|
Relatórios
Apresentados por Portugal aos Órgãos de Controlo da
Aplicação dos Tratados das Nações Unidas
em Matéria de Direitos Humanos
Second periodic reports of States parties
due in 1994 : Portugal. 20/06/97. CAT/C/25/Add.10. (State Party
Report) COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS
SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Second periodic reports of States parties due
in 1994
Addendum
PORTUGAL*
* The initial report submitted by the Government
of Portugal is contained in document CAT/C/9/Add.15; for its consideration
by the Committee, see document CAT/C/SR.166 and 167 and the Official
Records of the General Assembly, Forty-ninth session, Supplement
No. 44 (A/49/44, paras. 106 to 117.
[7 November 1996]
Introduction
1. Following the submission of Portugal's first
report on the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, the Committee against Torture
made a number of observations and recommendations. This document
was closely studied by the Portuguese authorities and was among
the documents taken into account in the drafting of the new Penal
Code.
2. Thus the Penal Code has been revised to
include new types of offences in particular those deriving from
international commitments binding on Portugal. The category of crimes
against humanity now includes acts of torture and other cruel, inhuman
and degrading treatment or punishment, classified according to the
degree of gravity, and failure to report a crime on the part of
a superior.
3. New legislation has also been enacted in
areas covered by the Convention against Torture, among which mention
should be made of the amendments to the Police Force Organization
Act, bringing it into line with the principles contained in the
Penal Code and Code of Criminal Procedure and establishing an agency
to monitor and supervise the work of the police force as it affects
citizens' fundamental rights and freedoms. These measures will be
described in this report.
4. Portugal signed the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment on
4 February 1985; the Convention entered into force for Portugal
on 11 March 1989, after its adoption by the Assembly of the Republic
in resolution 11/88 of 1 March 1988.
5. Portugal's first report to the Committee
against Torture covered the period from 11 March 1989 to 31 March
1992, and was submitted in conformity with the provisions of article
19, paragraph 1 of the Convention.
6. This report covers the period from 31 March
1992 through 31 March 1996, and has been submitted in conformity
with the provisions of article 19, paragraph 1, of the Convention
and with the guidelines adopted by the Committee against Torture
at its 85th meeting.
7. Portugal also submitted, on 11 January 1993,
the core document forming part of the reports of States parties
(HRI/CORE/1/Add.20), which contains the general political and legal
framework for the protection and promotion of human rights in Portugal,
including the role of the public administration and national institutions
responsible for ensuring observance of human rights and conducting
human rights information, education and training activities.
8. No significant changes were made in the
general legal framework during the period under review and the initial
report (CAT/C/9/Add.15 of 4 June 1993 - general legal framework,
paras. 7-46) is still valid. The specific legislative changes made
during the period covered by this report will be discussed in connection
with the relevant articles.
9. One very important change, however, is the
recent publication of Decree-Law No. 48/95 of 15 March 1995, adopting
the new Penal Code, which entered into force on 1 October 1995.
The new Code contains a new legal definition criminalizing torture
and other cruel, inhuman or degrading treatment or punishment (arts.
243 and 244). This subject will be discussed at greater length in
connection with article 4 (see paras. 130 to 145 of this report).
10. It should also be noted that Portugal has
been a party to the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment since 29 March
1990, which confirms its commitment to combating torture. In this
context, the Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment visited Portugal from 19 to
27 January 1992 pursuant to article 7 of the Convention. The Portuguese
Government authorized the publication of the report prepared following
this first visit by the European Committee.
11. In May 1995, the Committee made a second
visit to Portugal, at which time it visited the prisons, police
premises and juvenile centres.
12. The Portuguese Government's comments on
the European Committee's first report describe the efforts made
to improve conditions of detention in prisons. These efforts are
reflected in the measures described in paragraphs 122 to 133 of
this report.
13. In terms of international cooperation,
Portugal has recently ratified several international instruments
on judicial cooperation between States in criminal matters, at both
the regional and multilateral levels:
(a) European Convention on the Transfer of
Sentenced Persons - adopted by the Assembly of the Republic in resolution
8/93 of 18 February and ratified by Presidential Decree No. 8/93
of 24 March 1993 - which entered into force for Portugal on 1 October
1993;
(b) United Nations Convention for the Suppression
of the Traffic in Persons and of the Exploitation of the Prostitution
of Others - adopted by the Assembly of the Republic in resolution
31/91 of 6 June 1991 and ratified by Presidential Decree No. 48/91
of 10 October 1991 - which entered into force for Portugal on 29
December 1992;
(c) European Convention on Mutual Assistance
in Criminal Matters -adopted by the Assembly of the Republic in
resolution 39/94 of 17 March 1994 and ratified by Presidential Decree
No. 56/94 of 1 June 1994 - which entered into force for Portugal
on 26 December 1994;
(d) Additional Protocol to the European Convention
on Mutual Assistance in Criminal Matters - adopted by the Assembly
of the Republic in resolution 49/94 of 17 March 1994 and ratified
by Presidential Decree No. 64/94 of 1 June 1994 - which entered
into force for Portugal on 27 April 1995;
(e) European Convention on the Supervision
of Conditionally Sentenced or Conditionally Released Offenders -
adopted by the Assembly of the Republic in resolution 50/94 of 3
March 1994 and ratified by Presidential Decree No. 65/94 of 1 June
1994 - which entered into force for Portugal on 17 February 1995;
(f) Convention of the Member States of the
European Communities on the implementation of the principle "non
bis in idem" - adopted by the Assembly of the Republic in resolution
22/95 of 11 April 1995 and ratified by Presidential Decree No. 47/95
of 11 April 1995 - which entered into force for Portugal on 1 January
1996.
14. There is no doubt that the steps taken
by the Portuguese Government to achieve the ratification of such
significant legal instruments in the area of judicial assistance
between States in criminal matters will enhance the authorities'
ability to obtain and provide increased cooperation in criminal
matters, in particular in the specific areas dealt with in this
report.
Information on each of the articles in Part
I of the Convention
Article 1
Definition of torture
15. There has until now been no definition
of torture in Portuguese law. It should be noted, however, that
on account of the value which the Portuguese legal system attaches
to international law, which is considered to be infraconstitutional
but supralegal, the definition given in the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment should be considered as having been incorporated in
Portuguese law upon its entry into force. Under article 8 of the
Constitution:
- "1. The rules and principles of general or ordinary international
law shall be an integral part of Portuguese law.
- 2. The rules laid down in all duly ratified or approved international
conventions shall, immediately on their official publication,
be incorporated into domestic law and shall remain in force as
long as they are internationally binding upon the Portuguese State."
16. In furtherance of Portugal's commitment
to its international obligations, Decree-law No. 48/95 of 15 March
1995, adopting the new Penal Code, introduced such a definition.
In accordance with article 243, paragraph 3, of the Code, torture
or cruel, degrading or inhuman treatment are defined as "acts
inflicting intense physical or psychological suffering or severe
physical or psychological fatigue or involving the use of chemical
substances, drugs or other natural or artificial means, intended
to impair the victim's ability to make decisions or freely express
his will".
17. Article 244 of the Code, entitled "Torture
and other serious cruel, degrading or inhuman treatment" stipulates:
- "1. Under the terms and conditions mentioned in the preceding
article, whosoever:
- (a) Causes serious physical injury to another;
- (b) Uses particularly harsh means and methods of torture, such
as physical abuse, electric shocks, mock executions or hallucinogenic
substances; or
- (c) Habitually commits the acts mentioned in the preceding article;
- shall be liable to a penalty of 3 to 12 years' imprisonment.
- 2. When the acts described in this or the previous article lead
to the victim's suicide or death, the person responsible shall
be liable to a penalty of 8 to 16 years' imprisonment."
18. This provision of the new Penal Code confirms
the importance Portugal attaches to combating torture and cruel,
inhuman or degrading treatment and strengthening the mechanisms
designed to do so.
Article 2
Legislative, administrative,
judicial and other measures
19. For information on the legislative, administrative,
judicial and other measures adopted in Portugal to combat torture,
the reader is referred to paragraphs 7 to 46 and 50 to 116 of the
initial report (CAT/C/9/Add.15 of 4 June 1993), in which the broad
outline of the general legal framework is described.
20. On the basis of this general framework,
a few additional aspects of the situation in Portugal are discussed
below, in particular the legislative, administrative and judicial
measures adopted in the following areas:
(a) Organization of the permanent courts;
(b) Police measures;
(c) Protection of the victims of violent crimes;
- (d) Child victims of violence;
(e) Physicians' Code of Ethics;
(f) Physicians' disciplinary regulations;
(g) Clinical experimentation on individuals;
(h) Clinical testing of medicines;
(i) Removal of organs from dead or living persons;
(j) Regulations governing the non-governmental
organizations working in the field of cooperation for development.
21. Article 18, paragraph 1, of the Constitution
stipulates that the constitutional provisions relating to rights,
freedoms and safeguards shall be directly applicable to and binding
on public and private bodies. The Constitution also establishes
the right to moral and physical integrity of the person as a fundamental
and inviolable right.
22. Article 19, paragraph 6, of the Constitution
stipulates that the declaration of a state of siege or a state of
emergency shall in no circumstances affect the right to life and
physical integrity.
23. This provision served as a basis for establishing
the regime governing states of emergency (National Defence Act -
Act No. 29/82 of 11 December 1982; Basic Civil Protection Act -
Act No. 113/91 of 29 August 1991; Act relating to the regime governing
the state of siege and state of emergency - Act No. 44/86 of 30
September 1986). There have been no changes in the applicable legislation.
Reference is made in this connection to paragraphs 109-115 of the
initial report.
24. The above-mentioned regime is supported
by the provisions in the Penal Code and Code of Criminal Procedure
designating as punishable, and stipulating penalties in respect
of, acts falling within the scope of article 1 of the Convention.
As mentioned earlier (para. 11), upon its ratification the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment was incorporated into Portuguese law pursuant to article
8, paragraph 2, of the Constitution.
Organization of the permanent courts
25. In order to give full effect to the rule
of criminal procedure that every arrested person must be brought
before an examining magistrate as rapidly as possible after arrest,
in order to determine whether the arrest was warranted and in any
event within 48 hours following the arrest (see infra, paras. 149-167),
Decree-Law No. 167/94 of 15 June 1994 relating to the organization
of the judicial courts established rules governing the organization
of the judicial service regarding matters of an urgent nature. It
stipulates that judges of all courts of first instance must establish
a rota in order to provide emergency service during court vacations
(art. 1).
26. Article 2 of the same instrument provides
that certain courts will be open on Saturdays, Sundays and public
holidays, for the purpose of conducting proceedings laid down in
the Code of Criminal Procedure and Minors' Protection Regime as
well as those of an emergency nature.
Police measures
27. With regard to police measures, article
272, paragraph 1, of the Constitution stipulates that the police
shall have the function of defending democratic legality and protecting
internal security and the rights of citizens. The measures taken
by the police shall be those provided for by law and shall not go
beyond what is strictly necessary (para. 2). The prevention of crimes
shall be effected only in a manner which respects the rights, freedoms
and safeguards of the citizens (para. 3).
28. These principles are reflected in the organization
acts of the various police forces.
29. The organizational and statutory regulations
governing the police forces and the gendarmerie have been radically
changed in order to reinforce the prohibition of torture and other
cruel, inhuman or degrading punishment or treatment by imposing
severe disciplinary and penal sanctions on persons committing such
offences.
30. The police forces established by Portuguese
legislation, whose main functions are to protect society and prevent
crime, are the Public Security Police, the National Republican Guard
and the Judicial Police.
31. Both the Public Security Police and the
National Republican Guard come under the Ministry of the Interior.
32. In accordance with the Public Security
Police Organization Act, adopted by Decree-Law No. 321/94 of 29
December 1994, the Public Security Police must perform their duties
in such a way as to maintain public order, security and peace and
prevent crime.
33. It should be noted that the Public Security
Police have exclusive responsibility, throughout the national territory,
for the control of weapons, munitions and explosive substances and
guarantee the personal security of the members of the organs of
supreme authority and high-ranking national and foreign figures.
34. The Public Security Police Organization
Act takes into account the constitutional rule established in article
29 as far as the use of coercive measures are concerned.
35. The Act contains a list of specific cases
in which coercive measures may be used. Under article 9, paragraph
4, of the Act, coercive measures are justified only in situations
involving self-defence or the defence of third parties, when they
prove to be necessary for the purpose of overcoming violent resistance
to the performance of police duties, or in order to preserve the
principle of authority, after a clear order to submit has been given
and all other means have been exhausted.
36. Article 2, paragraph 1 (a) of Decree-Law
No. 231/93 of 26 June 1993 gives the National Republican Guard the
role of guarantor of the exercise of the fundamental rights and
freedoms of citizens and of the normal functioning of democratic
institutions.
37. The regulations governing the National
Republican Guard (a military corps), adopted by Decree-Law No. 265/93
of 31 July, establish the Guard's rights and duties and the principles
it must obey in performing its duties. Article 13 contains a list
of specific cases in which the use of force by members of the Guard
is permitted; they include self-defence or the defence of a third
party or the need to violent resistance to acts performed in the
context of police duties. Under article 14 of the Decree-Law, the
duties of the National Republican Guard are to prevent any attempt
to commit a crime or arrest any person committing a crime.
38. Under conditions similar to those of the
Public Security Police, the National Republican Guard may use coercive
measures only in the situations defined in article 30 of its Organization
Act.
39. The Judicial Police, on the other hand,
is a criminal police body forming part of the justice system. It
is overseen by the Public Prosecutor's Office and is an organ of
the Ministry of Justice. The functions of this police body are to
prevent and investigate crimes. It also works with the judicial
authorities (Public Prosector's Office, examining magistrate and
trial judge).
40. The Judicial Police are responsible for
the prevention of crime, and under article 4 of the Judicial Police
Organization Act, have exclusive competence to investigate various
crimes listed in the article, which are automatically referred to
them. These include crimes against peace and humanity, slavery,
unlawful imprisonment or abduction and hostage-taking.
41. Article 91, paragraph 1 (b), of Decree-Law
No. 295-A/90 of 21 September 1990, which adopted the organizational
regime governing the Judicial Police, stipulates that the special
obligations incumbent on the Judicial Police include refraining
from inflicting torture or inhuman, cruel or degrading treatment
and, if necessary, refusing to execute or disregarding any orders
or instructions to apply such treatment, and refraining from the
use of force beyond that which is strictly necessary for the performance
of a task that is required or authorized by law.
42. Reference should be made to the recent
establishment, within the Ministry of the Interior, of a body for
monitoring and supervising the legality of the police forces' activities,
namely, the Inspectorate-General (Inspecção-Geral
da Administração Interna), which was established by
Decree-Law No. 227/95 of 11 September 1995.
43. The Inspectorate-General, headed by a Deputy
Government Attorney, is a high-level inspection and prosecution
service whose primary role is to monitor legality, protect citizens'
rights and achieve the more effective and prompt administration
of disciplinary measures. One of its functions is to receive complaints
from citizens regarding police excesses and to initiate the necessary
investigatory and disciplinary procedures.
44. In addition to these provisions concerning
the police, other legislation has also been enacted to strengthen,
either directly or indirectly, protection against torture. They
are described below.
Protection of victims of violent crime
45. As stated in Portugal's initial report,
Decree-Law No. 423/91 of 30 October 1991 establishes a legal regime
for the protection of victims of violent crime. Articles 129 and
130 of the new Penal Code stipulate that there shall be special
legislation governing civil liability deriving from a crime and
the compensation of the injured party. This mechanism will be described
further in the section of this report dealing with article 14 of
the Convention (infra, paras. 297 to 317).
46. Mention should also be made of Act No.
61/91 of 13 August 1991, which provides special protection for women
who are victims of violence, through the establishment of a system
of prevention and support for women who are victims of violent crimes,
a telephone hotline, units to deal directly with women within the
various police forces and women's associations for the defence and
protection of women and through the implementation of a system of
appropriate guarantees with a view to ending violence and compensating
for any injury suffered.
47. Several ways for victims of violence to
obtain compensation will be described in the analysis of article
14 of the Convention (see infra, paras. 292 to 313).
48. Among private associations, the Portuguese
Association for the Support of Victims (APAV), a private social
welfare agency whose activities were described in Portugal's initial
report (see para. 83 of document CAT/C/9/Add.15), - is continuing
its activities, and whose goal is:
- "(a) To promote the protection of and support for the victims
of criminal offences generally, and in particular for those in
greatest need, through information, individual attention and guidance
and the provision of moral, social, legal, psychological and financial
assistance;
- (b) To promote and participate in programmes, projects and activities
in the fields of information, training and public consciousness
raising."
49. A high percentage of complaints concern
female victims and relate to crimes involving bodily injury, domestic
violence (not only between husband and wife, but also by drug addicts
against members of their families), theft, rape and homicide.
50. According to available statistical data
provided by APAV, 1,100 victims availed themselves of this form
of assistance in 1994 (604 in Lisbon, 337 in Porto, 42 in Braga,
39 in Coimbra, 59 in Cacais, 3 at the Penafiel hospital and 16 at
the Forensic Medicine Institute), as opposed to 860 in 1993, 443
in 1992 and 188 in 1991.
Child victims of violence
51. It is also worthwhile looking at the measures
now in effect exist for protecting child victims of torture, ill-treatment
and violent crimes, listed in the Penal Code (these will be discussed
in connection with art. 4 -paras. 130 to 145 of this report).
52. The physical and psychological recovery
and social reintegration of children who have been the victims of
negligence, exploitation, ill-treatment or cruel or degrading treatment
is increasingly a question of deep concern to the services and agencies
that work with children and even to public opinion in general. These
situations are being given increasing attention today in order to
ensure their early detection and the provision to children and their
families of the care they need.pp. 11-15 offset.
53. At the official level, both the social
security services and the Ministry of Justice conduct activities
aimed at the physical and psychological recovery of the child victims
of ill-treatment or negligence in cases reported to them which come
within their competence.
54. The health agencies, especially paediatric
departments, have also shown deep concern for the problem of the
ill-treatment of children, with particular attention given to identifying
children in such situations and providing them with immediate care,
often through multidisciplinary teams formed specifically for that
purpose, and to reporting them to the competent administrative or
judicial agencies in order to provide them with effective protection.
55. Mention may be made here of the international
multidisciplinary symposium on stress and violence, held in Lisbon
in September 1995. Its final declaration asserts the priority of
efficient preventive action which, by promoting universal values
of respect for human dignity, priority for children and recognition
of the need to find non-violent solutions to problems, will ensure
an environment without violence for children.
56. The declaration also recognizes the need
to adopt adequate administrative, judicial and rehabilitation measures
in order to study situations of violence affecting children.
57. Other activities are also being pursued
by private agencies. An interesting example is the "SOS for
Children" telephone line established by the Child Support Institute,
which is a telephone service, available daily from 9.30 a.m. to
6.30 p.m., providing support, information and guidance for problem
situations involving children and families in crisis. Its features
are anonymity and confidentiality, and it receives calls from throughout
the country on the most varied situations of children in danger,
such as ill-treatment, sexual abuse or abandonment and neglect.
58. Since 1989, the Institute has also been
conducting a street project involving children at risk or in marginal
situations. It involves an open educational process aimed at providing
support for children in Lisbon who live more or less permanently
on the streets and seeking, together with the children, alternative
lifestyles in order to give them a better future.
59. Other private bodies have established agencies
intended specifically for taking in child victims of ill-treatment
or abandonment, on an emergency basis. One such is the "Children's
Emergency Service", which runs a "refuge" in the
southern part of the country (Faro, Algarve) and provides specialized
medical and psychological care for children, and disabled children
in particular.
60. Another such agency is the Portuguese Association
for Child and Family Law, which, in cooperation with town councils
in the Lisbon area, has established care centres for children in
such situations where multidisciplinary teams (made up, as appropriate,
of paediatricians, child psychiatrists, psychologists, social workers
and lawyers) help children organize their lives so as to rise above
the traumatic situations they have experienced.
61. Recognizing that the phenomenon of the
ill-treatment of children requires interdisciplinary action and
that one of the basic means of protecting child victims of ill-treatment
or neglect is to support their families, the Council of Ministers,
in resolution 30/92 of 18 August 1992, set up the Family and Child
Support Project which is gradually taking shape through the coordinated
efforts of the Minister of Justice, the Minister of Health and the
Minister of Labour and Social Security.
62. This project takes an innovative approach
to the overall problem of the ill-treatment of children, not by
endeavouring to understand the situation of the child victim of
ill-treatment or the adult who ill-treats him in isolation, but
rather by considering the family and social environment of such
children. The project's main goal is thus to identify situations
of children who are ill-treated, diagnose the dysfunctions in the
family which are behind this ill-treatment and take the action required
to put an end to the situation of risk for the child.
63. This goal is achieved through medical,
psychological and educational help and therapy for children who
are the victims of physical or mental violence and the provision
of therapy and psycho-social support for their families in order
to help them to become organized and to develop so that they are
able to undertake their tasks as parents with an increasing sense
of responsibility and affection.
64. The Family and Child Support Project is
initially to be implemented in Lisbon, Porto (north) and Coimbra
(centre). Subsequently, it is intended to extend it to the regions
of Evora and Faro (south), so that it will cover the five health
regions Portugal has recently created.
65. As part of this project, an emergency line
has been set up for maltreated children, to respond to urgent requests
for help from the children themselves, or from parents, neighbours,
friends, or any other person who knows of a situation in which children
are being ill-treated. According to the statistics obtained, it
is usually neighbours who request help for seven to twelve-year
olds who are the victims of ill-treatment.
The Physicians' Code of Ethics
66. The Physicians' Code of Ethics was drafted
in 1982 by physicians (through the Medical Association, a State-approved
organization).
67. Article 30 of the Physicians' Code of Ethics
establishes their right of conscientious objection, whereby a physician
has the right to refuse to perform any professional act when it
conflicts with his moral, religious or humanitarian beliefs.
68. Article 44 of the Physicians' Code provides
that any physician who has treated a child or an elderly, handicapped
or legally incapacitated person and observes that such a person
has been abused, or subjected to ill-treatment or other form of
cruelty shall take the appropriate measures for their protection
and, in particular, notify the police or the competent social authorities.
69. In chapter II, concerning life and death,
the problems dealt with include:
- Treatment involving the risk of termination of a pregnancy (art.
48);
The duty to refrain from providing useless
treatment (art. 49);
- The decision to put an end to the use of exceptional methods
of prolonging survival artificially (art. 50);
The removal of organs from dead or living persons
(arts. 51 and 52);
Artificial insemination and sterilization (arts.
53 and 54).
70. Paragraph 2 of article 56 lays down the
general principle that it is the duty of the physician always to
respect the well-being and physical integrity of the patient, in
accordance with the Code of Ethics:
- "The physician shall under no circumstances perform, cooperate
in or agree to the perpetration of acts of violence, torture or
other cruel, inhuman or degrading acts, whatever the crime committed
or imputed to the person arrested or detained, and especially
during a state of emergency or a state of war or during a situation
of civil conflict."
71. The Code of Ethics also contains provisions
concerning the refusal of physicians to hand over equipment, instruments
or medicaments, or to transfer their scientific knowledge to enable
torture to be inflicted.
72. Chapter III deals specifically with ill-treatment
of sick persons deprived of their freedom.
73. Chapter IV relates to the problems arising
from experiments on human beings. It lays down safeguards and ethical
restrictions applicable to such experiments.
74. It establishes that testing of new medicaments
or new technologies on human beings may take place only after thorough
testing on animals has shown a reasonable probability of success
and therapeutic safety. It also lays down the essential conditions
of medical vigilance and safeguards regarding the consent of the
patient, his safety and his physical integrity.
Physicians' disciplinary rules
75. Decree-Law No. 217/94, of 20 August 1994,
endorsed the physicians' disciplinary rules. All physicians are
subject to the disciplinary jurisdiction of the Medical Association.
Disciplinary responsibility coexists with all other forms of responsibility
for which the law provides.
76. A physician commits a disciplinary offence
when, as a result of an action or omission, wilfully or through
negligence, he is in breach of one or more of the duties laid down
in the Rules of the Medical Association, the Code of Ethics, the
Disciplinary Rules, internal regulations or other applicable provisions.
77. Disciplinary penalties are listed by type
and include: warning, reprimand, suspension for up to five years
and expulsion. Accessory penalties include the loss of fees and
publication of the penalty.
Removal of organs from dead or living persons
78. The removal or donation of organs or tissues
from dead or living persons, for diagnosis, transplanting or any
other therapeutic purpose, is now regulated by Decree-Law No. 12/93,
of 22 April 1993.
79. It is important to draw attention to the
fact that the removal of matter of human origin may take place only
after the donor and recipient have given their consent freely, clearly
and without ambiguity. The donor shall have the right to nominate
the beneficiary (art. 8).
80. The physician has the duty, however, to
inform the donor and the recipient clearly and intelligibly of the
possible risks and consequences of the donation (art. 7).
81. The removal or donation of human organs
or tissues may take place only as directed and under the responsibility
of a physician and in accordance with the leges artis in a public
or private hospital (art. 3, para. 1 of the Decree-Law). The anonymity
of the donor and the recipient of a human organ or tissue are ensured
by article 4 of the Decree-Law.
82. The same text prohibits the marketing of
human organs or tissues for therapeutic purposes (art. 5).
83. Chapter II deals with the removal of matter
of human origin; such acts, in principle, are permitted only in
the case of regenerating matter. The donation of non-regenerating
organs or matter is authorized only when there is a blood relationship
to the third degree between the donor and the recipient. The donation
of non-regenerating matter by minors or legally incapacitated persons
is not permitted under any circumstances. Similarly, a donation
is not authorized when there is a high degree of probability that
it may entail a serious and permanent diminution of the physical
integrity or health of the donor (art. 6).
84. Chapter III refers to the removal of organs
from dead persons. Article 10 lists as potential post mortem donors
all national or stateless persons or aliens residing in Portugal
who have not expressly informed the Ministry of Health that they
do not wish to be donors. Subsequent to a declaration of this nature,
all non-donors are registered in the National Register of Non-Donors.
85. The determination of death comes within
the competence of the Medical Association following a notification
by the National Council of Ethics for Life Sciences (art. 12). No
physician on the transplant team may be involved in verifying the
death (art. 13, para. 2).
86. The Government is to launch an information
campaign to explain the policy adopted in the Decree-Law and to
provide clarification for any persons who may be interested in declaring
their unavailability for post mortem donations (art. 15).
87. The subsequent Decree-Law No. 244/94, of
26 September 1994, deals with the organization and operation of
the National Register of Non-Donors and the issuance of a personal
card attesting that a person is a "non-donor".
88. Total or partial unwillingness to donate
certain organs or tissues post mortem or allow them to be used for
specific purposes should be expressed by the persons concerned to
the Ministry of Health by registration in the National Register
of Non-Donors.
89. The National Register of Non-Donors is
to compile a computerized file to include all statements of wishes
by nationals, stateless persons and aliens residing in Portugal
concerning their unavailability for the removal of organs or tissues.
90. It should be mentioned, with reference
to article 10 of the above Decree-Law, that any person has the right
to be informed of the contents of the entry or entries concerning
him or her in the computerized file of the National Register of
Non-Donors.
Clinical experiments on human beings
91. Following the Basic Health Act (Act No.
48/90, of 24 August 1990), Decree-Law No. 97/94, of 9 April 1994,
established the rules governing clinical experiments on human beings,
so as to ensure their physical and mental integrity and the efficacity
and safety of medicines.
92. As a general principle, the good of the
individual must always take precedence over the interests of science
and the community.
93. The researcher must simply intelligibly
and faithfully inform the subject of the experiment of the foreseeable
risks, consequences and benefits and of the methods and the aims
pursued. Consent must be voluntary, informed, specific and in writing.
94. Clinical experiments must follow recognized
scientific principles and ensure respect for the physical and mental
integrity of the persons concerned. They must also be preceded by
experiments on animals and may be carried out on human beings only
when the results of such experiments allow it to be concluded that
the risks for the persons who will undergo them are in proportion
to the foreseeable benefits.
95. Clinical experiments may be performed only
by qualified physicians with experience in the field of research
concerned, and in particular in the clinical experiments proposed.
96. The above-mentioned experiments may be
carried out only in public health establishments or in officially-approved
private health facilities, which have the indispensable material
and human resources to guarantee the scientific quality of the experiments
to be carried out.
97. The terms for carrying out each experiment
must be part of a specific protocol establishing the relevant objectives,
the conditions under which the experiment will be conducted and
the various phases.
98. Prior authorization is required to perform
experiments. This will be granted by the administrative body of
the institution where they will take place, on application by the
promoter. The Ethics Commission is required to take a decision on
requests for authorization to carry out experiments and to supervise
them, particularly with regard to ethical considerations and the
safety and integrity of the subjects of clinical experiments.
99. All persons who have taken part in experiments
are prohibited from revealing personal data to which they may have
had access through their activities in this regard.
Status of non-governmental organizations
for cooperation for development
100. In the sphere of legislative measures
adopted to prevent torture, the role of the non-governmental organizations
for cooperation for development (NGOD) must be mentioned.
101. Act No. 19/94, of 24 April 1994, defines
the status of the NGODs.
102. The NGODs have legal personality in general
law and are private law legal entities. Their aims are cooperation
and inter-cultural dialogue and support for programmes and projects
in developing countries through: (a) development activities; (b)
humanitarian assistance; (c) protection
and promotion of human rights; (d) provision
of emergency relief; (e) dissemination of information and creation
of public awareness in order
to develop cooperation and intensify inter-cultural
dialogue with developing countries.
103. Their activities are performed in compliance
with the United Nations Universal Declaration of Human Rights.
104. The State accepts, supports and appreciates
the contribution of the NGODs in implementing national cooperation
policies defined for developing countries. State support takes the
form of technical and financial aid for programmes, projects and
activities concerning cooperation for development and the creation
of public awareness. State support may not, however, constitute
a restriction on the NGODs' right of freedom of action.
105. The NGODs have the right to take part
in formulating national and international cooperation policies through
their representatives on advisory bodies concerned with cooperation.
106. Recognizing the importance of the role
of the NGODs in the defence of human rights and fundamental freedoms,
the recent Ministerial Decree No. 4/MJ/96, of 12 January 1996, sets
out the duty of the services of the Ministry of Justice to provide
all necessary information as rapidly as possible at the request
of some of these organizations (e.g. Forum Justiça e Liberdades,
Associação para o Progresso do Direito, Associação
Portuguesa dos Direitos dos Cidadãos and CIVITAS: Associação
para a Defesa e Promoção dos Direitos dos Cidadãos).
Under this decree, the above-mentioned NGODs must in future give
an opinion on all draft texts concerning human rights and fundamental
freedoms.
Article 3
107. Article 3 of the Convention states that
no State Party shall expel, return ("refouler") or extradite
a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
108. With reference to this provision in the
context of the Constitution of the Portuguese Republic, there have
been no changes since the initial report (paras. 116 to 126).
109. Article 33 of the Constitution contains
the following fundamental provisions on extradition, deportation
and the right of asylum:
- "Extradition, deportation and the right of asylum
- 1. Portuguese citizens shall not be extradited or deported from
the national territory.
- 2. No one shall be extradited for political reasons.
- 3. No one shall be extradited for crimes which carry the death
penalty under the law of the requesting State.
- 4. Extradition shall be decided only by a judicial authority.
- 5. Deportation of persons who have entered or have been residing
in Portuguese territory legally, of persons who have obtained
a residence permit or of persons who have submitted an application
for asylum which has not been rejected, shall be decided only
by a judicial authority. The law shall provide for a rapid decision
in this respect.
- 6. The right of asylum shall be guaranteed for aliens and stateless
persons who are being prosecuted or seriously threatened with
prosecution for their activities on behalf of democracy, social
and national liberation, peace between peoples and the freedom
and rights of the individual.
- 7. The status of political refugees shall be defined by law."
110. It should be recalled that the European
Convention on Human Rights applies under Portuguese law. This Convention
does not guarantee the right of aliens not to be deported or extradited
from the territory of one of the Contracting States (art. 5, para.
1 (f)), while articles 3 and 4 of Protocol 4 to the Convention in
fact empower States to deport aliens from their territory. However,
the case law of the organs of the European Convention on Human Rights
has placed some restrictions on the power of States to deport aliens
in cases where the rights guaranteed in article 3 of the Convention
might be infringed (prohibition of torture or inhuman or degrading
treatment). This interpretation is naturally valid for Portugal.
111. The basic features of the regulations
governing extradition and deportation are discussed below.
Extradition
112. The legal regime governing extradition
is set out in Decree-Law No. 43/91, of 22 January 1991, which outlines
international legal cooperation in criminal matters, and was discussed
in the last report submitted by Portugal (paras. 117 to 124). In
order to expand this information, the fundamental principles which
govern extradition are described below.
113. Decree-Law No. 43/91 has a secondary role.
According to its article 3, the forms of cooperation for which it
provides are governed by the provisions of the international treaties,
conventions and agreements binding on the Portuguese State. This
Decree-Law applies only in the event of default or inadequacy. The
provisions of the Code of Criminal Procedure are subsidiary to these
provisions.
114. Designed as a unilateral political act
of Government and an instrument of international legal cooperation,
applicable in default of a treaty or convention, the international
cooperation regulated by the Decree-Law is based on the principle
of reciprocity. However, the absence of reciprocity is no obstacle
to the fulfilment of a request for cooperation, if this cooperation
(a) proves necessary because of the nature of the fact or necessity
of combating certain serious forms of criminal behaviour; (b) may
contribute to improving the situation of the accused or his reintegration
into society, or (c) may serve to elucidate acts attributed to a
Portuguese citizen.
115. The implementation of this Decree-Law
is also subject to the protection of the sovereignty, security,
public order and other interests of the Portuguese Republic as defined
by the Constitution.
116. Cooperation is also restricted in the
case of criminal proceedings which do not come within the competence
of the judicial authorities of the requesting State.
117. Extradition may take place for the purposes
of criminal proceedings or of the application of a custodial penalty
for a crime falling under the jurisdiction of the courts of the
requesting State. Whatever the case, the person in question may
only be extradited in connection with a criminal offence (even if
only attempted) which is punishable under Portuguese law and under
the law of the requesting State by a custodial penalty of a maximum
duration of not less than one year.
118. When extradition is requested for the
purpose of executing a custodial penalty, the request can be granted
only if the remaining part of the sentence to be served is not less
than four months.
119. A request for extradition is refused:
(a) If the procedure does not conform to or
observe the conditions
set out in the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 4 November
1950, or in any other relevant international instrument ratified
by Portugal;
(b) If there are serious grounds to believe
that the cooperation is requested in order to prosecute or punish
a person on account in particular of his race, religion, sex, nationality,
language, politics or ideological convictions or membership of a
particular social group;
(c) If the person's situation is likely to
be aggravated for any of the reasons set out in the previous paragraph;
(d) If such cooperation may result in his being
tried by a court of special jurisdiction or is connected with the
enforcement of a decision handed down by such a court;
(e) If the act to which it relates is punishable
by death or life imprisonment;
(f) If such cooperation concerns an offence
to which a permanent protective measure is applicable;
(g) If the crime was committed on Portuguese
territory;
(h) If the person in question has Portuguese
nationality.
120. The provisions of paragraphs (e) and (f)
above were the subject of two important decisions by the Constitutional
Court. The first of these, concerning the death penalty, is Decree
No. 417/95, published in the Official Gazette of 17 November 1995.
Briefly, the facts are as follows: China requested the extradition
of Yeung Yuk Leung, residing in Macao and accused of a crime carrying
the death penalty under Chinese law. When the Supreme Court of Macao
was on the point of granting extradition, subject to a guarantee
that the death penalty would be replaced by another punishment,
the question of constitutionality was raised. Invoking article 33,
paragraph 3, of the Constitution, the Constitutional Court decided
that extradition should be prohibited when the crime ascribed to
the person to be extradited potentially carried the death penalty,
since the promise of a substitute penalty could not be considered
an adequate guarantee.
121. Constitutional Court Decree No. 474/95,
published in the Official Gazette of the same date, concerns life
imprisonment and is somewhat similar. Mr. Armando Varizo, a Brazilian
national, was accused of drug-trafficking between Brazil and the
United States of America. The latter country asked Portugal to extradite
him. Under American law, life imprisonment was theoretically applicable
in this case. The Constitutional Court decided that article 6, paragraph
1 (e), of Decree-Law No. 43/91 was unconstitutional and in breach
of article 30, paragraph 1, of the Constitution when interpreted
as not prohibiting extradition in situations carrying the penalty
of life imprisonment, even if the application of the penalty cannot
be anticipated because the requesting State has given guarantees
in that regard.
122. The above two decisions take as valid
the principle whereby the constitutional provision that the death
penalty or life imprisonment should not be imposed on any Portuguese
citizen should be applicable to aliens living permanently or temporarily
in Portugal, given the principles of universality and equality and
the equivalence of the rights of aliens and stateless persons, all
of which are embodied in the Constitution. The preamble to Decree-Law
No. 43/91 had already provided for the unconstitutionality of norms
permitting extradition to States where the crime carried the penalty
of life imprisonment. That was also the sense of the reservation
entered by Portugal when it ratified the European Convention on
Extradition.
123. A request for extradition is also refused
if the procedure concerns: (a) an act which, under Portuguese law,
constitutes a political offence or an offence connected with a political
offence; (b) an act which constitutes a military offence which is
not simultaneously covered by ordinary criminal law.
124. Taking account of international provisions
in this regard, the Decree-Law establishes that the following offences
are not considered political offences:
(a) Genocide, crimes against humanity, war
crimes and serious crimes pursuant to the Geneva Conventions of
1949;
(b) Offences covered by article 1 of the European
Convention on the Suppression of Terrorism, opened for signature
on 27 January 1977;
(c) Acts referred to in the Convention against
Torture and
Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted on 10 December 1984 by the United Nations
General Assembly;
(d) Any other crime the political nature of
which has been expunged by treaties, conventions or international
agreements to which Portugal is a party.
125. The extradition procedure is considered
as of an urgent nature and comprises two phases: the administrative
phase and the judicial phase.
126. The administrative phase involves the
examination by the Government of the application for extradition
in order to reach a decision as to whether it should be followed
up or immediately rejected, either on political grounds or because
it is considered untimely or inappropriate.
127. The Minister of Justice begins by submitting
the request for extradition to the Office of the Attorney-General
of the Republic for verification of its due and proper form and
orders the competent criminal police authorities to keep the person
requested under surveillance. The Attorney-General of the Republic
must hand down an opinion within 20 days. In the following 10 days,
the Minister of Justice transmits the request, together with his
opinion, to the Government for a decision. If the request is refused,
the case is simply struck off the list.
128. The judicial phase falls exclusively within
the competence of the Court of Appeal and calls for a decision to
be taken, after the interested party has been heard, on the extradition
agreement, once all conditions have been met concerning its form
and its merits. This phase does not involve the presentation of
any evidence concerning the acts ascribed to the person to be extradited.
Deportation
129. The grounds for deportation are set out
in article 67 of Decree-Law No. 59/93, of 3 March 1993, concerning
the entry, departure, residence and deportation of aliens from national
territory.
130. Aliens will be deported from Portugal
if they:
(a) enter the national territory unlawfully;
(b) commit acts detrimental to national sovereignty,
or public order or morals;
(c) engage in activities which threaten Portuguese
interests or the dignity of the Portuguese State or its nationals;
(d) interfere in the exercise of the rights
of participation enjoyed exclusively by nationals;
(e) fail to comply with Portuguese laws concerning
aliens;
(f) have committed acts which would preclude
their entry into the national territory.
131. The law also makes provision for an accessory
penalty of deportation in the case of:
(a) non-resident aliens, sentenced for wilful
crimes to more than six months' imprisonment;
(b) aliens who have resided in Portugal for
less than five years, sentenced for wilful crimes to more than one
year's imprisonment;
(c) aliens who have resided in Portugal for
more than 5 and less than 20 years, sentenced to more than 3 years'
imprisonment; and
(d) aliens who have entered the national territory
during a period when they were prohibited from doing so.
132. Deportation may also be the result of
a sentencing decision handed down in accordance with criminal legislation
(new Penal Code, art. 97).
133. Article 34 of Decree-Law No. 15/93, of
22 January 1993, concerning the anti-drugs campaign, provides for
the deportation, for a period not exceeding ten years, of an alien
convicted of a crime covered by this Decree-Law.
134. An alien may not be deported to a country
where he may be subject to prosecution on grounds warranting his
being granted asylum, in accordance with article 2 of Act No. 70/93,
of 29 September 1993, which defines the regime governing the right
of asylum and the status of political refugee. This article states
that an alien or stateless person prosecuted or in serious danger
of prosecution for his political convictions, i.e. for his activity
on behalf of democracy, social and national freedom, peace among
nations, freedom and human rights, in the State of which he is a
national or in which he habitually resides, or an alien or stateless
person prosecuted on grounds of religion, race, nationality or social
integration may apply for and be granted asylum.
135. In order to take advantage of this protection,
the person in question must invoke the fear of persecution and provide
evidence of it within the prescribed time-limit.
136. Deportation may be ordered by a judicial
authority or by the competent administrative authority, the Aliens
and Frontiers Service.
137. In the event of an accessory penalty or
when the alien who is the subject of the decision has entered the
national territory lawfully and obtained permission to reside there
or has submitted an application for asylum which has not been refused,
deportation shall be decided on by a judicial authority.
138. An alien entering the national territory
unlawfully may be detained by any authority, referred to the Aliens
and Frontiers Service and within not more than 48 hours be brought
before the judicial authority with competence to legitimize his
detention and decide on the application of enforcement measures.
These may be, in addition to the measures listed in the Code of
Criminal Procedure (e.g. declaration of identity and residence,
mandatory bail, obligation of the alien to present himself periodically
before a judicial authority or criminal police body on certain days
at specified times, suspension from the performance of duties, the
practice of a profession and the enjoyment of rights, prohibition
of residence, restricted residence and pre-trial detention), periodic
reporting before the Service of Aliens and Frontiers and accommodation
in temporary centres, as provided in Decree-Law No. 34/94, of 14
September 1994.
139. As stated in paragraph 126, the Aliens
and Frontiers Service is the competent authority for the initiation
of deportation proceedings. During the proceedings, the alien must
attend a hearing. The deportation decision falls within the competence
of the director of the Service and an appeal against it may be lodged
with the Minister of the Interior or with the administrative tribunals
(art. 87).
Article 4
140. According to article 4 of the Convention,
each State Party shall ensure that all acts of torture are offences
under its criminal law and the same shall apply to any attempt to
practise torture and to any act by any person which constitutes
complicity or participation in torture.
141. The general legal framework for the prevention
and punishment of torture has not undergone significant modification.
It is therefore important to take account of the initial report
and in particular paragraphs 17 to 25, 50 to 53 and 127 to 129.
142. With regard to criminal law, as already
specified at the start of this report (see para. 5), Decree-Law
No. 48/95, of 15 March 1995 adopted the new Penal Code, which established
torture and other cruel, inhuman and degrading treatment as a new
class of crime (arts. 243 and 244).
143. The new Penal Code only came into force
on 1 October 1995, but the general regime which provides for the
punishment of torture and acts constituting cruel, inhuman or degrading
treatment merits description.
144. Article 243 of the new Penal Code, under
the heading "Torture and other cruel, inhuman or degrading
treatment", states that:
- "1. Any person responsible for preventing, prosecuting,
investigating or trying criminal or disciplinary offences, for
the enforcement of penalties in that connection, or for the protection,
custody or supervision of detainees or prisoners, who subjects
them to torture or to cruel, inhuman or degrading treatment, for
the purpose of:
- (a) obtaining from them or from third parties confessions, depositions,
statements or information;
- (b) punishing them for an act committed by them or of which
they are suspected, or acts committed by others;
(c) intimidating them or other persons,
- shall be liable to imprisonment for one to five years, unless
a heavier penalty is applicable under another legal provision;
- 2. Any person who on his own initiative or on the orders of
a superior usurps the responsibility described in the foregoing
paragraph in order to commit one of the acts described, shall
be liable to the same penalty;
- 3. Torture or cruel, inhuman or degrading treatment, is considered
to be an act by which acute physical or mental suffering is inflicted
or in which chemicals, drugs or other natural or artificial means
are used with the intention of impairing the judgement or the
free expression of the victim;
- 4. The wording of the previous paragraph does not include the
sufferings inherent in or stemming from the execution of the penalties
for which the first paragraph provides or the legal measures which
deprive a person of his freedom or restrict that freedom."
145. Article 244, entitled "Torture and
other severe cruel, inhuman or degrading treatment", provides
that:
- "1. Any person who, under the terms and conditions mentioned
in the previous article:
(a) Seriously violates a person's physical
integrity;
- (b) Makes use of particularly severe methods of torture, i.e.
beatings, electric shocks, mock executions, or hallucinogens,
or
- (c) Habitually commits the acts mentioned in the previous article:
shall be liable to 3 to 12 years' imprisonment.
- 2. When the acts described in this or the previous article are
followed by the suicide or death of the victim, the perpetrator
shall be liable to 8 to 16 years imprisonment".
146. Failure to report such acts is punishable
in accordance with article 245 which provides that a superior who
knows that his subordinate has engaged in the acts referred to in
articles 244 and 245 and fails to report him within not more than
three days after learning of the fact, shall be liable to six months'
to three years imprisonment.
147. The effect of the amendments to the new
Penal Code in respect of offences involving torture and other cruel
or degrading treatment, is shown in the table below comparing the
penalties applicable to the different types of crime:
| Type
of crime |
Sentence
applied: old Penal Code |
Sentence
applied: new Penal Code |
Aggravated
sentence: old Penal Code |
Aggravated
sentence: new Penal Code |
| Torture and other cruel, inhuman or degrading
treatment a/ |
No article exists |
1 to 5 years' imprisonment |
No article exists |
3 to 12 years' imprisonment |
| Failure to report a/ |
No article exists |
6 months' to 3 years' imprisonment |
- |
- |
| Ordinary homicide |
8 to 16 years' imprisonment |
8 to 16 years' imprisonment |
- |
- |
| Aggravated homicide b/ |
12 to 20 years' imprisonment |
12 to 25 years' imprisonment |
- |
- |
| Homicide through negligence |
up to 2 years' imprisonment |
up to 3 years' imprisonment |
up to 3 years' imprisonment |
up to 5 years' imprisonment |
| Exposure to or desertion in the face of danger |
6 months' to 5 years' imprisonment |
1 to 5 years' imprisonment |
1 to 5 years' imprisonment |
2 to 8 years' imprisonment (offence of serious
assault) c/
3 to 10 years' imprisonment (in case
of death)
|
| Ordinary offence against the person c/ |
up to 2 years' imprisonment |
up to 3 years' imprisonment |
- |
- |
| Serious offence against the person c/ |
1 to 5 years' imprisonment |
1 to 10 years' imprisonment |
- |
- |
| Offence against the person entailing possible
danger c/ |
6 months' to 3 years' imprisonment |
article deleted |
- |
- |
| Offence against the person aggravated by the consequences |
6 months' to 3 years' imprisonment (ordinary offence
against the person)
2 to 8 years' imprisonment (serious offence
against the person)
|
1 to 5 years' imprisonment (physical assault)
3 to 12 years' imprisonment (simple assault)
|
- |
- |
| Ill-treatment of children or spouse |
6 months' to 3 years' imprisonment |
1 to 5 years' imprisonment |
6 months' to 4 years' imprisonment (in the case
of a serious offence against the person c/); 3 to 9 years' imprisonment
(in case of death) |
2 to 8 years' imprisonment (in the case of a serious
offence against the person c/); 3 to 10 years' imprisonment
(in case of death) |
| Prohibited use of firearms d/ |
up to 6 months' imprisonment |
article deleted |
up to 2 years' imprisonment |
article deleted |
| Threats |
up to 1 year's imprisonment |
up to 1 year's imprisonment |
up to 2 years' imprisonment |
up to 2 years' imprisonment |
| Coercion |
up to 2 years' imprisonment |
up to 3 years' imprisonment |
- |
- |
| Serious coercion (by an official with misuse of
powers) |
6 months' to 3 years' imprisonment |
1 to 5 years' imprisonment |
- |
- |
| Illegal detention |
up to 2 years' imprisonment |
up to 3 years' imprisonment |
2 to 10 years' imprisonment |
2 to 10 years' imprisonment e/ or 3 to 15 years'
imprisonment (in case of death) |
| Slavery |
8 to 15 years' imprisonment |
5 to 15 years' imprisonment |
- |
- |
| Abduction |
4 to 8 years' imprisonment |
2 to 8 years' imprisonment |
4 to 10 years' imprisonment or up to 15 years'
imprisonment (in case of death) |
3 to 15 years' imprisonment or 8 to 16 years'
imprisonment (in case of death) |
| Kidnapping of a minor |
6 to 10 years' imprisonment |
article deleted |
8 to 15 years' imprisonment |
article deleted |
a/ These articles come under the chapter of
crimes against humanity, while the others come under that of crimes
against life.
b/ In the case of aggravated homicide, the
use of torture or acts of cruelty to increase the suffering of the
victim may be considered particularly to merit censure or to be
particularly perverted.
c/ The references to "offence against
the person" will be reworded to read "offence of assault".
d/ The article concerning the prohibition on
the use of firearms has been deleted, since it is considered that
the characteristics described here are not technically distinct
from threats or other types of crimes against persons.
e/ One of the conditions for the aggravation
of the crime of illegal detention is if it is preceded or accompanied
by offences of serious assault or by torture or other cruel, inhuman
or degrading treatment.
148. Article 412 has not undergone any changes.
It specifies that any official who resorts to violence, serious
threats or any other illegal means of constraint in order to obtain
a written or oral statement from an accused person, informant, witness
or expert, or to prevent them from making such a statement, will
be liable to six months' to four years' imprisonment.
149. Under the old Penal Code, operations and
medical and surgical treatment performed according to the leges
artis by a physician or a person legally authorized to do so, for
preventive, therapeutic or palliative reasons, were not considered
to be physical injury (art. 150). The prior consent of the person
concerned, however, had to be duly obtained (arts. 38, 149 and 159;
presumed consent is the subject of art. 39).
150. Article 150, paragraph 2, further established
that a person violating the rules of the leges artis, thus endangering
the physical existence, the health or the life of the sick person,
would be liable to a maximum of two years' imprisonment. In the
new Penal Code, this paragraph has been deleted.
151. Under article 158, arbitrary operations
and medical and surgical treatment are punishable by up to three
years' imprisonment and by a fine of up to 120-days pay. The new
Penal Code keeps the prison sentence and increases the fine to the
maximum general limit of 360 days' pay (art. 156).
152. The artificial insemination of a woman
without her consent is currently punishable by 1 to 15 years' imprisonment
(art. 214). The new Penal Code has introduced an article 168 on
"artificial reproduction without consent", which provides
for one to eight years' imprisonment for a person who practises
artificial reproduction on a woman without her consent.
153. The new Penal Code has deleted the article
concerning the use of poison to damage a person's physical or mental
health (art. 146), on the grounds that the behaviour described is
not independent but part of the crime of aggravated assault.
154. The solutions adopted to punish the various
persons involved in carrying out a crime (perpetrator, accomplice
or fellow participant) have also been kept. Deliberate complicity
is punishable by a specially mitigated version of the penalty imposed
on the perpetrator.
Article 5
155. Article 5 of the Convention deals with
the territorial application of criminal law. In Portugal, this is
the subject of articles 4, 5 and 6 of the Penal Code, as described
in the last report (see above, para. 131).
156. The extraterritorial application of Portuguese
law, under the new Penal Code, has not been modified with regard
to the matters covered by the Convention. Modifications made have
extended the scope of extraterritorial application of Portuguese
criminal law to certain electoral and computer-related crimes.
Article 6
157. Any State party in whose territory a person
alleged to have committed any offence under the Convention is present
shall, under article 6, take him into custody or take other legal
measures to ensure his presence. The custody and other legal measures
shall be as provided in the law of that State.
158. In Portugal, the rules for the detention
of persons suspected of committing the crimes detailed in the Convention
vary depending on whether the person is remanded in custody for
the purpose of criminal prosecution or remanded in custody for the
purpose of extradition.
Remand in custody for the purpose of extradition
159. Remand in custody for the purpose of extradition
remains possible if it comes under an international convention or
treaty in force in Portugal, and in the absence of an international
convention or treaty under Decree-Law No. 43/91, of 22 January 1991,
on a basis of reciprocity.
160. In an emergency, the provisional arrest
of the person to be extradited may be requested as a prior step
to any formal request for extradition. The decision concerning arrest
and the maintenance of remand in custody is taken in accordance
with Portuguese law. It should be noted that, according to the Constitution
of the Republic of Portugal, remand in custody without a conviction
will, within a maximum period of 48 hours, be the subject of a judicial
decision to validate or maintain it.
161. Remand in custody may be replaced by other
forcible measures as the Code of Criminal Procedure provides.
162. The provisional arrest is terminated if
the request for extradition is not submitted within 18 days of the
arrest, although this deadline may be extended to 40 days if valid
reasons are invoked by the requesting State.
163. The criminal police authorities may arrest
any person who, according to official information, particularly
from Interpol, is sought by the competent foreign authorities for
the purpose of prosecution or the execution of a penalty for acts
which manifestly justify extradition (art. 38, arrest which has
not been requested). Such arrest remains subject, however, to the
judicial control referred to in paragraph 151.
Remand in custody for the purpose of criminal
prosecution
164. Remand in custody for the purpose of criminal
prosecution is governed by article 28 of the Constitution and by
the Code of Criminal Procedure.
Remand in custody of persons caught in flagrante
delicto
165. The law distinguishes clearly between
pre-trial detention as a last resort measure of constraint and the
remand in custody of persons caught in flagrante delicto the aims
of which are set out in article 254 of the Code of Criminal Procedure:
(a) To bring the detainee before a court within
48 hours following the arrest, or bring him within the same period
before the competent examining magistrate for initial judicial questioning
or to impose an enforcement measure or bail;
(b) To ensure that the detainee appears immediately
before the judge so that a procedural act can be drawn up.
166. Article 255, paragraph 1, of the Code
of Criminal Procedure provides that the remand in custody of persons
caught in flagrante delicto in respect of a crime punishable by
a prison sentence may be effected by:
(a) A judicial or police authority;
(b) Any other person, if the above authorities
are not available and if they cannot be summoned in time.
167. If the crime is prosecuted on a private
charge, a person caught in flagrante delicto may not be remanded
in custody and only the formal identification of the perpetrator
of the offence may take place (art. 255, para. 4).
168. The remand in custody of persons who were
not caught in flagrante delicto requires a warrant from the magistrate,
or the public prosecutor's department in cases where pre-trial detention
is admissible (art. 257, para. 1). Article 257 specifies that the
criminal police authorities may also order persons who were not
caught in flagrante delicto to be remanded in custody:
(a) If pre-trial detention is admissible in
the case in question;
(b) If there is a reason to fear that the person
may abscond;
(c) If on account of the emergency and the
danger of delay it is not possible to await the intervention of
the judicial authority.
169. Article 259 establishes that the police
have the duty when remanding a person in custody to communicate
immediately with the judge or the public prosecutor's department,
as appropriate.
170. The authority ordering a person to be
remanded in custody or before whom the detainee is brought, has
the duty to order his immediate release in the event of mistaken
identity, if he was arrested other than in circumstances authorized
by the law or in cases in which the measure has become unnecessary
(art. 261, para. 1).
Pre-trial detention
171. Article 28 of the Constitution, on pre-trial
detention, provides, as has already been said, that remand in custody
without charges must be subject to a court decision within a maximum
period of 48 hours to validate or continue it. The judge must be
informed of the reasons for the remand in custody and communicate
them to the detainee, question him and allow him to defend himself
(para. 1). Paragraph 2 establishes that pre-trial detention is not
to be continued if it can be replaced by bail or any other more
favourable measure provided for by law. The court decision ordering
or maintaining the deprivation of freedom shall be communicated
immediately to a relative or a person in whom the detainee has confidence
and named by him (para. 3).
172. Before and after charges are brought,
pre-trial detention is subject to the time-limits set out in article
215 of the Code of Criminal Procedure. Pre-trial detention ends
therefore when the following periods have elapsed from its start:
(a) Six months, if no charge has been filed
against the accused;
(b) Ten months, if, after the pre-trial examination
has taken place, no decision has been handed down concerning committal
for trial;
(c) Eighteen months when no first instance
sentence has been handed down;
(d) Two years, when no sentence with force
of res judicata has been handed down.
173. There are, however, some legal exceptions
to these regulations depending on the nature of the crime, the nature
of the procedure, the existence of an appeal before the Constitutional
Court or the suspension of the criminal procedure so that a judgement
can be handed down by another court on a prejudicial question.
174. Pre-trial detention is recognized as a
measure of last resort which is clearly secondary to the other enforcement
measures laid down in the Code of Criminal Procedure. It is subject
to the general conditions for the implementation of enforcement
measures, established in article 204 of the Code and set out below.
175. Pre-trial detention may be applied only
when other measures have proved inadequate or insufficient (art.
193, para. 2 of the Code of Criminal Procedure). In such cases,
it may be applied if there is strong evidence of a wilfully committed
crime punishable by a sentence exceeding a maximum of three years'
imprisonment (art. 202, para. 1(a)), or if the person in question
has unlawfully entered or resided in the national territory or if
extradition or deportation proceedings have been instituted against
him (art. 202, para. 1(b)).
176. If the accused seems to suffer from mental
abnormality, the judge may hand down a decision of preventive confinement
in a psychiatric institution while the abnormality persists, once
he has heard defense counsel and, as soon as possible, a family
member. The necessary precautions will be taken to prevent the accused
from escaping and committing further crimes (art. 202, para. 2 of
the Code of Criminal Procedure).
Other enforcement measures
177. According to the principle of legality
set out in article 191 of the Code of Criminal Procedure, the freedom
of individuals may be restricted, whether totally or partially,
only on the basis of procedural requirements, by enforcement measures
or bail for which the law provides.
178. The enforcement measures or the bail must
be in keeping with the requirements of prevention in the case in
question and proportional to the seriousness of the crime and the
penalties applicable (art. 193, para. 1 of the Code of Criminal
Procedure).
179. Article 193, paragraph 3, of the Code
of Criminal Procedure also provides that such measures shall not
affect the exercise of fundamental rights which are not incompatible
with the requirements of prevention in the case in question.
180. The application of enforcement measures
or of bail always as a preliminary require the person to be considered
as charged (art. 192, para. 1), this confers the following rights
on him:
(a) To be present at proceedings which directly
concern him;
(b) To be heard by the court or the examining
magistrate when they take any measure concerning him;
(c) Not to be forced to reply to questions
from participants in the trial in respect of the acts ascribed to
him or in respect of the content of statements already made;
(d) To select his own counsel or request the
court to appoint one;
(e) To be assisted by counsel in all proceedings
in which he participates and, when in detention, to be able to communicate
with him, even in private;
(f) To take part in the inquiry and in the
pre-trial investigation, submit evidence and avail himself of such
procedures as he may deem necessary;
(g) To be informed of his rights by the judicial
authority or by the criminal police body before which he is required
to appear;
(h) To appeal, in accordance with the law,
against unfavourable decisions.
181. These measures cannot, however, be applied
if there are reasons to believe in the existence of causes which
absolve him from responsibility or call for the termination of the
criminal proceedings (art. 192, para. 2). They must always be applied
as the result of a decision handed down by a judge, at the request
of the attorney-general's department during the inquiry, or even
on his own initiative following the inquiry, after hearing the attorney-general
(art. 194, para. 1).
182. Article 204 of the Code of Criminal Procedure,
which lays down the general conditions for the application of enforcement
measures, states that none of these decisions can be applied, with
the exception of the measure of declaration of identity and residence,
unless it is shown that the accused has escaped or may escape or
disrupt the inquiry or tamper with the evidence or disturb public
order and peace.
183. The enforcement measures shall immediately
be revoked by order of the judge when they are applied in situations
other than those for which the law provides or when the circumstances
which justify their application no longer apply (art. 212). Their
modification may be ordered when changes in the circumstances so
justify. Their termination is governed by article 214 of the Code
of Criminal Procedure which stipulates that they must immediately
be revoked if:
(a) The inquiry is closed and the opening of
the investigation phase has not been requested;
(b) The order deciding that no charge will
be brought has acquired force of res judicata;
(c) The order rejecting the charge for clear
lack of evidence under article 311, paragraph 2(a), has acquired
force of res judicata;
(d) A dismissal decision is taken;
(e) The sentence has acquired force of res
judicata.
184. The enforcement measures admissible under
the Code of Criminal Procedure are listed in articles 196 to 202:
- 1. Declaration of identity and residence (termo de identidade
e residência, consisting in the obligation incumbent on
the accused to present himself to the competent authority each
time that the law requires and not to change his residence or
to absent himself from it, without informing the authorities or
without leaving a means of contact;
- 2. Obligation to provide bail. This measure applies when the
alleged crime is punishable by imprisonment;
- 3. Obligation to present himself periodically to a judicial
body or a criminal police agency at specified times on pre-determined
days. This enforcement measure may be applied in cases in which
the alleged crime is punishable by a maximum of six months' imprisonment;
- 4. Suspension from the performance of his duties, the practice
of his occupation or the exercise of his rights. The application
of this measure may be combined with another legally applicable
measure in cases in which the alleged crime is punishable by a
maximum of two years' imprisonment;
- 5. Prohibition of residence, absence and contact. These measures
may be applied, in combination or separately, when there is strong
evidence of a wilfully committed offence punishable by more than
two years' imprisonment;
- 6. Restricted residence, except in the case of prior authorization
to leave. This measure shall be applied when there is strong evidence
of a wilfully committed offence punishable by a maximum of three
years' imprisonment;
- 7. Pre-trial detention, already discussed above (paras. 162
to 167).
185. Provisions of criminal procedure governing
custody also apply in other areas.
186. For example, under military discipline
regulations, pre-trial detention and substitute measures are covered
by the Code of Criminal Procedure, except for those aspects covered
by the Code of Military Justice, adopted by Decree-Law No. 141/71,
of 9 April 1971 (arts. 363 to 375).
187. With regard to minors, the regulations
of the Protection of Minors Act, the current version of which was
adopted by Decree-Law No. 314/78, of 27 October 1978, and amended
by Decree-Law No. 58/95, of 31 March 1995, state that a minor (under
16 years of age) charged with a crime may not be placed by the police
in "appropriate" police premises or in a security establishment
unless it is not possible to bring him before the court immediately;
he must appear before the court as soon as the cause preventing
his appearance has ceased to exist.
188. During the pre-trial examination, only
the judge may decide whether a child should be placed in an institution
in the most serious cases, i.e. in cases in which it is assumed
that placement in a security establishment will be part of the final
decision. The duration of this measure, however, may not exceed
20 days, except when it is specifically wished to observe the minor
in order to gain an insight into his nature, temperament, abilities,
capacities and tendencies and the situation of his family and social
environment. In this case, his placement - in an observation and
social welfare centre - may be extended to up to three months.
189. Decree-Law 401/82, of 23 September 1982,
instituted a special criminal regime for young persons aged between
16 and 21, by allowing the court to reduce the penalty when there
are serious reasons to believe that doing so will contribute to
the reintegration of the convicted person. However, there are no
other special provisions concerning the conditions in which young
persons may be remanded in custody by the police or placed in pre-trial
detention. They are therefore subject to the general rules of the
Code of Criminal Procedure.
190. With reference to article 6, paragraphs
3 and 4, of the Convention, it should be recalled that Portugal
is a party to the Vienna Convention on Consular Relations, which
stipulates in article 36 that consular officers of a State must
be informed of the provisional arrest of one of their own nationals,
if he so requests, and must be free to communicate with him and
protect his interests.
191. The obligation to notify other States
parties to the Convention of any remand in custody and to inform
them of the results of the preliminary investigations will be observed
as long as it is not incompatible with commitments flowing from
the obligation to protect privacy under the Constitution and the
law, for example, the Act on the protection of personal data (adopted
by Act No. 10/91, of 29 April 1991, amended by Act No. 28/94, of
29 August 1994) and under such pertinent international instruments
as the International Covenant on Civil and Political Rights (art.
17) and the European Convention for the Protection of Human Rights
and Fundamental Freedoms (art. 8).
Article 7
192. Under this article, and in conformity
with article 31 of Decree-Law No. 43/91 of 22 January 1991, if extradition
is refused, the requesting State is called upon to furnish all the
elements needed for the institution or continuation of criminal
proceedings against the person being prosecuted for the offence
that constitutes the grounds for the request.
193. Consequently, if Portugal does not allow
the extradition of the person in question, it is bound to bring
criminal proceedings against him, according to the principle of
aut dedere, aut judicare.
194. In that case, the rights and procedural
safeguards of the accused under the Constitution and the law are
fully respected, and the terms of the treaty do not entail any special
derogation from the general rules on the subject.
Article 8
195. Under this article of the Convention,
the offences concerning torture referred to in article 4 must be
included in any extradition treaty concluded or to be concluded
between States.
196. As stated previously with respect to article
3, extradition in Portugal is governed by article 33 of the Constitution
and by Decree-Law No. 43/91 (outline Act on international cooperation
in criminal matters), which is applied in the absence of an international
treaty on the subject.
197. Decree-Law No. 43/91, like most of the
extradition treaties to which Portugal is a party, provides for
the possibility of extradition as long as the offence is punishable,
under Portuguese law and the law of the requesting State, by a custodial
sentence of a maximum duration of not less than one year. Furthermore,
when extradition is requested in order to carry out a custodial
sentence, it can be granted only if the unserved duration of the
sentence is not less than four months.
198. The above-mentioned Decree-Law makes provision
for some exceptions to the obligation to grant extradition, such
as military and political criminal offences. The same rule can be
found in the extradition treaties to which Portugal is a party.
199. However, the acts referred to in the Convention
are not considered to be political criminal offences (in this regard
see in particular paragraph 114 above).
Article 9
200. International mutual judicial assistance
in criminal matters is governed (in ancillary fashion) by Decree-Law
No. 43/91 (arts. 135 et seq.), as has been mentioned with regard
to extradition (paras. 104-118 of this report, on article 3).
201. Certain international conventions recently
concluded by Portugal on the subject, which have already been referred
to at the beginning of this report, should nevertheless also be
taken into account.
202. Several agreements have also been concluded
with African countries whose official language is Portuguese, with
the intention of securing the broadest possible cooperation in the
criminal procedure field.
203. Decree-Law No. 43/91 incorporates various
principles of model treaties concluded by the United Nations, including
that on mutual judicial assistance, as well as resolutions adopted
by the Eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders.
Article 10
204. Training, information and the development
of awareness about torture and other cruel, inhuman or degrading
treatment or punishment is one of the most important ways of ensuring
the effective prevention of such practices.
205. Paragraphs 63-97 of the previous report,
concerning information, publications, training and human rights
education, should be recalled here. The initiatives described in
that document were taken by the various entities in charge of disseminating
information and raising awareness of this crucial subject.
206. One example is the recent translation
into Portuguese of the Compendium of United Nations Standards and
Norms in Crime Prevention and Criminal Justice, prepared by the
Office for Documentation and Comparative Law of the Attorney-General
of the Republic for the widest possible dissemination among all
those involved with the criminal justice system, both at the national
level and in all Portuguese-speaking countries.
207. Also noteworthy is the preparation of
an information brochure on the rights of the detainee, following
on the work done on judicial cooperation within the European Union;
written in Portuguese, it has also been translated into English,
French, German, Spanish and Romanian. It is expected to be disseminated
in penal institutions housing individuals held in preventive custody
and in the Department of Criminal Research and Action of the Attorney-General's
Department.
Police officials
208. The recruitment and training of officials
in the various forces have evolved considerably, particularly with
respect to fundamental rights, freedoms and safeguards, following
the 1985 amendment of their organizational statutes.
209. Since 1989 in particular, as the result
of a change in the curriculum of the training courses for the police,
special attention has been given to the need to treat suspects and
detainees humanely.
210. The Public Security Police (PSP) now has
a university-level academy - the School of Higher Police Studies,
in Lisbon - for the training of senior police officers and offering
advanced courses on command and management as well as refresher
courses, continuing education classes and graduate courses to the
rank-and-file. Human rights, and fundamental rights, safeguards
and freedoms, play a leading role in the curriculum, primarily within
the legal sciences, social sciences and professional ethics fields.
211. It should also be noted that the School
frequently organizes debates, symposiums and seminars on human rights.
In March 1993, a seminar was held on public order and fundamental
rights. Several eminent law professors from Portuguese universities,
deputies, the Attorney-General of the Republic and the Ombudsman
(Provedor de Justiça) took part.
212. The PSP also has another training institution
- the Police Academy of Torres Novas - designed especially for the
basic and further training of the rank-and-file. Its activities,
whether in the organization and implementation of programmes in
training in ethics, or in the organization of symposiums, seminars
and debates, are intended to increase awareness about humanist principles
and values.
213. Due to the military organization and structure
of the National Republican Guard, since 1991 its officers have been
trained by the Military Academy, which created a special university-level
course in which law and the socio-political sciences play a very
important role (Decree-Law No. 173/91 of 11 May 1991, complemented
by Ministerial Decree No. 416-A/91 of 17 May 1991).
214. The Guard also has another training institution
- the Guard Academy - focusing particularly on the ethical, cultural,
physical, military and technical-professional training of the rank-and-file,
as well as on refresher, specialization and further training activities
for staff.
215. Courses pertaining to human rights and
to fundamental rights, safeguards and freedoms have been one of
the top concerns of the Minister of the Interior, senior officers
and the heads of the PSP and National Republican Guard training
institutions.
216. The training of Judicial Police officers
is the responsibility of the National Institute of Police and Criminal
Science.
217. Human rights play a significant role in
that training and are included in every level. The curriculum includes
disciplines intended to strengthen the subject. It also includes
the study of professional police ethics.
218. It is worth stressing that even in the
selection and recruitment of private security personnel (authorized
by Decree-Law No. 276/93 of 10 August 1993, as amended by Decree-Law
No. 138/94 of 23 May 1994) account must be taken of the candidate's
ability to adapt to the functions of private security.
219. The training of security personnel consists
of a technical-practical training course of at least 60 hours, which
includes the following subjects: basic legal concepts; rights, freedoms
and safeguards of citizens; the basics of criminal law, counterfeiting
and crimes against property in general; the basics of the organization
and duties of internal security forces and agencies and the functions
and legal limitations of security activities and their compatibility
with the public security system (decree of the Minister of the Interior
of 29 October 1993, which was published in the Official Journal
on 14 December 1993 and entered into force on 30 October 1993).
220. Decree-Law No. 174/93 of 12 May 1993 approved
the regulations governing warders.
221. Under those regulations, prison warders
are responsible for guaranteeing security and order in penal institutions.
222. Schooling is mandatory for prison warders,
who are selected through competitive examinations. Selection is
also based on completion of the training course conducted by the
Prison Training Centre.
223. Basic training is compulsory for aspiring
prison warders. They must also undergo a medical examination, an
interview and a psychological examination, as well as demonstrate
their physical fitness and general knowledge.
224. The training course, which lasts at least
four weeks, deals in particular with personal and social development,
justice and discipline, prison theory and practice, institutional
security, drugs and the prison system, and interpersonal relations,
and is complemented by lectures in other fields.
225. Decree-Law No. 346/91 of 18 September
1991 created a new job category at the higher technical level in
re-education within the Directorate-General of Prison Services,
with a view to enhancing those services and requiring higher levels
of qualification (a college degree) for eligilility.
Article 11
226. The general framework established for
the prevention and punishment of torture and other cruel, inhuman
or degrading treatment or punishment has already been outlined.
As previously stated, acts of torture are subject to criminal and
disciplinary sanctions. Effective and concrete monitoring of the
application of the law is done by several of the agencies mentioned
below.
Ombudsman
227. The office of the Provedor de Justiça
(mediator or ombudsman) is an independent institution whose primary
function is the defence and promotion of the rights, freedoms, safeguards
and legitimate interests of the citizens (see HRI/CORE/1/Add.20,
paras. 101-105).
228. Under Act No. 9/91 of 9 April 1991, which
describes the functions of the Provedor and lays down the rules
governing them, in conformity with article 23 of the Constitution:
- "1. Citizens may present complaints concerning acts or
omissions on the part of the public authorities to the Provedor
de Justiça. Although having no decision-making power, he
shall examine them and make such recommendations as are necessary
to the competent bodies in order to prevent and remedy any injustice.
- 2. The activities of the Provedor shall be independent of any
discretionary or judicial remedies provided for by the Constitution
and the laws.
- 3. The Provedor's Office shall be an independent organ. The
Provedor himself shall be appointed by the Assembly of the Republic.
- 4. The agencies and officials of the public authorities shall
cooperate with the Provedor in the performance of his duties."
229. It is therefore an independent and irremovable
public entity dedicated to the defence of the rights and legitimate
interests of the citizens, by the use of informal methods which
safeguard the legality and the justice of the administration. By
his mediatory action to protect human rights, the Provedor naturally
has an impact on the realization of the rights recognized by the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which are also reflected in the Constitution.
230. In accordance with the regulations governing
the office of the Provedor, citizens may submit to him complaints
about acts or omissions of the public authorities. The Provedor
submits the necessary recommendations to the competent bodies for
the prevention or remedying of any injustice.
231. The Provedor's activities may also be
exercised on his own initiative and are independent of the discretionary
and judicial remedies provided for in the Constitution and the law.
232. The Provedor is required:
- to submit recommendations to the competent
authorities for remedying any illegal or unjust acts or improving
the services of the administration;
- to point out any flaws he has uncovered in
the law and issue recommendations on its interpretation, amendment
or revocation, as well as suggestions for the drafting of new laws,
which are sent to the President of the Assembly of the Republic,
the Prime Minister and those ministers directly concerned and also,
if necessary, to the Presidents of the Regional Legislative Assemblies
and of the Governments of the Autonomous Regions;
- to deliver opinions on any questions put
to him by the Assembly of the Republic with regard to his activities;
- to ensure the dissemination of information
on fundamental rights and freedoms, their contents and value, and
the purposes of the activities of the Provedor, the courses of action
available to him and the procedures for appealing to him;
- to ask for an assessment of the legality
or unconstitutionality of any statutory instrument.
233. In the performance of his duties, the
Provedor may:
(a) Carry out inspection tours, with or without
notice, of any branch of the central, regional or local administration,
including public agencies and civilian or military prisons or of
any authority under their control, hear the respective agencies
and officials and request any information or documents which he
deems necessary;
(b) Conduct whatever investigations and inquiries
he deems necessary or appropriate, and, with regard to the obtaining
and production of evidence, undertake any appropriate procedure,
as along as it does not infringe the legitimate rights and interests
of the citizens;
(c) Seek, in cooperation with the competent
bodies and departments, the most satisfactory means of safeguarding
the legitimate interests of the citizens and improving the work
of the administration.
234. The Provedor may order the publication
of press releases or information on any findings reached, making
use of the media where necessary. In addition, he submits annual
reports on his activities to the Assembly of the Republic. These
reports, which are published in the Official Journal of the Assembly,
include statistical data on the number and nature of complaints
filed, the complaints of unconstitutionality submitted and any recommendations
made, as well as the action taken on them.
235. In recent years the Provedor has systematically
monitored the work of the different police forces by launching inquiries
into their activities, either on his own initiative or following
complaints filed by citizens.
236. Following the adoption of Act No. 9/91,
it proved necessary to adapt the organizational structure of the
Provedoria de Justiça so as to lend the technical and administrative
support necessary for the proper performance of its activities.
The Provedoria de Justiça Organization Act was promulgated
by Decree-Law No. 279/93 of 11 August 1993.
Right of petition
237. Under article 52 of the Constitution,
all citizens may, individually or collectively, submit to the organs
of supreme authority or to any other authority, petitions, representations,
claims or complaints for the purpose of defending their rights,
the Constitution, the law or the general interest.
238. Act No. 43/90 of 10 August 1990, as amended
by Act No. 5/93 of 1 March 1993, regulates and safeguards the exercise
of the right of petition through the submission of petitions, representations,
claims or complaints to the organs of supreme authority or to any
other public authority except the courts.
239. The request may also be submitted to the
Commission on Rights, Freedoms and Safeguards of the Assembly of
the Republic, which may conduct the appropriate inquiries, as well
as refer them to the competent authorities.
240. The role of the Portuguese Association
for the Support of Victims, referred to above (see paras. 38-40),
should also be stressed.
Provisions on the custody and treatment
of arrested, detained or imprisoned persons
241. With regard to provisions on the custody
and treatment of persons arrested, detained or imprisoned in any
manner whatsoever, the Prisons Act (Decree-Law No. 265/79 of 1 August
1979, as amended by Decree-Laws Nos. 49/80 of 22 March 1980 and
414/85 of 18 October 1985), currently in force, has not been amended
since the date of submission of the initial report.
242. However, studies for a possible revision
of Decree-Law No. 265/79 are under way, particularly with regard
to the correspondence of detainees and the strengthening of their
safeguards when disciplinary measures are taken.
243. One major concern is to improve the conditions
of detention in penal institutions, particularly by increasing their
capacity (opening a new prison at Funchal) and medical assistance,
principally by instituting a support programme specifically for
drug addicts.
244. The Prison Act calls for the continued
enjoyment by detainees of their fundamental human rights, except
for those limitations arising from a sentence or from the needs
of institutional order and security (art. 4, para. 1). Accordingly,
their labour is remunerated, they receive social security benefits
and, to the extent possible, they enjoy the right to culture and
to the integral development of their personality (art. 4, para.
2).
245. Article 6, paragraph 3, of Decree-Law
No. 265/79 establishes that a detainee must enter a prison out of
the sight of the other prisoners if this is necessary to protect
his privacy. The detainee must be informed of the legal and regulatory
provisions pertaining to his conduct, and he is guaranteed the right
to inform his family or any legal representatives about his situation.
Within a maximum period of 72 hours following his admission to the
prison, he must undergo a medical examination to identify any physical
or mental illnesses or abnormalities which might justify special
or immediate precautions.
246. The principle of respect for the dignity
of detainees is found in other provisions, such as the right to
visits (art. 29 et seq.), the right to protection against arbitrary
or illegal interference with correspondence (art. 40 et seq.), the
right to choose an occupation (art. 63 et seq.), the right to privacy
(art. 116) and the right to appeal to the European Court of Human
Rights (art. 151).
Pre-trial detention
247. Pre-trial detention is governed by the
special rules of article 209 et seq. of the Prison Act.
248. Under those provisions, the pre-trial
detainee is presumed innocent and must be treated accordingly (art.
209, para. 1). Pre-trial detention is carried out in such a way
as to preclude any restriction of freedom not strictly necessary
for the purpose of the detention or for maintaining institutional
discipline, security and order (art. 209, para. 2).
249. Article 210, paragraph 1, stipulates that
pre-trial detainees should normally be held together with small
groups with other detainees during the day, and in isolation at
night. Under paragraph 2, this regime does not apply to detainees:
(a) Who are being held incommunicado, under
the terms of the Act;
(b) Who make such a request to the prison governor,
specifically and in writing;
(c) Who do not adapt to the normal regime or
who are presumed to be particularly dangerous on account of the
acts leading to their detention, or on account of their criminal
record;
(d) Whose physical and psychological state
does not allow it.
250. In the above-mentioned cases, the detainee
may be placed in another type of institution, with the authorization
of the Directorate-General of Prison Services, but the pre-trial
detention will continue and, as early as possible, the detainee
must be separated from other categories of detainees (para. 5).
251. Prisoners under age 25 who are being held
in pre-trial detention must be placed as soon as possible in an
appropriate institution, and their custody must be primarily educational
in nature (art. 216).
252. Generally, detainees may receive visits
every day, as often as possible, taking into account the conditions
laid down in the internal rules and regulations (art. 212); wear
their own clothing (art. 213); and receive, at their own expense,
food prepared outside the institution (art. 214); they may not be
compelled to work (art. 215, para. 1), but they may, at their own
request, be authorized to work, attend training courses and participate
in continuing vocational education, as well as in any other educational,
cultural, recreational or sporting activities organized by the institution
(art. 215, para. 2).
253. Article 216-A (incorporated into Decree-Law
No. 265/79, under Decree-Law No. 49/80) stipulates that the regulations
governing custodial sentence are applicable during pre-trial detention,
except where otherwise provided by Act, in particular the general
regulations in force concerning visits and correspondence.
Special security measures
254. Article 111 of the Prison Act prescribes
that special security measures may be applied to detainees if their
conduct or psychological state suggests that they may try to commit
acts of violence on themselves, other individuals or property.
255. Authorization of these measures is granted
if it is impossible to prevent escape attempts by any other means
or in the event of a serious disturbance of institutional order
and security (para. 3). Nevertheless, the application of special
security measures is maintained only as long as the danger giving
rise to their application exists (para. 4). Paragraph 5 prohibits
such measures from being used as disciplinary measures.
256. The governor of the institution is responsible
for verifying in each case the actual existence of the conditions
which warrant the application of the measures, without prejudice
to the administrative and supervisory powers of the Director-General
of Prison Services and the Minister of Justice, with the exception
of the right of pre-trial detainees and convicted prisoners to appear
before the judge of the court issuing the sentence (art. 139).
257. With regard to the special security cell
confinement measure, article 113 prescribes that a detainee may
not be isolated in certain cells except for reasons to do with his
own personality, or when all other special security measures have
proved ineffective or inadequate for dealing with the gravity or
nature of the situation (para. 1).
258. The maximum period during which a detainee
may be held in uninterrupted isolation in a special security cell
is one month. Nevertheless, the consent of the Directorate-General
of Prison Services is required in order to isolate a detainee in
a special security cell for more than 15 consecutive days (art.
113, para. 4). Such isolation must always be intended solely to
restore the situation to normal (para. 2). If after that period
the conditions leading to the application of the special measure
persist, the detainee must be transferred to a high-security institution
or section (para. 3).
259. Under article 113, paragraph 5, "the
periods mentioned in the preceding paragraphs may not be interrupted
on the grounds that the detainee is participating in religious acts
or recreational activities".
260. All detainees placed in a special security
cell must as soon as possible be examined by the institution's physician,
who must report to the governor on the detainees' physical and mental
state of health and, if necessary, on the need to change the length
of the punishment (para. 6). The special security cell must have
the same characteristics as all other cells in the institution,
except for security-related characteristics (para. 7).
261. In conclusion, during detention no restrictions
may be placed on the fundamental rights of detainees unless they
are absolutely necessary, appropriate and in proportion to the requirements
of institutional order and security.
The use of force
262. Articles 122 and 124 establish proportionality
as the rule in all matters pertaining to the use of force, which
must be limited to what is absolutely necessary and only for reasons
related to the requirements of security and order. The use of force
has always been followed by a written investigation into the circumstances.
263. Article 125 requires that prior warning
should be given, with a view to intimidation, when physical force
is employed.
264. Article 126 lays down the general rules
on the use of firearms by prison personnel or persons working in
the prisons. The use of firearms in detention centres for young
persons is also prohibited (art. 20 of Decree-Law No. 90/83 of 16
February 1983).
265. Provision is made for the use of force
in health care. Under article 127, it is prohibited to compel a
detainee to undergo medical examinations, treatment or feeding unless
his life or health is in danger. Such measures may be prescribed
and applied only under medical supervision.
Aliens
266. Decree-Law No. 59/93 of 3 March 1993,
on the entry, residence, exit and expulsion of aliens from national
territory, calls for the establishment of temporary settlement centres
to house aliens who:
(a) Have been sentenced to an accessory penalty
of expulsion;
(b) Have breached the obligation to present
themselves periodically to the authorities;
(c) Are without resources;
(d) Are suspected of not observing the expulsion
decision or of jeopardising other fundamental interests beyond those
which gave rise to the expulsion;
(e) Have been refused the right to enter Portuguese
territory (arts. 75 and 89).
267. The procedure for receiving aliens or
stateless persons in the temporary settlement centres is set forth
in Act No. 34/94 of 14 September 1994, which calls for the additional
application to aliens, placed in them for reasons of security of
the special rules for pre-trial detention called for by the Prison
Act.
Article 12
268. Under article 12 of the Convention, each
State party shall ensure that its competent authorities proceed
to a prompt and impartial investigation, wherever there is reasonable
ground to believe that an act of torture has been committed in any
territory under its jurisdiction.
The right to lodge a complaint
269. Any victim of ill-treatment, abuse of
authority or of excessive force is entitled to lodge a complaint,
which has to be accepted.
270. The complaint may be lodged with either
the administrative or judicial authorities, or simultaneously with
both. The acts in question are severely dealt with, either through
internal police disciplinary measures or through criminal proceedings
before the competent courts.
The police forces
271. Responsibility for deciding to institute
disciplinary proceedings and for the proceedings themselves lies
with the security forces' hierarchy, including the competent ministry;
the possibility of appeal to the competent courts is always available.
272. Even if no complaint has been lodged,
disciplinary proceedings may be instituted if it is learned, by
any means whatsoever, that police officers have violated fundamental
individual rights. The police disciplinary regulations referred
to stipulate that disciplinary proceedings are mandatory whenever
hierarchy is made aware of any acts liable to require disciplinary
proceedings against subordinates.
273. There are no specific penal or disciplinary
regulations for the National Republican Guard, although its own
Organizational Act (Decree-Law No. 231/93, of 26 June 1993) refers
to military regulations and discipline, as approved by Decree-Law
No. 142/77, of 9 April 1977.
274. The disciplinary regulations of the Public
Security Police (PSP) were adopted by Act No. 7/90, of 20 February
1990. The regulations stipulate that in carrying out their duties,
PSP officers may never abuse their authority or exceed the limits
strictly necessary for the performance of their duties, provided
the use of force or of any other means likely to limit the rights
of citizens is indispensable.
275. In performing their duties, PSP officers
may not invoke their authority, rank or position in order to exert
any form of pressure.
276. Public security police officers who fail
to comply with legal requirements when performing their duties are
liable to the appropriate disciplinary and accessory penalties according
to the circumstances. The penalties vary in severity and are applied
in accordance with the seriousness of the act. Thus, after a spoken
or written reprimand, the penalties range from a fine of up to 30
days' pay, 20 to 120 days' suspension, or 121 to 240 days' suspension,
to mandatory retirement or dismissal.
277. Failure to observe the specific obligation
not to practise acts of torture or, inhuman, cruel or degrading
treatment, laid down by article 91 of the Judicial Police Organization
Act, as approved by Decree-Law No. 295-A/90, of 21 September 1990,
is punishable under the force's disciplinary regulations, as approved
by Decree-Law No. 196/94, of 21 July 1994. Police officers guilty
of inhuman, degrading or discriminatory acts or of harassing individuals
under their protection or in their charge, arrogation of authority
not vested in them by law, or abuse of the authority with which
they are vested, may be suspended, compelled to take retirement
or dismissed.
Action by the Attorney-General and the Public
Prosecutor
278. Under article 152 of the Judicial Police
Organization Act, responsibility for the Judicial Police's operational
conduct lies with the Attorney-General, who may request reports
on the force's conduct and order an investigation of it in order
to verify compliance with the law, particularly as regards protection
of the rights, freedoms and safeguards of citizens and protection
of society against crime.
279. On the basis of the information obtained
or the investigations conducted, the Attorney-General may issue
directives or general instructions regarding the conduct of the
Judicial Police in the sphere of crime prevention and investigation,
and institute criminal proceedings against police officers suspected
of specific offences.
280. Decisions to institute criminal proceedings
and their conduct are the responsibility of the judicial authorities.
The examination proceedings which begin criminal proceedings are
the responsibility of the Public Prosecutor, the administrative
authorities being required to cooperate in the inquiry.
281. In conformity with article 122, paragraph
5, of Decree-Law No. 265/79, of 1 August 1979, whenever disciplinary
measures are used against detainees, an investigation, followed
by a written report on the circumstances that gave rise to such
measures, is required.
282. The following table provides statistics
on the complaints lodged in 1990 and 1991 concerning ill-treatment
by police officers (these are the only years for which statistics
are available).
| National Republican Guard |
| 19901991 |
| Complaints lodged3857 |
| Complaints dismissed through internal procedure1319 |
| Disciplinary proceedings instituted on the basis
of complaints1423 |
| Disciplinary proceedings dismissed for lack of
grounds1421 |
| Disciplinary proceedings leading to punishment
of those concerned 2 2 |
| Criminal proceedings instituted on the basis of
complaints1115 |
| Criminal proceedings dismissed on the basis of
the complaints 7 7 |
| Criminal proceedings pending 312 |
| Criminal proceedings having led to the conviction
of the accused military personnel 1 - |
| Public Security Police |
| 19901991 |
| Complaints lodged107124 |
| Complaints dismissed 52 36 |
| Disciplinary proceedings instituted on the basis
of the complaints107124 |
| Criminal proceedings instituted on the basis of
the complaints 37 50 |
| Disciplinary convictions 24 9 |
| Criminal convictions 7 3 |
Disciplinary measures against prison warders
283. Whenever an offence is committed, disciplinary
and penal responsibility must be determined.
284. If a death occurs, an autopsy is performed
to determine the exact causes.
285. In conformity with the above provisions,
the Department of Prison Services always conducts a rigorous inquiry
whenever there is any suspicion that acts of torture or ill-treatment
have been committed by prison officials, including prison warders.
Article 13
286. Article 13 of the Convention stipulates
that each State Party shall ensure that any individual who alleges
he has been subjected to torture has the right to complain to the
competent authorities, who are required promptly and impartially
to examine his complaint.
287. Article 20 of the Portuguese Constitution
guarantees the right of everyone to access to the courts to defend
his or her rights. Justice may not be denied to a person for lack
of financial resources. All persons are entitled by law to legal
information and counsel, as well as to legal aid.
288. Furthermore, article 21 of the Constitution,
entitled "the right to resist" stipulates that "anyone
shall have the right to resist an order that violates his rights,
liberties or safeguards, and to repel by force any aggression when
recourse to public authority is impossible".
289. Decree-Law No. 387-B/87 of 29 December
1987 defines the conditions of access to the law and the courts
in order to ensure that no one encounters any difficulty or is prevented,
because of social or cultural status or lack of means, from acquainting
himself with, asserting or defending his rights.
290. These goals are achieved by means of systematic
measures and machinery to provide legal information and protection.
Legal protection takes the form of legal counselling and legal aid.
291. In order to put into practice the legal
protection afforded by the above Decree-Law through legal counselling,
legal counselling offices (Gabinetes de consulta jurídica)
/ The following legal counselling offices have so far been established:
Lisbon and Porto - Ministerial decision No. 1102/89, of 26 December
1989; Guimarães - Ministerial decision No. 1231-A/90, of
26 December 1990; Coimbra - Ministerial decision No. 421/91, of
21 May 1991; Évora - Ministerial decision No. 993/91, of
30 September 1991; Lamego - Ministerial decision No. 1000/91, of
1 October 1991; Covilhà - Ministerial decision No. 1207/92,
of 23 December 1992; Ponta Delgada - Ministerial decision No. 679/93,
of 20 July 1993; Vila do Conde - Ministerial decision No. 741/93,
of 16 August 1993; Faro - Ministerial decision No. 1256/93, of 9
December 1993; Angra do Heroismo - Ministerial decision No. 506/95,
of 27 May 1995 and Vila Nova de Gara - Ministerial decision No.
506/95, of 27 May 1995./ have been established through an agreement
between the Bar Association and the Ministry of Justice. The offices
are responsible for providing legal guidance and counselling to
anyone prevented by lack of means from paying lawyers' fees.
292. Legal aid includes total or partial exemption
from advance court and legal fees or their deferral, and from lawyers'
fees.
293. The right to lodge a complaint to initiate
criminal and disciplinary proceedings against offenders is thus
established and guaranteed.
294. Application to the Provedor is also provided
for and guaranteed as described above.
295. The right of detainees to report the facts,
to lodge a complaint and to appeal are described in paragraph 189
of the initial report. Decree-Law No. 265/79, of 1 August 1979,
referred to in that paragraph, has not been amended since then.
296. As far as appropriate measures to ensure
the protection of plaintiffs and witnesses against ill-treatment
or intimidation are concerned, the Portuguese legal system makes
no specific provision for the protection of judges, prosecutors,
judicial officials, jurors, lawyers, witnesses, experts and criminals
who turn State's evidence against criminal reprisals or intimidation.
However, attention is drawn to the legislation referred to in paragraphs
292 to 313 regarding article 14 and concerning the right of the
victims of violent crime and of civil or military officials to compensation.
297. However, the absence of specific legal
provisions for the protection of such persons does not of course
mean that it is impossible to adopt practical measures to do so,
which may be decided, as appropriate, at the administrative level.
298. It should also be mentioned that Decree-Law
No. 43/91 of 22 August 1991, which authorizes international cooperation
in criminal matters in the absence of a treaty or international
convention binding on the Portuguese State in this sphere and establishes
domestic regulations defining the cooperation procedure to be followed
and the competent authorities, is still in force and has not been
amended.
299. Pursuant to this instrument, and in particular
its article 144, when international assistance is requested, Portugal
may reject an application for extradition whenever the measures
necessary to ensure his or her security are not guaranteed.
Article 14
300. There are several ways in which victims
of violence may obtain compensation under Portuguese law. The basic
rule is contained in article 483 of the Civil Code, under which
anyone who wilfully or negligently causes injury to another person
must pay compensation for the injury suffered. The law also provides
for risk liability.
The liability of the authorities
301. Where the authorities are concerned, article
22 of the Constitution, entitled "The liability of the authorities"
defines their liability in the following terms:
- "The State and other public bodies shall bear civil liability
jointly and severally with the members of their agencies, their
officials or employees, for any act or omission committed in the
discharge of their duties or in connection therewith, which entails
a violation of the rights, liberties and guarantees of another
person or injury to another person."
302. Similarly, article 2 of Decree-Law No.
48.051 of 31 November 1967 determines the extracontractual liability
of the State for acts of public administration, by determining that
the State and other public legal persons shall bear civil liability
towards third parties for any violations of their rights or of the
legal provisions intended to protect their interests if such violations
are attributable to unlawful acts committed by their institutions
or administrative agents in the discharge of their duties. The State's
responsibility is engaged whenever a State employee is guilty of
an unlawful act that causes injury to anyone, or whenever the State
commits an abuse in the exercise of its authority.
Civil liability deriving from a crime
303. Portuguese criminal law and procedure
provide for civil liability deriving from a crime (Penal Code, art.
129).
304. As regards the obligation to provide restitution,
redress and compensation, in conformity with article 71 of the Code
of Criminal Procedure applications for civil indemnification in
respect of a crime must as a rule be brought before the court which
is competent to hear the criminal offence. Acquittal in the criminal
proceedings does not necessarily entail refusal of the right to
compensation (article 377 of the Code). The rule makes it mandatory
for the criminal case to be heard jointly with the indemnification
proceedings for damages caused to the victim by the offender.
Compensation of victims
305. The compensation awarded to victims in
criminal proceedings is paid by the offender, unless he is unable
to do so because of insolvency or if his abode is unknown.
306. Article 130 of the Penal Code stipulates
that special legislation shall apply to cases in which compensation
cannot be paid by the offender. However, in the absence of such
legislation, paragraph 2 of the same article stipulates that the
court may, at the request of the injured party, assign as compensation
for the injury caused, the property forfeited to the State or the
proceeds from their sale, up to the value of the injury caused.
If the injury caused by the offence is serious enough to leave the
injured party in need and if the offender is unlikely to pay compensation,
the court may also assign to the injured party all or part of any
fine paid, up to the value of the injury. The State remains the
beneficiary of the injured party's right to compensation for any
sums it may have paid.
307. It should also be emphasized that in determining
the penalty and its length or amount, / Penal Code, article 71./
the court considers, inter alia, compensation for the injury caused
to the victim, whenever it orders either a temporary stay of proceedings,
/ Code of Criminal Procedure, article 281./ a stay of sentence,
/ Penal Code, articles 50 and 51./ probation / Penal Code, articles
53 and 54./ or a caution, / Penal Code, article 59./ or whenever
it mitigates the sentence / Penal Code, article 73./ or orders an
absolute discharge. / Penal Code, article 75./
308. Furthermore, in conformity with the act
on custodial sentences (Decree-Law No. 265/79 of 1 August 1979,
article 72), part of the prisoner's wages may be assigned to pay
any compensation awarded against him.
309. In addition, legal rehabilitation will
only be granted to an applicant if he provides documentary or any
other evidence that he has paid any compensation he has been ordered
to pay (Decree-Law No. 783/76 of 29 October 1976 on the enforcement
of penalties, article 101).
310. In respect of the actual sentence, in
cases in which there are grounds for conditional release, it is
the practice of the courts responsible for the enforcement of sentences
to make release subject to redress or payment of compensation to
the victim by the offender.
311. It should be emphasized that the practice
of the courts is to append to non-custodial sentences injunctions
relating to the victim's right to compensation.
Victims of violent crime
312. In conformity with article 130 of the
Penal Code, Decree-Law No. 423/91 of 30 October 1991 determines
the legal regime for the protection of the victims of violent crime.
313. Persons sustaining serious bodily injury
as a result of wilful violence and the dependants of persons who
have died as a result of such acts may request the State to award
them compensation whenever:
(a) The injury has caused at least 30 days'
incapacity for work, permanent incapacity or death;
(b) The injury has seriously affected the standard
of living of the victim or of his dependants;
(c) Compensation cannot be provided by any
other means; payment of compensation for the injury is not possible
through the compensatory judgement procedure in respect of an application
submitted pursuant to articles 71 to 84 of the Penal Code or if
there are serious grounds to believe that the offender and persons
who bear civil liability will not pay the compensation and it is
not possible to obtain effective and adequate compensation by any
other means.
314. The compensation will be awarded even
if the offender is unknown or cannot be prosecuted or punished.
315. Persons who voluntarily assist the victim
or cooperate with the authorities in preventing an offence or in
pursuing or detaining the offender may also apply for compensation,
provided the conditions set out above are met. Such compensation
is independent of any compensation awarded to the victims of the
offence.
316. Compensation may be reduced or the application
dismissed on account of the behaviour of the victim or applicant
prior to, during or after the offence, or of his relations with
the offender, or if compensation would be contrary to the interests
of justice and public order.
317. Compensation paid by the State is limited
to material damage caused by the injury and will be equitably determined.
The maximum amount payable to each injured party is determined in
the light of article 508, paragraphs 1 and 2, of the Civil Code,
in case of death or injury. Any monies received from any other source,
either from the offender himself or from social security will be
taken into account. Life or personal accident insurance will only
apply to the extent that equity requires.
318. Applications for compensation payable
by the State must be submitted within one year of the date of the
offence.
319. The rights of injured parties in respect
of the perpetrators of acts of willful violence and of persons with
mere civil liability devolve upon the State, to the extent of the
compensation provided.
320. Proceedings for awarding compensation
by the State are exempt from advance legal fees and court costs.
321. It should be pointed out that the basis
for State compensation of victims is the notion of social solidarity;
the theory of State responsibility does not apply. State responsibility
for combating crime is limited to providing means, and not results;
it is a minimum regime which is not designed to replace other remedies
that may be available to victims.
322. The decision to award compensation is
the responsibility of the Minister of Justice, in compliance with
the instructions issued by the Commission set up for that purpose.
Regulatory Decree No. 4/93 of 22 February 1993 stipulates the composition
and functions of the Commission. / The Commission began operating
on 15 April 1993 (Joint Decision No. 7/93 of 10 March 1993, published
in Official Gazette No. 82, II of 7 April)./
323. The Commission comprises a judge appointed
by the Supreme Council of the Judiciary, a lawyer appointed by the
Bar Association and a senior official from the Ministry of Justice,
appointed by the Minister of Justice. The Commission's chairman
is preferably chosen from among the judges of the Court of Appeal.
324. According to the Commission, / Comments
in the 13 April 1995 issue of the O Semanario weekly magazine by
the representative of the Bar on the Commission on Compensation
of the Victims of Violent Crime./ "there have been few applications
for this type of compensation. We work on a case-by-case basis and
there have so far been no restrictions". In addition, "where
violent crime is concerned, one should perhaps expect an increase
in the number of complaints: the amount of compensation awarded
has not been higher because the number of applications has been
low".
325. In 1993, the Commission considered 62
applications for compensation concerning a total of 120 applicants;
it awarded compensation in 29 cases to 64 applicants.
326. In 1994, the number of applications fell
to 52 and the number of applicants to 97, 76 of whom were the heirs
of crime victims. A total of 46 rulings were issued and compensation
amounting to 1,500,000 escudos awarded in two cases. Compensation
amounting to 11,500,000 escudos was awarded in seven other cases.
327. In this way, the State has already paid
out some 70 million escudos in compensation to the victims of violent
crimes. / Ibid./
328. At the time when the above legislation
was issued, Portugal had not yet ratified the European Convention
on the Compensation of Victims of Violent Crimes, drawn up by the
Council of Europe, although in drafting the legislation, it had
drawn on resolution (77)27, of the Committee of Ministers of the
Council of Europe, on compensation for the victims of criminal offences.
Compensation of civil and military officials
329. Decree-Law No. 423/91 does not apply to
situations covered by Decree-Law No. 324/85 of 6 August 1985, which
also provides for the payment of compensation to civil or military
officials who have, in the performance or by virtue of their duties,
been victims either of intimidatory criminal acts, or of reprisals
putting their lives, physical integrity, or freedom at risk or involving
major property damage. The Decree-Law is more restrictive than Decree-Law
No. 423/91 as it applies only to public officials. Nevertheless,
it is broader in scope as it also makes provision for compensation
for major damage to property. The compensation, which is awarded
on an a case-by-case basis, by joint decision of the Prime Minister,
the Minister of Finance and the submitting Minister, may also be
paid to the victim's family or to his dependents, if they have also
suffered as a result of the criminal act. / Before Decree-Law No.
215/87 of 29 May 1987 came into force, compensation was awarded
by decision of the Council of Ministers./
Compensation of jurors
330. Decree-Law No. 387-A/87 of 29 December
1987 extends the applicability of the regime introduced by Decree-Law
No. 324/85 to jurors when, in the performance of their duties or
on account thereof, they are victims of criminal acts, perpetrated
for example by criminal and terrorist groups in order to intimidate
them or as a form of reprisal.
Compensation of mayors
331. A similar conclusion was reached in the
finding of the Attorney-General's office, published in the Diário
da República, II series, No. 168, of 24 July 1987 regarding
mayors (Presidente da Câmara Municipal), according to which,
under Decree-Law 324/85, mayors are classed as State employees and
consequently entitled to compensation on the same terms as public
officials who are victims of violent crimes.
Compensation of women
332. In the same connection, Act No. 61/91
of 13 August 1991, already referred to, is designed to strengthen
legal protection for female victims of violence.
333. Where compensation for female victims
of violence is concerned, the Act refers to Decree-Law No. 423/91,
of 30 October 1991, establishing a regime vesting in the Government,
i.e. the Minister of Justice assisted by an ad hoc commission, competent
to award such compensation.
Article 15
334. Article 32, paragraph 6, of the Constitution
stipulates:
- "Any evidence obtained through torture, coercion, violation
of the physical or moral integrity of the individual, or wrongful
interference in private life, the home, correspondence or telecommunications
shall be null and void."
335. Further to the constitutional guarantees,
article 126 of the Code of Penal Procedure stipulates that any evidence
obtained through torture, coercion or violation of the physical
or moral integrity of an individual is null and void and may in
no case be used.
336. In conformity with paragraph 2 of the
same article, any evidence obtained by the following means constitutes
a violation of the physical or moral integrity of individuals, even
if they have given their consent:
- "(a) Interference with free will or the capacity to take
decisions through ill-treatment, physical injury and the use of
any means whatsoever such as hypnosis or other cruel or fraudulent
procedures;
- (b) Interference, by any means whatsoever, with a person's memory
or judgement;
- (d) The use of threats or illegal methods or refusal of a lawful
entitlement or subjecting it to conditions;
- (e) The promise of an illegal advantage."
337. Under paragraph 3, evidence obtained by
any violation of privacy, the home, correspondence or telecommunications
without the consent of the interested party is null and void.
338. Under article 140, paragraph 1, if the
accused is questioned he must be allowed freedom of movement, unless
the circumstances require otherwise. The purpose of this requirement
is to enhance protection against acts of torture or other cruel,
inhuman or degrading treatment.
Article 16
339. As has already been mentioned in the section
on article 4 of the Convention in connection with the provisions
of the new Penal Code, not only torture but cruel, degrading or
inhuman treatment or punishment, are criminalized.
340. The cases referred to throughout this
report are not restricted solely to torture as defined in article
1 of the Convention, since the majority of them constitute violations
of physical integrity which are punishable, under articles 243 and
244 of the new Penal Code.
341. The Portuguese legal system effectively
prohibits any acts that might constitute cruel, inhuman or degrading
treatment.
Annexes*
Legislation
1. Constitution of the Portuguese Republic
2. Decree-Law No. 48051 of 21 November 1967
- Extracontractual liability of the State for acts of public administration
3. Decree-Law No. 265/79 of 1 August 1979 -
Prisons Act
4. Decree-Law No. 49/80 of 22 March 1980 -
Amending Decree-Law No. 265/79 of 1 August 1979
5. Decree-Law No. 400/82 of 23 September 1982
- Penal Code
6. Act No. 29/82 of 11 December 1982 - National
Defence and Armed Forces Act
7. Decree-Law No. 90/83 of 16 February 1983
- Juvenile Detention Centres
8. Decree-Law No. 324/85 of 6 August 1985 -
Compensation of officials who are victims of violence
9. Act No. 44/86 of 30 September 1986 - State
of Siege and State of Emergency
10. Decree-Law No. 48/87 of 29 January 1987
- Incorporating jurors as State employees under the terms and subject
to the provisions of Decree-Law No. 324/85 of 6 August 1985
11. Decree-Law No. 78/87 of 17 February 1987
- Code of Criminal Procedure
12. Decree-Law No. 387-A/87 of 29 December
1987 - Extending to jurors the regime introduced by Decree-Law No.
324/85
13. Decree-Law No. 387-B/87 of 29 December
1987 - Legal aid and assistance
14. Decree-Law No. 101-A/88 of 26 March 1988
- Amending the provisions of the Penal Code
15. Resolution 11/88 of 21 May 1988 - Adoption
by the Portuguese Parliament of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
16. Decree-Law No. 391/88 of 26 October 1988
- Legal aid and assistance
* It will be possible to consult these documents
in the files of the High Commissioner/Centre for Human Rights when
received.
17. Order No. 32/90 of 17 April 1990 - "Citizens
and justice" programme
18. Decree-Law No. 295-A/90 of 21 September
1990 - Judicial Police Organization Act
19. Act No. 9/91 of 9 April 1991 - Statutory
regulations pertaining to the ombudsman
20. Decree-Law No. 43/91 of 22 January 1991
- International legal cooperation in criminal matters
21. Decree-Law No. 61/91 of 13 August 1991
- Special protection for women victims of violence
22. Act No. 113/91 of 29 August 1991 - Basic
Civil Protection Act
23. Decree-Law No. 346/91 of 18 September 1991
- Defining the function of specialists in re-education within the
Directorate-General of Prisons
24. Decree-Law No. 423/91 of 30 October 1991
- Special protection for the victims of violent crime
25. Resolution 30/92 of 18 August 1992 - Family
and child support project
26. Regulatory Decree No. 4/93 of 22 February
1993 - Regulations on the establishment and operation of the Commission
for processing applications for compensation
27. Act No. 6/93 of 1 March 1993 - Amendments
to the regime pertaining to the right of petition
28. Decree-Law No. 59/93 of 3 March 1993 -
Entry, exit, residence and deportation of aliens
29. Resolution 8/93 of 20 April 1993 of the
Assembly of the Republic -Approval of the Convention on the Extradition
of Convicted Persons
30. Act No. 12/93 of 22 April 1993 - Removal
and transplant of organs and human tissue
31. Decree-Law No. 174/93 of 12 May 1993 -
Statutory regulations pertaining to prison warders
32. Decree-Law No. 231/93 of 26 June 1993 -
Organization of the National Republican Guard
33. Decree-Law No. 265/93 of 31 July 1993 -
Statutory regulations pertaining to the military personnel of the
National Republican Guard
34. Decree-Law No. 276/93 of 10 August 1993
- Selection and recruitment of private security personnel
35. Decree-Law No. 279/93 of 11 August 1993
- Statutory regulations pertaining to the Ombudsman's Office
36. Act No. 70/93 of 29 September 1993 - Right
of asylum
37. Decree-Law No. 399/93 of 3 December 1993
- Control, purchase and possession of firearms
38. Decree-Law No. 97/94 of 9 April 1994 -
Rules pertaining to clinical experiments on human beings
39. Decree-Law No. 138/94 of 23 May 1994 -
Amendment of Act No. 276/93 relating to the selection and recruitment
of private security personnel
40. Act No. 19/94 of 24 May 1994 - Regulations
governing non-governmental cooperation organizations
41. Presidential decree No. 55/94 of 1 June
1994, published in issue No. 160 of the Official Journal of 13 July
1994 - Agreement between the States members of the Community concerning
the transmission of criminal proceedings
42. Presidential decree No. 56/94 of 1 June
1994, published in issue No. 161 of the Official Journal of 14 July
1994 - European Convention on Mutual Assistance in Criminal Matters
44. Presidential decree No. 65/94 of 1 June
1994, published in issue No. 186 of the Official Journal, of 12
August 1994 - European Convention on the supervision of Conditionally
Sentenced or Conditionally Released Offenders
45. Decree-Law No. 167/94 of 15 June 1994 -
Regulating the organization of the judicial service - permanent
courts
46. Decree-Law No. 196/94 of 21 July 1994 -
Judicial Police disciplinary regulations
47. Act No. 34/94 of 14 September 1994 - Defining
the regime for accommodating aliens or stateless persons in temporary
accommodation centres
48. Act No. 35/94 of 15 September 1994 - Government
authorization for the amendment of the Penal Code
49. Act No. 36/94 of 29 September 1994 - Amendment
of the Judicial Police Organization Act
50. Decree-Law No. 321/94 of 29 December 1994
- Public Security Police Organization Act
51. Decree-Law No. 48/95 of 15 March 1995 -
Approving the new Penal Code
52. Decree-Law No. 58/95 of 31 March 1995 -
Amendment of the Protection of Minors Act
53. Resolution 22/95 of the Assembly of the
Republic, dated 11 April 1995 -Approving the Convention among the
Member States of the European Communities relating to the application
of the principle "ne bis in idem"
54. Presidential Decree No. 47/95 of 11 April
1995 - Ratification of the Convention among the Member States of
the European Community on the application of the principle "ne
bis in idem"
55. Decree-Law No. 227/95 of 11 September 1995
- Establishing the Inspecção-Geral da Administração
Interna
56. Ministerial Order No. 4/MJ/96 of 12 January
1996 - Establishing the responsibility of the Departments of the
Ministry of Justice to cooperate with and provide information to
certain non-governmental organizations
|
