
activities through the promotion of those ideas through participation
in organizations that uphold them or through support, financial
or otherwise, for racist activities (art. 189). Criminal legislation
also provides penalties for the formation of groups, organizations
or associations engaging in activity whose object is the commission
of a crime (arts. 287 and 288).
The crime of murder is deemed aggravated if it is motivated by racial
or religious hatred.
Act 64/78 on Fascist organizations prohibits the formation of organizations
that advocate violence or uphold fascism, i.e., “the adoption, support
or dissemination of values, principles, institutions or methods
… specifically warmongering, violence as a form of political struggle,
colonialism, racism …”
This principle is echoed in the constitutional provision (art. 163,
para. 1 (d)) on the status of Deputies, and in the complementary
legislation on the subject (Act 3/85, of 13 March), which stipulates
that Deputies who are convicted by a court of participating in organizations
with a Fascist ideology shall forfeit their mandate.
The existing juridical and judicial system covers any situation
of discrimination which may arise and emphasizes the role of information
through awareness-raising and the publicizing of fundamental rights.
In this spirit, and in conformity with the journalists’ code of
ethics (specifically the stipulation, contained in the first chapter,
that journalists must observe the fundamental principles of human
rights and refrain from encouraging racial hatred), the Press Council
issued, in July 1988, a recommendation in connection with a series
of newspaper articles which, in the Council’s opinion, contained
disparaging statements based on race, colour or ethnic origin, thus
inciting to racial hatred.
Following that recommendation, the Press Council alerted public
opinion and requested the Office of the Prosecutor General of the
Republic to carry out an investigation of those acts, which were
punishable under the Criminal Code; this request was granted by
the Prosecutor General.
A movement has recently spread to Portugal of persons known as “skinheads”,
who believe in racial superiority and advocate violent and militaristic
These persons, who invoke nationalist values, turn their hostility
and violence against non-Europeans, particularly black Africans,
show firm opposition to democratic institutions and pluralism, and
support ideas associated with the extreme right.
The movement is formed of young people (some 400), most of them
students, often from families where conflict is rife, who seek to
accomplish their military service in special units subject to rigorous
At present, groups of “skinheads” are found only in large cities
such as Lisbon and Porto. They have been responsible for serious
incidents, including the murder in Lisbon of a member of a political
party, the Partido Socialista Revolucionário (PSR).
These incidents have been reported by the mass media, and the movement’s
activities are closely watched by the judicial authorities and the
The Office of the Prosecutor General of the Republic has ordered
an inquiry aimed at identifying these groups of “skinheads”, determining
their characteristics and discovering their possible connections
with other groups or organizations suspected of similar activities,
with a view to their punishment.
Additional information is to be gathered with a view to initiating,
if necessary, civil or criminal proceedings aimed at dismantling
We are confident that timely recourse to appropriate legal mechanisms
inherent to the rule of law will enable us to deal with this movement.
The two previous reports described the existing legal framework
and the various legislative and administrative measures planned
to bring about a system prohibiting all forms of racial discrimination
in respect of the right to equal treatment before the courts and
any administrative body, the right to security of the person and
protection by the State against violence or bodily harm, and to
protection of political, economic, social and cultural rights.
At the same time, following Portugal’s ratification of the two international
covenants on human rights, the submission of reports to the monitoring
bodies established under those instruments has naturally continued
- see in particular the second report on the application of civil
and political rights (CCPR/C/42/Add.1) submitted in November 1This
report covers in greater detail the measures adopted in pursuance
of the provisions of the Covenant and giving effect to article 5,
paragraphs (a) and (d), of the Convention on the Elimination of
All Forms of Racial Discrimination.
Updated information on the principal measures adopted is provided
A. The right to equal treatment before the
courts and administrative bodies
(See in this regard document CCPR/C/42/Add.1, paras. 171-216 and
805-817; and the previous report, CERD/C/126/Add.3, paras. 78-103.)
As has already been mentioned, the principle of equality laid down
in article 13 of the Constitution is the essential foundation of
the whole of the existing legal order. This article was not modified
in the second revision of the Constitution.
Article 20 sets forth the principle of access to the courts, covering
both the right to information and the right to protection under
This provision was modified during the revision of the Constitution.
Article 20 now reads:
“1. Everyone shall be guaranteed access to the law
and to the courts to defend his or her rights and legitimate interests,
and justice may not be denied to a person for lack of financial
“2. Everyone has the right, in accordance with the
law, to legal information and consultation and to legal assistance.”
Two essential changes have been introduced:
(a) Firstly, the Constitution emphasizes the
scope of the concept of access to justice, meaning not only access
to the courts for the defense of rights and legitimate interests,
but also access to the law, enabling everyone to acquaint himself
with the rights which he enjoys and the means available to him to
ensure their effective realization;
(b) Secondly, in recognition of the universal
nature of the right to legal information and legal consultation
and protection, the expression “all citizens” in the article has
been replaced by “everyone”.
The recent legislation adopted in this area of access to justice
(Decree-Law 387-B/87 of 29 December and Decree-Law 391/88 of 26
October) has bee-n mentioned in the comments on article 2.
The system which has been established aims to ensure that “no one
shall encounter difficulties or be prevented, by virtue of his social
or cultural circumstances or through lack of economic resources,
from becoming aware of his rights, asserting them or protecting
them” (art. 1, para. 1, of Decree-Law 387-B/87).
The law provides that these objectives will be attained through
systematic action and mechanisms of “legal information” and “legal
protection”. Legal protection takes two forms: legal assistance
and legal advice (art. 6 of Decree-Law 387-B/87).
Persons who demonstrate that they do not have sufficient economic
resources to meet the fees due for the services of defense counsel
and to pay the normal court costs in full or in part are entitled
to legal protection (art. 7, para. 1 of the same Decree-Law).
Aliens and stateless persons ordinarily residing in Portugal are
also entitled to legal protection. Non-resident aliens are granted
this right to the extent in their home countries it is granted to
Portuguese nationals (art. 7, paras. 2 and 3).
Legal assistance includes full or partial exemption from payment
of legal costs and expenses, or their deferment, as well as payment
for the services of a defense counsel or solicitador (art. 15, para.
1), such expenses to be paid by the State (art. 47, para. 1). This
system applies to all courts regardless of the procedure followed
(art. 16, para. 1).
Legal assistance may be requested at any stage during the proceedings.
It continues during appeal procedures, regardless of the decision
on the substance of the case, and extends to all procedures associated
with those for which assistance has been granted (art. 17, para.
In the same context, a protocol was concluded between the Ministry
of Justice and the Bar Association in November 1986 establishing
a Legal Information Office with branches in Lisbon and Porto.
This Office is responsible for providing free legal guidance and
advice to all those who do not have sufficient economic resources
to engage a lawyer.
100. Legal advice is
provided by lawyers or trainee lawyers, who must observe the code
of conduct drawn up by the Bar.
101. Article 23 of the
Constitution provides that citizens may apply to the Provedor de
Justiça (Ombudsman) in connection with actions or omissions by the
authorities. The new revision of the Constitution, re-affirming
this concern with the right to equal treatment, emphasized the independence
of the office with an explicit reference in article 23, paragraph
3: “The office of the Provedor de Justiça shall be an independent
organ, and he or she shall be appointed by the Assembly of the Republic”.
102. Furthermore, a
new paragraph has been added stipulating that the organs and staff
of the administrative authorities must co-operate with the Provedor
de Justiça” in the performance of his or her functions (art. para.
103. Another clear reflection
of this concern for equal treatment may be found in the new paragraph
8 of article 32, which provides that in proceedings relating to
administrative offences the defendant must be guaranteed the right
to be heard and the right to a defense.
104. Article 52 of the
Constitution, concerning the right of petition and popular action,
has also been modified. Paragraph 3 now provides that:
“Everyone, personally or through associations for the
protection of the interests in question, shall be granted the right
of popular action in the cases and on the conditions stipulated
by law, in particular the right to promote the prevention, cessation
or judicial prosecution of offences against public health, degradation
of the environment and the quality of life and degradation of the
cultural heritage, as well as the right to seek appropriate compensation
for the victim or victims of such offences”.
105. Mention should
also be made here of the fact that various bills have been presented
to the Assembly of the Republic relating to the manner in which
this right shall be exercised. They include Bills Nos. 491/V (submitted
by the Socialist Party), 517/V (independent deputies), 518/V (Social
Democrat Party), 526/V (Communist Party) and 527/V (Democratic Renewal
106. Regarding the responsibility
of staff of the administrative authorities, the Constitutional Amendment
Act led to a rewording of article 266, by means of which paragraph
2 was strengthened:
“The organs and staff of the administrative authorities
shall be subject to the Constitution and the law, and must, in performing
their functions, respect the principles of equality, proportionality,
justice and impartiality”.
107. In the area of
safeguards for citizens in respect of administrative decisions,
article 268 of the Constitution has also been modified substantially:
(a) A new paragraph 2 has been inserted which
provides that “Citizens shall also have the right of access to administrative
archives and registries, without prejudice to the provisions of
the law relating to national and external security, criminal investigation
and personal privacy”;
(b) The subsequent paragraphs now read as follows:
“3. (formerly 2) Administrative decisions shall be
notified to the interested parties in the manner provided by law,
and must be properly substantiated when they affect the legally
protected rights or interests of citizens.
“4. (formerly 3) All interested parties shall have
the right to lodge an appeal against any administrative decision,
regardless of its form, which harms their legally protected rights
“5. Citizens shall also have the right of access to
the administrative courts to secure their legally protected rights
“6. For the purposes of paragraphs 1 and 2, the law
shall set a time-limit for the response of the administrative authorities”.
108. In the previous
report mention was made of the Code of Criminal Procedure, which
was then in draft form, and its provisions regarding equality of
treatment. As the Code entered into force on 1 January 1988 under
Decree-Law 78187 of 17 February, it is appropriate to recall its
109. The statement of
grounds presented to the Assembly of the Republic indicated that
the general guidelines followed included:
(a) Simplified, less bureaucratic and speedier
procedure compatible with the administration of justice and the
safeguarding of fundamental human rights and social peace;
(b) Equality in law for the prosecution and
for the defense in respect of all procedural acts, and material
equality as regards the availability of “weapons” in the proceedings.
110. Under the Code,
the defendant or, in other words, the person against whom a criminal
charge has been brought (art. 57) must have the assurance that procedural
rights and duties will be exercised (art. 60) through the recognition
of his right to be present at proceedings directly concerning him,
to choose a defense counsel or request a court-appointed counsel,
to be assisted by that counsel in all proceedings in which he participates,
and to be informed of his rights by the judicial authority or police
body before which he is to appear (art. 61).
111. Under article 92,
“If any person who does not know or has an inadequate knowledge
of the Portuguese language is involved in the proceedings, a competent
interpreter shall be appointed, without charge, even if the presiding
judicial officer or one of the participants in the proceedings knows
the language used”.
B. The right to security
of person and Protection by the State against violence or bodily
112. In this area it
is important to bear in mind the report submitted earlier (CERD/C/126/Add.3,
paras. 104-113) and also the second report submitted to the Human
Rights Committee (CCPR/C/42/Add.1, paras. 299-334).
113. Portugal, recognizing
the State’s responsibility for the prevention of torture and the
punishment of those responsible for it, ratified the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment on 9 February 1989 and has recognized the
competence of the Committee to receive and examine communications
from another State party or an individual alleging violations of
a provision of the Convention (see resolution 11/88 of the Assembly
of the Republic, dated 21 May).
114. Portugal has also
very recently ratified the European Convention for the prevention
of torture and inhuman or degrading treatment or punishment (see
resolution 3/90 of the Assembly of the Republic, dated 30 January).
115. In the same context,
the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, which was adopted by the United
Nations General Assembly, has been translated into Portuguese and
given wide distribution.
116. With regard to
the right to security of the person, attention is drawn to the changes
introduced by the Constitutional Amendment Act:
(a) Article 27, paragraph 4, now recognizes
that “Any person deprived of his freedom shall be informed immediately
and in a comprehensible manner of the reasons for his arrest or
detention and of his rights”,
(b) Following the amendment of the Constitution,
article 28, paragraph 2, provides that: “remand in custody shall
not be continued if it can be replaced by bail or by a more favorable
measure provided for by law”;
(c) Lastly, article 30 contains a new paragraph
5 under which “convicted persons who have been sentenced to a custodial
penalty or measure shall retain their fundamental rights, subject
to the restrictions provided for in the sentence and the requirements
arising from its enforcement”.
C. Political rights
117. See in this regard
the previous report (CERD/C/126/Add.3, paras. 114-121) and document
CCPR/C/42/Add.1 (paras. 781-804).
118. The Constitutional
Amendment Act introduced a number of important changes in this area.
With regard to the status of aliens, article 15, paragraph 4 recognizes
that: “the law may grant aliens residing in the national territory,
on the basis of reciprocity, the capacity to vote in elections to
local legislative bodies”.
119. Article 40 deals
with the right to broadcasting time, the right of reply and the
right of political reply, specifying that:
“1. The political parties and trade union and professional
organizations and those representing economic activities shall have
the right to broadcasting time on the public radio and television
service, in keeping with their representativeness and in accordance
with objective criteria to be defined by law.
“2. The political parties represented in the Assembly
of the Republic which do not participate in the Government shall
have the right, in accordance with the law, to broadcasting time
on the public radio and television service, allocated in accordance
with their representativeness, as well as the right of reply and
the right of political reply to political statements made by the
Government on a basis of equality in terms of duration and size
with the space and statements allocated to the Government.
“3. At election time, the candidates shall have the
right to regular and fairly apportioned broadcasting time on national
and regional radio and television broadcasting stations, in accordance
with the law.”
120. In article 50,
concerning access to public service, there is recognition (in para.
“No one may suffer prejudice in an assignment, in his
employment, in his professional career or in the social benefits
to which he is entitled by reason of the exercise of his political
rights or the performance of political functions”
121. The Constitutional
Amendment Act added a new paragraph 3, which provides that:
“As far as access to elective offices is concerned,
the law may only specify the cases of passive electoral incapacity
which are necessary to guarantee the electors’ freedom of choice,
together with immunity and independence in the exercise of the functions
of such offices.”
122. Article 117 of
the Constitution, relating to political parties and the right of
opposition, has also been modified. Paragraph 3 now reads as follows:
“Political parties holding seats in the Assembly of
the Republic which are not represented in the Government shall have
the right, inter alia, to be informed regularly and periodically
by the Government of progress in the principal matters of public
interest, and political parties represented in any other assembly
to which direct elections are held shall enjoy the same right vis-à-vis,
the corresponding executives on which they do not sit”.
123. A new article 118,
concerning referendums, has been included in the text of the Constitution
and the former article 118 on grassroots popular organizations has
been deleted. The basic elements of the new article are as follows:
“1. Citizens with the right to vote who are registered
in the national territory may be called upon to express their views
directly by means of an obligatory vote in a referendum following
a decision of the President of the Republic, on a proposal by the
Assembly of the Republic or the Government, in such cases and conditions
as are provided in the Constitution and by law.
“2. The referendum may relate only to issues of major
national importance on which the Assembly of the Republic or the
Government must take a decision by approving an~ international convention
or a legislative measure.
“3. The following, inter alia, shall be excluded from
the scope of a referendum: amendments to the Constitution, the matters
referred to in articles 164 and 167 of the Constitution (relating
to the political and legislative powers of the Assembly of the Republic
and matters which are of its sole competence) and issues and measures
relating to budgetary, fiscal or financial matters.
“4. Each referendum shall deal with a single issue.
The questions posed shall be formulated in yes/no terms, in an objective,
clear and precise manner, and the maximum number of questions shall
be specified in a law, which must also stipulate the other requirements
for the formulation and conduct of the referendum.
124. Access to positions
in the civil service:
(a) There have been no major changes in the
legal framework governing access to public service.
(b) In this area, a new law on selection of
public servants has been adopted, which reaffirms the principles
previously laid down (see CERD/C/126/Add.3, paras. 119 and 120),
(i) Freedom to apply;
(ii) Equal conditions and opportunity for all candidates;
(iii) Timely publication of information on selection
methods, the final classification system to be used and, where appropriate,
the experience and qualifications required;
(iv) Application of objective evaluation methods and
(v) Neutrality in the composition of the jury;
(vi) Right of appeal.
125. Offences for which
holders of public office are answerable:
(a) In 1987 the Assembly of the Republic adopted
an act relating to the responsibility of holders of public office
for offences committed in the performance of their duties (Act 34/87,
of 16 July);
(b) Offences committed by holders of public
office are those expressly referred to in this Act, those referred
to in the general criminal law which are expressly connected with
the performance of those duties, and those committed in flagrant
violation or abuse of functions or serious breach of the obligations
inherent in the performance of functions;
(c) The holders of public office to which this
Act relates include, in accordance with article 3, the President
of the Republic, the President of the Assembly of the Republic,
deputies in the Assembly of the Republic, members of the Government,
deputies to the European Parliament, holders of local and regional
public office and the Civil Governor;
(d) The Act defines certain particular offences
for which holders of public office are answerable. Some of these
are mentioned below;
(e) Acts prejudicial to the Constitution of
the Republic committed with a view to its modification or suspension
through violence or resort to methods other than the democratic
ones provided for in the Constitution are punishable by imprisonment
(f) Acts prejudicial to the rule of law, where
a person attempts to destroy, modify or subvert the constitutionally
established rule of law including the rights, freedoms and guarantees
established by the Constitution, the Universal Declaration of Human
Rights and the European Convention on Human Rights, are punishable
by imprisonment (art. 9);
(g) Denial of Justice, where a person refuses
to administer justice or apply the law for which he is responsible,
is also punishable by imprisonment (art. 12);
(h) The unlawful suspension or restriction of
rights, freedoms or guarantees involves cases of the suspension
of rights, freedoms or guarantees which by their nature are not
open to suspension, or cases where rights, freedoms or guarantees
are suspended in the absence of the declaration of a State of siege
or a state of emergency, or cases where the exercise of rights,
freedoms or guarantees is prevented or hampered in serious breach
of the rules for the implementation of the declared state of emergency.
This too is punishable by imprisonment (art. 15);
(i) Refusal of co-operation involves situations
in which, following a lawful request by the competent authority
for co-operation falling within the scope of his duties, an office
holder refuses to co-operate for the purpose of ensuring the administration
of justice or any other public service. Such offences are punishable
by imprisonment or a fine.
126. Effects — the final
conviction of holders of public office may, depending on the case,
give rise to loss of office or resignation, and, in the case of
the President of the Republic, loss of the right to be re-elected
127. In the above-mentioned
cases, criminal proceedings (art. 41) may be initiated by:
(a) The citizen or body which has directly suffered
(b) Any member of a deliberative assembly, where
the office holder is answerable to it;
(c) Bodies responsible for the supervision of
public agencies in respect of offences committed by office holders
in the agency being supervised;
(d) The body which has the power to pardon the
office holder in respect of the offences he has committed.
D. Other civil rights
1. The right to freedom of movement and free
choice of residence within the country (see document CCPR/C/42/Add.1,
128. The accession of
Portugal to the European Communities naturally called for the specification
in its legislation of the requirements for entry into, sojourn in
and departure from the territory for nationals of member States
and members of their family, in conformity with the relevant directives
of the Community’s institutions.
129. Decree-Law 267/87
of 2,July therefore addressed this situation.
130. Under article 2,
the following persons may enter and stay in the national territory:
(a) Wage-earning workers who are nationals of
another member State;
(b) Nationals of a member State who have the
right of establishment and the right freely to seek employment;
(c) The spouse and children under 21 years of
age or dependants of such nationals;
(d) The dependent parents or grandparents of
such nationals, or their spouses;
(e) Any other members of the family of such
nationals who are their dependants or reside with them.
131. Entry to the national
territory is allowed upon production of a valid identity card or
passport (art. 2); provision is made for three types of residence
(a) The residence permit of a national of a
member State of the European Communities;
(b) A temporary residence permit;
(c) The residence permit proper.
132. Generally speaking,
a temporary residence permit is issued to:
(a) Nationals of a member State admitted to
the national territory for the purpose of taking up employment for
a period exceeding three -months but not exceeding one year;
(b) Nationals of a member State admitted to
be national territory to perform or to benefit from a contract of
exceeding three months in duration;
(c) Members of their families, under article
8, paragraph 1 (c) and (d).
133. The residence permit
proper la d of a member State and members of their families who
have the right to stay permanently in the national territory (arts.
11 and 18).
134. Another piece of
legislation (Decree-Law 267/89 of 18 August) deals with the system
of special passports and establishes a new list of persons who are
entitled to such a travel document. It includes to delegates to
the Assembly of the Republic, members of the Council of State, delegates
to the Regional Assemblies, delegates to the Legislative Assembly
of Macau, members of the Advisory Council of Macau and judges of
the higher courts.
2. Right to freedom of thought, conscience
and religion (see document CCPR/C/42/Add.1, paras. 658 to 663).
135. Under the Constitution
of the Republic, as modified by the Amendment Act 1/82, the right
to conscientious objection is guaranteed by law (art. 41, para.
136. Conscientious objection
is thus recognized in a broad sense and is no longer limited to
the military field as in the earlier version of the Constitution.
The new text therefore grants all persons the right to exemption
from obligations and from the performance of acts which are contrary
to their conscience.
137. On the question
of conscientious objection to military service article 276 of the
Constitution provides that:
“4. Conscientious objectors shall perform a civilian
service which is of the same duration as arduous armed military
“5. The civilian service may be established as a substitute
for or to supplement military service and may be made compulsory
by law for citizens not subject to military service.”
138. Act 6/85 of 4 May
endorsed the legal system of conscientious objection, included provisions
on civilian service (art. 4 et seq.) and took account of the conscientious
objector’s interests, capacity for self-denial and literary and
occupational skills (art. 7).
139. According to this
Act, the procedure for obtaining conscientious objector status is
a judicial one, and the initial application must be submitted to
the court in whose jurisdiction the applicant resides.
140. Decree-Law 91-87
of 27 February specifies the fields in which the service must be
performed, its duration, the structure of the civilian service,
the remuneration and social benefits of conscientious objectors,
the objector’s duties and the conditions of travel abroad. In addition,
an Office for the Civilian Service of Conscientious Objectors has
been set up within the Office of the President of the Council of
141. Under article 2
of this Decree-Law, civilian service is to be performed in fields
such as assistance in hospitals or health establishments, the protection
of public health, anti-smoking, anti-alcohol and anti-drug campaigns,
assistance to children, old people and disabled persons and assistance
to populations affected by disasters.
142. These are services
which are useful to society and which may even be performed abroad,
if the conscientious objector is willing.
3. The right of everyone to own property
alone as well as in association with others.
143. Following the second
Amendment Act, Part II of the Constitution, dealing with economic
organization, has undergone considerable changes.
144. In the chapter
on fundamental principles (art. 80), a number of changes have been
made in connection with the right to own property. The amended text
provides that the economy and society shall be organized in accordance
with the following principles:
“(b) Coexistence of the public sector and the co-operative
and social sector in the ownership of the means of production;
(c) Collective appropriation of the means of production,
of land and of the natural resources, in accordance with the public
(e) Protection of the co-operative and social sector
of ownership of the means of production.”
145. In addressing the
priorities of the State in this area, in article 81, the Constitution
recognizes the need (para. (e)): “to eliminate and prevent the formation
of private monopolies and to check the abuses of economic power
and all practices which may harm the general interest”. In addition,
the need is recognized (para. (h)) to “do away with large estates
(latifundia) and develop smallholdings (minifundi)”.
146. Article 82, which
deals with the sectors of ownership of the means of production,
“1. The coexistence of three sectors of ownership of
the means of production is guaranteed.
2. The public sector is constituted by the means of
production of which the ownership and management devolve upon the
State or other public bodies.
3. The private sector is constituted by the means of
production of which the ownership and management devolve upon individuals
or bodies corporate under private law, subject to the provisions
of the following paragraph.
4. The co-operative and social sector specifically
(a) means of production help and managed by co-operatives,
in conformity with co-operative principles;
(b) collective means of production held and managed
by local communities;
(c) means of production that are operated collectively
by the workers.”
147. On the question
of collective appropriation article 83 provides that “the law shall
determine the methods and forms of collective intervention and appropriation
of the means of production and of land, as well as the criteria
for calculating compensation”.
E. Economic, social and
148. The Constitutional
Amendment Act introduced changes in the section on economic, social
and cultural rights. Article 9, on the basic tasks of the State,
identifies as being of high priority:
“(d) Promotion of the well-being and quality of life
of the people and genuine equality among as well as the effective
realization of economic, rights, through transformation and modernization
of the and social structures;
(e) Protection and fostering of the cultural heritage
of the Portuguese people, protection of nature and the environment,
conservation of natural resources and ensuring appropriate land
(f) Provision of education and continuing education
and defense of the use and promotion of the international dissemination
of the Portuguese language.”
149. With regard to
the right to health, the Constitution, as amended, provides that
the realization of this right shall be ensured (art. 64):
“(a) by the operation of a universal and general national
health service which provides care that is generally free of charge,
depending, however, on individual economic and social circumstances;
(b) by the creation of economic, social and cultural
conditions which ensure the protection of children, young people
and the elderly, by the systematic improvement of conditions of
working conditions, by the encouragement of physical culture and
sports in schools and among the general population and by the development
of national health education;
(c) by directing its activity towards the socialization
of the cost of medical care and medicines.”
150. In the section
on youth, the Constitution has also undergone some amendments. Article
70 states that:
“1. Young people, particularly those at work, shall
receive special protection to ensure effective realization of their
economic, social and cultural rights:
(a) in education, vocational training and culture;
(b) in access to initial employment, at work and in
(c) in physical education and sports;
(d) in leisure time activities.
2. The prime objectives of youth policy shall be to
develop the personality of young people and to create conditions
for their effective integration into active life, a taste for free
creation and a sense of service to the community.
3. The State, in conjunction with families, schools,
enterprises, local residents’ committees, cultural associations
and foundations and recreational bodies, shall encourage and support
youth organizations in the pursuit of these aims, and in all forms
of international exchange among young people.”
151. In the section
on culture, the Amendment Act has modified article 73, which now
“The State shall promote the democratization of culture
by encouraging and ensuring access by all citizens to the enjoyment
of culture and cultural creation, in collaboration with the mass
media, cultural associations and foundations, recreational bodies,
associations for the protection of the cultural heritage, local
residents’ associations and other cultural groups.”
152. With regard to
education, article 74 now provides, in paragraph 2, that:
“Education should contribute to overcoming economic,
social and cultural inequalities, to enabling citizens to participate
democratically in a free society and to promoting mutual understanding,
tolerance and a spirit of solidarity.”
153. Paragraph 4, demonstrating
concern about child labour, a phenomenon which particularly affects
northern Portugal, states that:
“The law shall prohibit work by minors of school
In this connection, it should be borne in mind
that compulsory schooling comprises nine years of education or ends
at the age of 15 (Outline Law of 1986 on the education system).
154. Article 76 on access
to higher education reaffirms the principle of equality of opportunity
and the democratization of education. It provides that:
“The system of access to university and other higher
education institutions shall ensure equality of opportunity and
the democratization of education, having due regard to Portugal’s
need for skilled senior personnel and for the attainment of a higher
level in the fields of education, culture and science.”
155. Lastly, article
79, on physical education and sport, reflects the concern to help
prevent violence in sport; this concern has led to the adoption
of further internal legislation (Decree-Law 270/89 of 18 August)
and to the ratification by Portugal of the Council of Europe Convention
on this subject (adopted by Assembly of the Republic Resolution
11/87 of 10 March).
6. Student associations
156. By an act of 1987
(Act 33/87 of 11 July), the Assembly of the Republic introduced
legislation on students’ associations, granting them a set of rights
and benefits designed to defend the interests of the students in
their school life and in society.
157. These associations
are free to draw up their own statutes and internal rules, elect
their leaders and conduct their own affairs.
158. They are independent
of the State, of political parties, of religious organizations and
of all other organizations.
159. The associations
have the right to air time on radio and television.
160. The associations
have the right to take part in school life, including the determination
of education policy. They even have the right to give opinions on
the drafting of legislation in the educational sphere.
7. Legal status and social protection of
161. 161 Government
has shown the importance it attaches to the development and improvement
of systems for providing help to persons and families in an isolated,
dependent or underprivileged situation, particularly the elderly
and the disabled, by giving official status to “home helpers” under
Decree-Law 141/89 of 28 April.
162. According to article
2, home helpers, are persons who provide in the homes services which
are essential for normal family life, where such services cannot
be provided by family members.
163. Home helpers must
help with the preparation of meals, the laundering of clothes and
the personal hygiene and comfort of the persons helped. They must
accompany them when they go anywhere, and in their work ensure that
the situations of isolation and solitude are transcended (art. 4).
164. Certain requirements
must be met to become a “home helper”, namely:
(a) Candidates must be 18 years of age or over
and be in suitable physical and mental health;
(b) They must have completed their compulsory
(c) They must be mature, have a sense of responsibility
and be interested in this work;
(d) They must be capable of developing family
support functions so as to stimulate the activities of the assisted
persons or families.
165. In the selection
of home helpers, account is also taken of experience in the sphere
of social work and appropriate training, as well as proximity to
the home of the assisted persons. (art. 6).
8. System of social support services in juvenile
and family courts and in specialized courts of mixed jurisdiction
166. Decree-Law 222/89
of 5 July revised the system of social support services and provided
for creation of the position of vocational adviser, to be recruited
from among psychologists, social service technical experts or school
and social guidance workers.
167. The social support
service is responsible for carrying out the measures which a magistrate
or juvenile court magistrate (Curador) deems necessary for disposition
of a case and for the execution of measures ordered, as well as
for the preparation of reports, the reception of users and their
transmission to the Minors Department.
9. National Council of Ethics for Life Sciences
168. Quite recently,
the Assembly of the Republic set up (Act 40/90 of 9 June) a National
Council of Ethics for Life Sciences, an independent body with special
(a) Systematically evaluating the moral problems
arising from scientific progress in the spheres of biology, medicine
or health in general, and giving opinions on them;
(b) Submitting annually to the Prime Minister
a progress report on the application of new technologies to human
life and their respective ethical and social implications, and making
any necessary recommendations.
169. The Council is
composed of 21 members of recognized competence in the sphere of
the human and social sciences, medicine and biology, and representing
the main ethical and religious currents of thinking.
170. Article 6 of the
Convention was commented on in the two previous reports submitted
by Portugal (for the second report see document CERD/C/126/Add.3,
paras. 144-161). The following is a brief review of measures that
have since been taken in connection with the implementation of this
171. The 1989 amending
Act introduced certain changes in the Constitution.
172. In our observations
relating to article 5, paragraph (a), reference was made to several
provisions, including article 20 on access to the law and recourse
to the courts, article 23 on the Provedor de Justiça (Ombudsman)
and article 52 on the right of petition.
173. On administrative
liability, a question also dealt with in connection with article
5, paragraph (a), the present report makes reference to articles
266 and Attention is drawn to paragraph 4 of the latter article
which recognizes the right of everyone to seek legal remedy for
any type of administrative action that prejudices his rights or
his interests, that are protected by law.
174. Attention is also
drawn to the content of article 22 of the Constitution which establishes
the civil liability of the State and other public bodies for any
actions or omissions in the exercise of their functions or caused
by such exercise which result in violations of rights, freedoms
or safeguards of citizens or in damage to another party.
175. It is also necessary
to mention article 271, in view of the modification of that article
by the Constitutional Amendment Act.
176. This article relates
to the liability of State officials and employees. In its new wording,
paragraph 1 provides as follows:
“Officials and employees of the State and of other
public bodies shall be liable to civil, criminal or disciplinary
proceedings in respect of actions or omissions in the exercise of
their functions or caused by such exercise which result in infringement
of those rights or interests of the individual that are protected
by law; the taking of action or proceedings against such an employee
shall in no case be subject to approval by a higher authority.”
(The underlining is ours and identifies the
new parts of this paragraph).
177. In this connection
it is important to note what was previously stated concerning criminal
acts of public officials, specifically acts in violation of the
Constitution of the Republic, acts prejudicial to the rule of law
and denial of justice.
178. The Assembly of
the Republic has approved a new organic law on courts of law (Act
38/87 of 23 December).
(a) This text, reaffirming the principles laid
down in the Constitution, defines the courts as independent organs
with competence to administer justice in the name of the people.
It recognizes their purpose to be the defense of rights and interests
protected by law, the repression of any violation of democratic
legality and the settlement of conflicts of public or private interests.
(b) The courts are independent and subject only
to the law and their decisions are binding on all public and private
entities and prevail over those of any other authority.
(c) The Act defines the Office of the Government
Procurator as the State organ responsible for representing the State,
instituting criminal proceedings, defending democratic legality
and promoting furtherance of the interests established by law.
(d) The Act provides for the use of computerized
systems for the processing of information relating to administration
of the courts and the conduct of proceedings under the constitutional
and legal provisions in force.
179. The previous reports
also made reference to recourse to international instances, the
Human Rights Committee of the United Nations and the instances established
by the European Convention on Human Rights.
180. With Portugal’s
ratification, on 9 February 1989, of the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment and its recognition of the competence of the Committee
under article 22, a new safeguard has been established against violation
of a fundamental right. Any person under Portugal’s jurisdiction
may thus submit to this Committee a communication claiming that
he has suffered an act of torture.
181. By an order made
in April, the Minister of Justice launched a program entitled “The
Citizen and Justice” which aims to establish closer links between
citizens — who are entitled to justice — and the public system for
the administration of justice.
182. This program is
designed to increase citizens’ understanding of this system and
to facilitate their access to and their participation in it. It
will therefore include information campaigns, propose methods for
increasing the efficiency of the services concerned and create opportunities
for organized community action.
183. As was mentioned
in the previous reports, the Constitution of the Republic recognizes
the right to education and the right to culture as fundamental rights
of the individual and shows a continuing concern to contribute to
the democratization of these rights.
184. Article 73, paragraph
2, deals with the democratization of education, to be achieved by
schools and by other training methods. Paragraph 3 of the article
is concerned with the objective of democratizing culture.
185. It should also
be noted that article 2 of the Constitution, as modified by the
1989 amendment, establishes as an objective of the Portuguese Republic
the achievement of economic, social and cultural democracy and the
strengthening of participatory democracy.
186. The Constitution
recognizes that education must contribute to the elimination of
economic, social and cultural inequality, enabling citizens to participate
democratically in a free society and promoting mutual understanding,
tolerance and a spirit of solidarity (art. 74, para. 2).
187. The outline law
on the educational system (Act 46/86 of 14 October) provides, in
the spirit of article 7 of the International Convention on the Elimination
of All Forms of Racial Discrimination, that the educational system
shall be the means for giving effect to the right to education.
This right is guaranteed by continuing educational efforts designed
to contribute to the development of the personality, to social progress
and to the democratization of society, to contribute to the development
of citizens who are free, responsible, independent and imbued with
solidarity, and to enhance the human dimension of work.
188. The democratization
of education is to be secured by achieving fair and effective equality
of access to schooling and equal opportunity for school achievement
(art. 2, para. 2) through the adoption of structures and procedures
for participation in determining educational policy (art. 3, para.
189. The educational
system covers all Portuguese territory, but must be sufficiently
flexible and diversified to extend to the generality of countries
and localities in which Portuguese communities reside and where
there is found to be a marked interest in the development and dissemination
of Portuguese culture.
190. The purpose of
education is to promote the development of a democratic and pluralist
attitude that is respectful of others and of their ideas and is
open to dialogue and to the free exchange of opinions, so as to
develop citizens capable of evaluating their social environment
in a critical and creative spirit and undertaking its gradual transformation
(art. 2, para. 5).
191. This outline law
defines the objectives of the educational system, of which the following
may be mentioned (art. 3):
(a) To contribute to the defense of the national
identity and to strengthen fidelity to Portugal’s historical traditions,
through development of awareness of the Portuguese cultural heritage
within the context of the European universalist tradition and of
the increasing interdependence of the world’s peoples and the need
for international solidarity;
(b) To ensure the right to be different, through
respect for individuals and individual aims, as well as study and
appreciation of the knowledge and culture of different peoples;
(c) To develop the capacity to work and to offer,
on the basis of a sound general training, specific instruction that
will ensure for everyone his fair place in an active existence,
enabling him to contribute to the progress of society, in accordance
with his interests, his capacities and his choice of occupation;
(d) To help to rectify any inequalities in regional
and local development by encouraging, in all areas of the country,
equality of access to the benefits of education, culture and science;
(e) To ensure equality of opportunity for both
sexes, through co-education and school and vocational guidance and
to develop the necessary awareness among all those taking part in
the educational process;
(f) To ensure a second educational opportunity
for those who were unable to benefit from education at the usual
age and for those who turn to the educational system for reasons
connected with their occupation or for cultural enrichment.
192. With regard to
the participation of women in education, some figures are worth
(a) In 1986/87, the female attendance rate in
higher education was 53 per cent, in secondary education 55 per
cent and in basic (compulsory) education 54 per cent;
(b) In 1985/86, 57.7 per cent of the students
who had completed their masters course were females;
(c) Females constituted 27.4 per cent of the
teachers in higher education, 46.6 per cent in secondary education
and 80 per cent in primary education.
193. The adult literacy
and basic education policy is defined in the National Plan (PNAEBA)
to which reference was made in the previous report submitted by
Portugal (see document CERD/C/126/Add.3, paras. 171 et seq.).
194. The outline law
on the educational system provides for continuing education for
the benefit of those who are not of primary or secondary school
age, namely those over the age of 15 years for primary education
and 18 years for secondary education.
195. Instruction by
correspondence is provided for as an alternative to in-school education
196. Finally, out-of-school
education is also provided for as a means of enhancing knowledge
already acquired and making good deficiencies in training (art.
197. In accordance with
the outline law, the purposes of out-of-school education are:
(a) To eliminate illiteracy, including functional
(b) To contribute towards ensuring practical
equality of educational and occupational opportunity for those who
did not attend the regular educational establishments or left them
(c) To encourage solidarity and participation
in the life of the community.
198. In order to combat
the existing illiteracy, which is below 16 per cent, several training
measures have been carried out for the benefit of the illiterate
or semi-literate population. These include, in addition to instruction
in written communication, basic training in matters closely connected
with daily life. Between 1984 and 1987 approximately 5,200 courses
were held in which over 63,000 persons participated. There has recently
been an increase in the participation of young people in these courses,
especially of those between the ages of 15 and 19 years. More than
45 per cent of the participants were over the age of 40.
199. The objective of
special education is to ensure the rehabilitation and the social
and educational integration of persons who have specific difficulties
due to physical or mental handicap. It includes activities for students,
families, educators and communities (art. 17).
200. With regard to
Portuguese educational activity abroad, the outline law entrusts
the State with the responsibility of promoting the teaching and
study of the Portuguese language and Portuguese culture.
201. Several measures
are provided for, such as inclusion of the study of the Portuguese
language and Portuguese culture in the curricula of other countries
and the establishment and support of Portuguese assistantships at
202. A particularly
important measure has been the establishment of Portuguese schools
in countries which have Portuguese as their official language and
in Portuguese migrant worker communities. For the benefit of the
latter, provision is made for courses and training activities integrated
in or as a supplement to the educational systems of the host countries.
203. With regard to
culture, reference may be made to:
(a) Fellowships for participation in seminars
on the social and economic situation in Portugal and for carrying
out research on emigration and on Portuguese communities;
(b) Support for action undertaken by groups,
associations and media abroad, either in the form of grants or through
provision of written or audio-visual materials or of sports, musical
or theatrical equipment;
(c) The provision of video equipment to television
associations and departments for the dissemination of films and
reportages on Portugal;
(d) Support for Portuguese publications abroad
and co-operation in the holding of Portuguese cultural events and
exhibitions in host countries.
204. Portugal has already
signed bilateral agreements on the teaching of Portuguese with the
following countries: France, Federal Republic of Germany, Belgium,
Luxembourg and Spain. All these agreements are based on three fundamental
(a) The need to guarantee the right to education
of Portuguese children under conditions of equality of opportunity
with local children;
(b) This right implies preservation of the language
and culture of the children’s parents;
(c) The education provided must be such that
the children’s studies will be recognized if the children return
205. The importance
attached to the teaching of Portuguese has been reaffirmed by a
number of legislative measures. Some examples which may be mentioned
(a) The outline law on the teaching of Portuguese
abroad, the aim of which is to secure the inclusion of the Portuguese
language and Portuguese history, geography and culture in the curricula
of host countries;
(b) Decree-law 519-E/79, which established regulations
covering Portuguese teachers abroad;
(c) The granting of official status to Portuguese
instruction courses abroad;
(d) The action to ensure overall co-ordination
of the teaching of Portuguese in Germany and in France, where the
largest Portuguese communities abroad reside;
(e) Various measures relating to the recruitment
of Portuguese teachers for work abroad where, in addition to the
need to ensure teaching of high quality, it is desirable to avoid
keeping teachers who have long been expatriate immersed in a culture
which is not their own so that they have difficulty in imparting
up-to-date and correct knowledge of the present situation in Portugal.
206. It is also necessary
to mention the Department of Basic and Secondary Education Abroad
that has been set up in the Ministry of Education. This Department
plans, recommends and implements policies in this field, recruits
teachers and co-ordinates their work, concludes necessary bilateral
agreements and provides financial and pedagogic support for classes
organized by Portuguese communities abroad.
207. During the year
1984/1985, 2,704 classes were held for some 70,000 students in France,
Spain, Sweden and The Netherlands. The largest number of participants
was in France.
208. In conclusion,
reference must be made to the importance the Portuguese Government
attaches to realization of the rights of migrant workers. This has
led it to ratify, in 1978, the Council of Europe’s Convention on
the Legal Status of Migrant Workers, on the implementation of which
it submits regular reports. In. the same spirit, it is participating
in the work at the United Nations to prepare a convention on this
209. The Government’s
interest in this subject led it to hold at Funchal, in 1983, in
collaboration with the Council of Europe, a symposium on the human
rights of foreigners in Europe. The conclusions of this symposium
still constitute a reference document for the Council’s work.
1. Education for gypsies
210. Under the Constitution,
everyone has the right to education, with equal access to schooling
and equal opportunity for school achievement. This naturally means
that all groups in the population shall have the same opportunities,
no difference in treatment being allowed. This is also a requirement
under the Convention on Combating Discrimination in Education, which
Portugal has ratified.
211. Education in Portugal
also observes the principle of promotion of a democratic and pluralist
spirit, respectful of others and of their opinions, within the framework
of the European universalist tradition and the growing interdependence
and solidarity among all the world’s peoples.
212. With these principles
in mind, the Portuguese authorities have sought to encourage access
to education for the most economically and socially disadvantaged,
special attention being paid to gipsy children.
213. Measures have been
taken to overcome the greater difficulties experienced by such children
because of the nomadic life of the gipsy population and their lack
of a fixed place of abode. Special measures have been taken to provide
schooling for gipsy children, particularly at the basic level, by
providing classes for them and ensuring that the necessary teachers
are trained. In practice, it is the younger gipsy children who have
the highest school attendance rate.
214. According to a
non-official source connected with gipsy institutions in Portugal,
more than 60 per cent of the gipsy children under the age of 14
do not attend school. Only three gypsies have attended university.
215. According to the
same source, the action and information plan undertaken by the Ministry
of Education, particularly at the primary education level, constitutes
a major step in ensuring the schooling of gipsy children.
216. It is recognized
that it will be important to ensure the motivation of the gipsy
families so that they follow their children’s schooling in a responsible
manner. The Ministry of Education is currently taking action to
this end, with the support of social solidarity institutions such
as the Misericórdias.
217. In this area we
are closely following the resolution of the Council of Ministers
of Education of the European communities, which, in May 1990, suggested
the adoption of several measures to ensure the schooling of gipsy
children. We refer in particular to those concerning the reception
of such children in schools, support for teachers and for gipsy
families and the study of gipsy history and culture.
2. The National Commission for UNESCO
218. Decree-law 103/89
of 30 March 1990 provided for the reorganization of the National
Commission for UNESCO. Under its statutes, the Commission has to
pursue the aims set out in the constituent instrument of UNESCO
and, in particular:
(a) To give opinions and make suggestions to
the Government concerning the programs and achievements of UNESCO;
(b) To support the Portuguese Mission to UNESCO
and Portuguese delegations to meetings of the organization;
(c) To further the efforts of the departments
and sectors of activity represented in the Commission, and to establish
close co-operation with them;
(d) To provide information on the activities
(e) To carry out the activities specified by
the Government in the field of activity of UNESCO.
219. The National Commission
for UNESCO has a varied membership which includes, for example,
representatives of departments working in the field of activity
of UNESCO, universities, scientific institutions and non-governmental
B. Promotion of human rights
220. Substantial progress
has already been made in spreading knowledge of human rights. In
order to develop awareness in this field and bring about effective
enjoyment of human rights, we consider it essential to ensure systematic,
up-to-date and accessible information.
221. In the Ministry
of Justice, the Office of Documentation and Comparative Law has
set up a documents centre specializing in human rights, which receives,
processes and distributes the most significant works on this subject
and the most important texts adopted in the international organizations.
222. One of its major
activities is their distribution to the various Law Reform Committees.
223. The Ministry of
Justice has since 1980 been publishing a Bulletin of Documentation
and Comparative Law which is intended to inform and create awareness
among jurists concerning community, international foreign and comparative
law. The Bulletin always includes a chapter on human rights.
224. This publication
reports on the jurisprudence of the Strasbourg instances, the Inter-American
Court of Human Rights and the Human Rights Committee (e.g. the decisions
in the A.M. v. Denmark and Duilio Fanali v. Italy cases), publishes
articles on the activity of these bodies and Portuguese translations
of the most recent texts approved or about to be adopted. The next
issue will include, for example, the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment
and the Convention on the Rights of the Child.
225. Also in this sphere,
the fortieth anniversary of the Universal Declaration was marked
by commemorative activities, in particular, the publication in Portuguese
of a compilation of international human rights instruments, prepared
in collaboration with the United Nations Centre in Portugal.
226. This compilation,
which includes the most important conventions, has been sent to
the Portuguese-speaking countries and has been given wide distribution
by schools in Portugal.
227. Lastly, mention
should be made of the radio programs broadcast by the Office of
the Ombudsman in order to make the general public fully aware of
the fundamental rights of individuals.
3. Teaching of human rights
228. Selected human
rights problems are studied at various levels of formal education,
in history, philosophy, political science, sociology and the Portuguese
language. Some schools have even organized exhibitions, debates
and meetings, which have been largely attended.
229. In the universities,
extension of curricula now permits study of the systems for the
international protection of human rights.
230. Reference has already
been made to the training of teachers. Some information is given
below on the training of judges and police officials.
231. The Portuguese
College of Magistrates has since its foundation provided training
in fundamental rights and the international system for their protection.
This helps to develop in magistrates an awareness of the value and
importance of international law in this sphere, through study of
the principal texts in force in Portugal. in view of its regional
nature, the European Convention has an important place here.
232. The College and
its students participate in a number of scientific and cultural
activities connected with the promotion of international law and
knowledge of the activities of the international organizations.
For example, a seminar was held on the Convention on the Rights
of the Child mentioned earlier.
233. It is important
to note that the Bar has taken a part in these activities through
the training it provides for young lawyers; the latter are required
to complete a course of training before they can perform their professional
duties to the full.
234. The training of
teachers is naturally of particular importance and there is increasing
attendance of the classes of the Institut René Cassin at Strasbourg,
and those organized by L’école Instrument de Paix, a non-governmental
organization in consultative status with the United Nations.
235. In late 1988, the
Portuguese Government, recognizing the importance of human rights
teaching, set up a Commission to promote human rights and combat
inequalities in education, expressly responsible ‘for studying the
multi-disciplinary nature of this approach and recommending steps
to be taken to strengthen its study and increase awareness on the
part of teachers and pupils (Order 195/ME/88, of 12 December).
236. Portugal is conscious
of the importance of training in the prevention of human rights
violations and has for some years been providing systematic training
in a number of professions whose activity is basic to the realization
of fundamental rights, freedoms and guarantees.
237. For example, the
knowledge imparted to these professions regarding recourse to international
bodies - such as the Strasbourg instances and the Human Rights Committee
— is of vital importance to them.
5. Police officials
238. Following the changes
introduced in 1985 in the regulations governing the police forces,
to which reference has already been made, the recruitment and training
of officers in the various branches of the police has undergone
a major change, particularly in the area of public relations and
fundamental rights, guarantees and freedoms.
239. As regards relations
with the public, all police officers now carry a code of conduct
which, while stressing the objectives of police action, namely,
defense of democratic legality and the fundamental rights of citizens,
also lays down standards of courtesy towards the public and establishes
a code of personal behaviour.
240. The code states
that police action must be carried out impartially and with respect
for fundamental rights and freedoms, within the limits established
by the law and without recourse to unlawful or manifestly excessive
241. The training of
police officers, which differs according to grade, always includes
a large section on rights, freedoms and guarantees, either in the
basic training or in continuing training.
242. The classes cover,
in addition to the historical development of human rights, the universal
nature of those rights, non-discrimination, legal information and
protection, the activities of the Provedor de Justiça (the Ombudsman)
and those of the courts. Considerable attention is paid, moreover,
to study of the regional and universal systems for the protection
of human rights.
243. The Universal Declaration
of Human Rights, the Covenants, the United Nations and the Council
of Europe Conventions against torture, and the European conventions
concerning the use of firearms and concerning violent demonstrations
at sports events, now in force in our domestic law, are currently
244. It is worth pointing
out that even in the case of private security personnel (permitted
under Decree-Law 282/86, 5 September), selection and recruitment
must take account of awareness of fundamental rights, freedoms and
guarantees and of the related obligations.
245. With reference
to other professional categories, attention is drawn to the fact
that the principal international texts are distributed in Portuguese
to personnel of the prison services, particularly the Code of Conduct
for Law Enforcement Officials, the Principles of Medical Ethics,
the Standard Minimum Rules for the Treatment of Prisoners and the
recently adopted European prison rules.
246. Lastly, the Physicians’
Deontological Code, which establishes principles with regard to
the use of torture, as the report mentions in connection with article
7 of the Covenant, also reflects the importance that is attached
to training and professional activity. The Code even requires refusal
to give up premises, instruments or medicines or to transmit scientific
knowledge which would permit recourse to violence.
C. Culture and the information media
247. The Government
program submitted to the Assembly of the Republic and adopted by
a majority reasserts in its chapter on culture the principle of
access by all Portuguese citizens to culture and the State’s duty
to promote culture in its development strategy and enjoyment of
conditions and structures which will afford creative artists the
necessary means of expression within the framework of the Constitution.
248. Certain measures
to this end are called for. These include the following:
(a) Integration of culture and the arts in school
curricula and co-operation with television in producing programs
and broadcasting cultural events;
(b) Safeguarding and fostering the cultural
heritage, as a right and duty of citizens. This involves organized
co-operation between citizens and institutions and combined efforts
on the part of central Government and local authorities;
(c) Encouragement of cultural exchanges in order
to emphasize Portugal’s presence in the world and enrich Portuguese
cultural values in the constant encounter with other countries;
(d) Strengthening of cultural relations with
the EEC countries, Brazil and the Portuguese-speaking countries
249. In the sphere of
social communication, the Constitutional Amendment Act introduced
some important changes which are worth noting. Paragraph 2 of article
38 on freedom of the press and information media, has been amended:
(a) This paragraph now reads as follows:
“2. Freedom of the press shall signify:
(a) Freedom of expression and creation for journalists
and literary contributors, and a place for the former in the editorial
orientation of public information media, unless they belong to the
State or are of a doctrinaire or confessional nature.”
(b) and (c) correspond to paragraphs 3 and
4 of the earlier text.
250. The new paragraphs
3, 4, 5 and 6 now provide as follows:
“3. The law shall generally ensure that the ownership
and the means of financing of the public information media are disclosed.
4. The State shall ensure the freedom and independence
of the information media vis-à-vis those possessing political or
economic power, by imposing the principle of specificity of the
enterprises owning general information media, treating them and
supporting them in non-discriminatory fashion and preventing their
concentration, particularly through multiple or interlocking shareholdings.”
This report contains the third and fourth
periodic reports, which were scheduled to be submitted on 23 September
1987 and 23 September 1989 respectively.
For the initial and second periodic reports
submitted by the Government of Portugal, and the summary records
of meetings at which those reports were considered, see:
Initial report — CERD/C/101/Add. 8 (CERD/C/SR.727,
728 and 730);
Second periodic report — CERD/C/126/Add. 3
(CERD/C/SR.820 and 822).