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Relatórios
Apresentados por Portugal aos Órgãos de Controlo da
Aplicação dos Tratados das Nações Unidas
em Matéria de Direitos Humanos*
Third periodic reports of States parties due
in 1998 : Portugal. 28/06/99. CAT/C/44/Add.7 (State Party Report
)
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Third periodic reports of States parties
due in 1998
Addendum PORTUGAL*
[2 February 1999]
* 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 documents CAT/C/SR.166 and 167 and Official
Records of the General Assembly, forty-ninth session, Supplement
No. 44 (A/49/44, paras. 106-117). The second periodic report of
Portugal is contained in document CAT/C/25/Add.10; for its consideration
by the Committee see documents CAT/C/SR.305, 306 and 308 and Official
Records of the General Assembly, fifty-third session, Supplement
No. 44 (A/53/44, paras. 70-79).
1. Portugal signed the Convention against Torture
and Other Cruel, Inhuman Degrading Treatment or Punishment on 4
February 1985. The Convention entered into force for Portugal on
11 March 1989, after its ratification by the Assembly of the Republic
in resolution No. 11/88 of 1 March 1988.
2. The initial report of Portugal to the Committee
against Torture covered the period between 11 March 1989 and 31
March 1992 and was submitted in conformity with the provisions of
article 19, paragraph 1, of the Convention.
3. The second periodic report submitted by Portugal
covered the period between 31 March 1992 and 31 March 1996.
4. The present report covers the period between
31 March 1996 and 28 February 1998. It follows the guidelines adopted
by the Committee against Torture at its 85th meeting. The observations
and recommendations made by the Committee on the occasion of the
discussion of the second periodic report of Portugal (see CAT/C/SR.308)
have also been taken into account in its preparation.
5. The present report has the same general framework
as the second periodic report, so as to facilitate understanding
and enable comparison of the updated data presented in the two reports.
I. GENERAL LEGAL FRAMEWORK*
* The 76 legal texts in Portuguese which were provided with the report
may be consulted in the archives of the Office of the United Nations
High Commissioner for Human Rights.
6. A number of legislative changes have occurred in the general
domestic legal framework.
7. Constitutional Act No. 1/97 of 20 September
1997 brought about the fourth revision of the Constitution of the
Portuguese Republic .
8. The revision envisages two major alterations
which are relevant to the present report. The first concerns the
principles of extradition provided for in article 33 of the Portuguese
Constitution, which now reads as follows:
"1. Portuguese citizens shall not be deported
from the national territory.
2. Deportation of persons who have entered,
or are permanently resident in, the national territory, who have
obtained a residence permit, or who have lodged an application for
asylum that has not been refused, shall be determined by a judicial
authority only; the law shall provide for the expeditious decision
of these matters.
3. The extradition of Portuguese citizens from
the national territory shall only be permitted, on condition of
reciprocity based on an international agreement, in cases of terrorism
and international organized crime and provided that the legal order
of the requesting State enshrines safeguards of a fair and just
trial.
4. No one shall be extradited for political
reasons nor for crimes which, under the law of the requesting State,
carry the death penalty or any other penalty causing irreversible
damage to the physical integrity of the person.
5. Extradition in respect of offences punishable,
under the law of the requesting State, by deprivation of liberty
or detention order for life or an indeterminate term, shall only
be permitted on condition of reciprocity based on an international
agreement and provided that the requesting State gives an assurance
that such sentence or detention order will not be imposed or enforced.
6. Extradition shall be determined by a judicial
authority only.
7. The right of asylum is guaranteed to aliens
and stateless persons who are persecuted, or under a serious threat
of persecution, in consequence of their activities on behalf of
democracy, social or national liberation, peace between peoples,
or the liberty or human rights of individuals.
8. The status of political refugees shall be
established by law."
9. As amended, article 33, paragraph 4, now
expressly prohibits the extradition of persons for crimes which
under the law of the requesting State are liable to a penalty causing
irreversible damage to the physical integrity of the person.
10. The extradition of Portuguese citizens from
the national territory is now envisioned, on condition of reciprocity
based on an international agreement, in cases of terrorism and international
organized crime, provided that the legal order of the requesting
State enshrines safeguards for a fair and just trial.
11. Extradition for crimes which, under the
law of the requesting State, are punishable by deprivation of liberty
or detention order for life or an indeterminate term shall only
be permitted on condition of reciprocity based on an international
agreement and provided that the requesting State gives an assurance
that such sentence or detention order will not be imposed or enforced.
12. Article 32, paragraph 6, of the Portuguese
Constitution now provides for the possibility that, in certain cases
and with due regard for the right of defence, the personal appearance
of the person charged with or accused of an offence can be dispensed
with in the procedural acts, including the trial, as long as the
respective declarations of identity and residence have been duly
made by the defendant and he is informed of the existence of proceedings
against him.
13. In addition, the Criminal Code /
Bill No. 160/VII amending the Criminal Code has recently been approved./
which underwent a first revision in 1995, is currently in the final
stages of a second revision.
14. In the areas relevant to this report, the
reforms introduced by the new bill are rather significant and involve
stricter penalties for several crimes against persons, as well as
the reinforcement of the legally protected right of sexual freedom,
in the case of sexual crimes.
15. Regarding murder, three new aggravating
circumstances have been added: crimes committed against particularly
defenceless victims, by a public official exercising serious abuse
of authority or through particularly dangerous means. The increased
criminal liability under these circumstances extends to crimes against
physical integrity, liberty and honour. The use of particularly
dangerous means is common to offences against the physical integrity
of persons.
16. A procedural modification was introduced
in terms of ill-treatment of a spouse, or other person living with
the perpetrator under similar circumstances. This modification renders
punishable with a sentence of from one to five years' imprisonment
physical or psychological abuse of a spouse or any other person
who co-habitates with the offender under conditions similar to those
of a spouse.
17. Violation of the rules governing safety
at work is also rendered criminal.
18. Addressing the issue of humanizing sentences,
the revision gives predominance to the application of alternative
sentences to short-term imprisonment. As such, and based on the
same principles, the Bill proposes amendments to the articles regarding
the maximum limits for relatively indeterminate sentences, now set
at a total maximum of 25 years, as opposed to the previous system
which did not determine any such maximum limit in these cases.
19. The proposed Bill on the Revision of the
Code of Criminal Procedure, / Bill No. 157/VII amending
the Penal Procedure Code was approved in June of 1998./ approved
by the Council of Ministers on 4 December 1997, confers unity and
rationality upon the process, by clarifying the roles of the judicial
authorities and police bodies and by reinforcing the effectiveness
of the system and the protection of fundamental rights. The prospective
Code of Penal Procedure attempts to conciliate efficiently the conflicting
objectives of security and the protection of fundamental rights.
20. The new system has two major features, namely
an increase in the number of cases in which, as referred to previously,
the accused may be tried in absentia provided that he has been duly
notified of the proceedings initiated against him, and procedural
differentiation between minor or medium offences on the one hand
and grave crimes on the other, through mechanisms of procedural
simplification and the establishment of a new abbreviated process.
The systems of summary proceedings, proceedings and application
for civil indemnity have all been altered. The possibility has been
introduced for the court to award, with the effect of criminal conviction,
damages for losses suffered, when special considerations so require
for the protection of the victim. In terms of in camera proceedings,
certain changes have been introduced which render the system more
flexible. Changes have also been made in the area of resources,
with the aim of evaluating the available means and using them more
effectively.
21. It is important to recall Law No. 20/96
of 6 July, which allows immigrant community, anti-racist and human
rights organizations to participate in criminal proceedings without
a request from the victim when the offence on trial involves racist,
xenophobic or discriminatory conduct, unless the victim is expressly
opposed to this participation.
22. Of particular note is the reform of the
prison system under which several legislative measures have been
adopted which are likely to contribute to the improvement of the
conditions of detention in prison establishments. The legislative
initiatives referred to above are part of the Programme of Action
for the Prison System, approved through Council of Ministers resolution
No. 62/96 of 29 April. The principal features of this programme
of action will be discussed below in greater detail, under article
11.
23. In terms of international law, several new
multilateral international instruments were ratified in areas which
are relevant to the prevention and punishment of torture, namely:
Europol Convention, creating a European Police
Force designed to combat the more violent forms of crime, ratified
by the Assembly of the Republic in resolution No. 64/97, of 3 July,
published in the Official Journal No. 217, series I-A, of 19 September;
Convention on Prohibitions or Restrictions on
the Use of Certain Conventional Weapons which may be deemed to be
Excessively Injurious or to have Indiscriminate Effects, ratified
by Presidential Decree No. 1/97, published in the Official Journal,
series I of 13 January;
Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their
Destruction, open for signature on 13 January 1993, approved for
ratification by the Assembly of the Republic in resolution No. 25-A/96,
published in the Official Journal No. 169 series I-A, 23 July supplement;
Protocol No. 9 to the Convention for the Protection
of Human Rights and Fundamental Freedoms, of 6 November 1990, published
in the Official Journal No. 55, series I-A, 7 March 1994, ratified
by Portugal on 12 October 1995, which came into effect on 1 February
1998, as per Notice No. 6/96, published in the Official Journal,
series I of 2 January;
Protocol No. 11 to the Convention for the Protection
of Human Rights and Fundamental Freedoms, Restructuring the Control
Machinery Established thereby and respective annex, signed in Strasbourg
on 11 May 1994, approved for ratification by the Assembly of the
Republic in resolution No. 21/97, published in the Official Journal
No. 102, series I-A of 3 May 1997;
Protocol No. 1 to the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, open for signature in Strasbourg on 4 November 1993,
approved for ratification by the Assembly of the Republic in Resolution
No. 24/97, published in the Official Journal No. 103, series I-A,
of 5 May 1997;
Protocol No. 2 to the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment open for signature in Strasbourg on 4 November 1993,
approved for ratification by the Assembly of the Republic in resolution
No. 19/97, published in the Official Journal No. 100, series I-A
, of 30 April 1997.
24. In addition, the following instruments on
mutual international judicial assistance in criminal matters are
already in force for Portugal:
European Convention on Extradition, as of 25
April 1990;
Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of Others,
as of 29 December 1992;
European Convention on the Transfer of Sentenced
Persons, as of 1 October 1993;
European Convention on Mutual Assistance in
Criminal Matters, as of 26 December 1994;
European Convention on the Supervision of Conditionally
Sentenced or Conditionally Released Offenders, as of 17 February
1995;
Additional Protocol to the European Convention
on Mutual Assistance in Criminal Matters, as of 27 April 1995;
Convention of the Member States of the European
Communities on the implementation of the principle non bis in idem,
as of 1 January 1996. / Although it did not have the
necessary number of ratifications to enter into force, it is applicable
in the bilateral relations of member States which have issued a
declaration to this effect at the moment of ratification./
25. The following Conventions are still not
in force, although they have already been ratified by Portugal:
Agreement between the Member States of the European
Communities on the Simplification and Modernization of Methods of
Transmitting Extradition Requests, signed in Brussels on 10 March
1995, ratified by Presidential Decree No. 41/97, of 22 May, published
in the Official Journal No. 138, series I-A, 18 June;
European Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime, ratified by Presidential
Decree No. 73/97, of 27 November, published in Official Journal
No. 287, Series I-A of 13 December.
26. Portugal's commitment in the combat against
torture is also reaffirmed at the more restricted regional level,
as in the Council of Europe. As such, 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. It is
important to note that the Committee for the Prevention of Torture,
instituted under this convention of the Council of Europe, has already
undertaken two regular visits to Portugal (January 1992 and May
1995), following which the Government authorized the publication
of the respective reports together with its own observations. There
was an additional extraordinary visit in 1995, for the purpose of
analysing specific aspects of previous recommendations of the Committee
regarding one particular prison establishment.
II. INFORMATION ON EACH OF THE ARTICLES IN PART I OF THE CONVENTION
Article
1
Definition of torture
27. The legal definition of torture is laid
down in article 243, paragraph 3, of the Criminal Code, according
to which 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".
28. Article 244 of the Code stipulates:
"1. Under the terms and conditions mentioned
in the preceding article, / Article 243 of the Criminal
Code:
"1. Whosoever, charged with the function
of prevention, follow-up, investigation or knowledge of criminal
infractions, misdemeanors or disciplinary infractions, the application
of related sanctions, or the protection, guard or supervision of
a detainee or prisoner, tortures or subjects such persons to torture,
cruel, inhuman or degrading treatment for the purposes of:
(a) Obtaining from this or any other person,
a confession, statement, declaration or information;
(b) Punishment for an act committed, or allegedly
committed by that or any other person; or
(c) Intimidation of that or any other person
shall be punished with a prison sentence of
from one to five years, if a heavier sentence is not applicable
by virtue of another legal provision.
2. Any person who on his own initiative or following
orders from a superior, uses the function referred to in the previous
paragraph, to carry out any of the acts described therein, shall
be liable to the same sentence.
3. 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.
4. The provisions of the preceding paragraph
do not include the sufferings inherent in the execution of the sanctions
foreseen under paragraph 1 or engendered by it, or any legal detention
or restraining measures."/ 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 from 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 from 8 to 16 years' imprisonment."
29. The use of torture is also an aggravating
circumstance in other crimes referred to in the Criminal Code. As
such, the sentences applicable to the crimes of murder (art. 132,
para. 2) and serious physical offences (art. 144), for example,
are heavier in cases where torture is involved.
30. In addition, the above-mentioned offences
are public crimes and therefore liable to the initiation of ex officio
proceedings by the Public Prosecutor, in accordance with the legal
principle in effect in Portugal which determines that this procedure
is mandatory.
31. These crimes are imputable to the author,
as well as to co-principals and to members of associations or criminal
organizations, the object of which is the practice of these criminal
activities. Attempt, in these crimes is always punishable. In its
subjective structure, these crimes, envisage both law enforcement
officials and private citizens.
32. In accordance with Portuguese law, international
law is considered to be infraconstitutional but supralegal. As such,
the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment is considered as having been incorporated
into Portuguese law upon its entry into force for Portugal. Pursuant
to article 8, paragraph 2, of the Portuguese Constitution, "The
rules provided for in international conventions that have been duly
ratified or approved, shall apply in national law, following their
official publication, so long as they remain internationally binding
with respect to the Portuguese State." As such and in terms
of the full incorporation of the present Convention in Portuguese
domestic law, the latter was previously approved by the Assembly
of the Republic and later ratified by the President of the Republic.
Article
2
Legislative, administrative,
judicial and other measures
33. For information regarding the legislative,
administrative and judicial measures adopted in Portugal to combat
torture, the reader is referred to paragraphs 50 to 116 of the initial
report (CAT/C/9/Add.15) and to paragraphs 19 to 24 of the second
periodic report (CAT/C/25/Add.10).
34. Bearing in mind this general framework,
a few additional measures adopted by Portugal in the following areas
are discussed below:
(a) Organization of the permanent courts and
other measures of judicial organization;
(b) Police measures;
(c) Protection of the victims of violent crimes;
(d) Child victims of violence;
(e) Physician's Code of Ethics;
(f) Reorganization of the medical legal system;
(g) The medical profession and Legis Artis;
(h) Removal of organs from dead or living persons;
(i) National Ethics Council and local ethics
commissions;
(j) Mental Health Law.
35. Article 18, paragraph 1, of the Portuguese
Constitution stipulates that the Constitutional provisions relating
to rights, freedoms and safeguards shall be directly applicable
to and binding on public and private bodies.
36. The Constitution establishes the right to
life and physical integrity of the person, as a fundamental and
inviolable right and, as such, article 19, paragraph 6, of the Constitution
stipulates that the declaration of a state of siege or a state of
emergency shall under no circumstances affect the right to life
and physical integrity.
Organization of the permanent courts and
other measures of judicial organization
37. Law No. 44/96, of 3 September, establishes
a rota system of 50 courts, designed to address issues of an urgent
nature during weekends and national holidays. An example of these
urgent issues is the presentation of every detainee before an examining
magistrate within a maximum period of 48 hours following detention,
in accordance with article 28, paragraph 1, of the Portuguese Constitution
and article 141 of the Portuguese Criminal Code. The detainee must
be brought before the examining magistrate even if the arrest does
not take place in flagrante delicto, but as a consequence of an
arrest warrant previously issued by a judge. This understanding
was expressly articulated in the revision to the Code of Criminal
Procedure (art. 254, para. 2).
38. The revisions to the Public Prosecutor Act,
(Bill No. 113/VII / Bill No. 113/VII was approved in
July of 1998./ of the Assembly of the Republic) and the Organic
Law of the Judicial Courts (Bill No. 182/VII, of the Assembly of
the Republic) are at present in the final stages of conclusion.
These changes fall within the general framework of reinforcement
of the institutions devoted to the administration of criminal justice.
39. Law No. 1/97, of 16 January, establishes
a technical advisory nucleus within the Office of the Attorney General
aimed at providing technical consultancy services to the Department
of Justice in the areas of economics, finance, banking, accounting
and the movables market.
40. The revision of the Organization Act governing
the Centre for Judicial Studies (Bill No. 139/VII / This
Bill was superseded by Law No. 16/98, of 8 April. / of the Assembly
of the Republic) is also in its final stages. This law is aimed
at improving upon the experiences obtained during the last 15 years
of the Centre's activity.
41. Law No. 289/97, of 22 October, establishes
the Criminal Affairs Council, the supreme consultative body of the
Ministry of Justice, the National Institute of Criminology thereby
becoming defunct.
Police measures
42. Paragraphs 1 and 2 of article 27 /
Article 27 of the Portuguese Constitution reads:
"1. Everyone has the right to liberty and
security.
2. No one shall be deprived of his or her liberty,
in whole or in part, unless as the consequence of a sentence of
imprisonment imposed by a court convicting him or her of an offence
punishable by law, or as the consequence of a security measure judicially
ordered.
3. This guarantee does not apply to the following
cases where a person is deprived of his or her liberty, for a period
and under conditions laid down by law:
(a) Detention in flagrante delicto;
(b) Detention or remand in custody where there
is strong evidence that the person has committed a serious crime
punishable by imprisonment for more than three years;
(c) Arrest, detention or other coercive measure
subject to judicial control of a person who has unlawfully entered
or remained in the national territory or against whom extradition
or deportation proceedings have been instituted;
(d) Imprisonment for reasons of discipline of
military personnel, to whom a right to appeal to the competent court
is guaranteed;
(e) Detention of a minor in an appropriate institution
for the purposes of protection, support or education, on the order
of a competent court of law;
(f) Detention under a court order for non-compliance
with a court order or to ensure appearance before the competent
judicial authority;
(g) Detention of suspects, for identification
purposes, in such cases and periods of time as are strictly necessary;
(h) Committal of a person suffering from a mental
disorder to an appropriate therapeutic institution ordered, or confirmed,
by a competent judicial authority.
4. Everyone who is deprived of liberty shall
be informed, promptly and in a manner that he or she understands,
of the reasons for the arrest or detention, and of his or her rights.
5. Any deprivation of liberty in violation of
the provisions of this Constitution or the law shall place the State
under the duty to compensate the person aggrieved as laid down by
the law."/ of the Constitution of the Portuguese Republic stipulate
that no one shall be deprived of his or her liberty, in whole or
in part, except as a result of a criminal sentence imposed by a
court as a conviction for an offence punishable by imprisonment,
or as the consequence of a judicially ordered security measure.
Paragraph 3 stipulates the situations under which a citizen may
be deprived of those rights and paragraph 4 the minimum guarantees
surrounding such deprivation.
43. These principles are reflected in the Organization
Acts of the main police forces established by Portuguese legislation:
the Judicial Police, the Public Security Police and the National
Republican Guard.
44. The Public Security Police and the National
Republican Guard come under the Ministry of the Interior, whilst
the Judicial Police come under the Ministry of Justice.
45. The Public Security Police Organization
Act, was adopted by Decree-Law No. 321/94, of 29 December. This
Act includes a list of specific cases in which coercive measures
may be used. For further information we refer the reader to paragraph
35 of the second periodic report (CAT/C/25/Add.10). Decree-Law No.
2-A/96, of 13 January, has altered the rules governing the appointment
of the Commander General of this police force, so as to bring them
into closer alignment with the European model governing the appointment
of the supreme commanders of similar police forces. As such, "The
Commander General of the Public Security Police is nominated by
the Minister of the Interior and must be a General in the army,
a police officer of rank not lower than that of Chief Superintendent,
a member of the Public Prosecutor's Office, or other person of recognized
high moral standing."
46. Under conditions similar to those of the
Public Security Police, the Organization Act of the National Republican
Guard, adopted by Decree-Law No. 265/93, of 31 July, defines in
article 30, the situations in which coercive measures may be utilized.
For further information we refer the reader to paragraph 37 of the
second periodic report (CAT/C/25/Add.10).
47. The Judicial Police is a criminal police
body organized hierarchically under the Ministry of Justice and
overseen by the Public Prosecutor's Office, which supervises its
procedural activity. The functions of this police body are to prevent
and investigate crimes and to work in cooperation with the judicial
authorities.
48. Decree-Law No. 295-A/90, of 21 September,
establishing the organizational regime governing the Judicial Police,
stipulates, in paragraph 1 (b) of article 91, the special duty incumbent
on the police forces to refrain from inflicting torture, or inhuman,
cruel or degrading punishment or treatment, as well as to refuse
to execute, or if necessary to disregard any orders or instructions
to apply such treatment, as well as to refrain from the use of force
beyond that which is strictly necessary for the performance of a
task that is required or authorized by law.
49. The Inspectorate-General (Inspecção-Geral
da Administração Interna), is a high-level inspection
and prosecution service within the Ministry of the Interior, established
by Decree-Law No. 227/95, of 11 September, the main function of
which is to monitor and supervise the legality of the activities
of the police forces. The Inspectorate-General, headed by a Deputy
Attorney-General, is a service whose primary role is to monitor
legality, protect citizens' rights and achieve more effective and
prompt administration of disciplinary measures.
50. As reported in the media, the conclusions
of the 1997 report issued by the Inspectorate-General emphasize
an improvement in respect by police officers for citizens' rights,
as reaffirmed in a public statement by the Minister of the Interior,
who highlighted the fact that the Inspectorate-General contributes
"to a better protection of the citizens and defence of their
rights, as well as the dignification of the security forces and
improvement of their work conditions".
51. The report further highlights a reduction
in cases of alleged physical abuse by members of the police forces,
a situation which gave rise to 34 complaints in the first 10 months
of 1996 and 22 in 1997, a downward trend which also applies to 1998.
52. On the other hand, in 1997 over 100 detention
areas in police stations and quarters were closed down, in addition
to 18 Republican National Guard quarters and 3 Public Security Police
stations, as a result of inspections carried out by the Directorate-General
who classified them as inadequate detention facilities. A noteworthy
example is that of the prison cells of the Lisbon Governo Civil
/ Services headed by a Governador Civil, nominated by
the Government as its representative at the district level./ the
conditions of which were condemned by the Committee for the Prevention
of Torture, following a visit there, as well as by the Inspector-General.
As a result, the cells were renovated, namely through the opening
of new windows and the creation of special cells for inmates with
children, decorated with children's motifs.
53. For further information on these issues,
the reader is referred to paragraphs 27 to 44 of the second periodic
report (CAT/C/25/Add.10).
Protection of victims of violent crime
54. As already stated in paragraphs 45 to 50
of the second periodic report (CAT/C/25/Add.10), Decree-Law No.
423/91, of 30 October, amended by Law No. 10/96, of 23 March, establishes
a legal regime for the protection of victims of violent crime. Articles
129 and 130 of the Criminal Code stipulate the civil liability deriving
from a crime, and the compensation of the injured party is provided
for in special legislation.
55. Under Decree-Law No. 423/91 of 30 October,
Regulatory Decree No. 4/93 of 22 February and Law No. 10/96 of 23
March, the Minister of Justice is responsible for the decision to
award compensation to the victims of violent crimes, upon the advice,
as to the merits of the award and the amount to be awarded, of the
Fact Finding Commission for the Award of Compensation to Victims
of Violent Crimes, a body set up to consider and analyse these specific
requests.
56. The Commission is composed of a judge appointed
by the Supreme Council of the Judiciary, a lawyer appointed by the
Bar Association and a senior official of the Ministry of Justice,
appointed by the Minister.
57. The following data provided by the Fact
Finding Commission for the Award of Compensation to Victims of Violent
Crime reflect the activities of the Commission relative to 1996.
/ Source: Justice files, September 1997, Bureau of Studies
and Planning of the Ministry of Justice./
1996 Statistics
Proceedings
Proceedings carried over from 1995 : 52
Proceedings filed : 59
Proceedings with final opinion by the Commission
: 58
Finalized proceedings / By Order
of the Secretary of State for Justice./ : 42
Proceedings carried over to 1997 : 69
Proceedings filed
In 1993 : 62
In 1994 : 52
In 1995 : 42
In 1996 : 59
In 1997 / Until 30 June./ : 88
58. The Commission's 1996 annual report highlights
the need to review certain issues, so as to enable the Commission
to pursue its future activities adequately: lack of knowledge by
the interested parties of the workings of the Commission; the need
to amend certain aspects of Decree Law No. 423/91, of 30 October.
59. Relative to the second issue, the Commission
took the initiative of drafting a proposal for legislative change,
which accompanied the above-mentioned report. The Commission also
expressed its availability to discuss the proposed changes, as well
as any others relevant related to this issue, offering its experience
and knowledge of practical cases, as a contribution to the improvement
of the law.
60. The Commission's annual report further states
that, in accordance with the 1994 justice statistics, there were
1,723 crimes susceptible to create victims who qualify as petitioners
for State compensation. This statistic involves only the crimes
of murder, manslaughter, abduction and sequester. Even considering
that 50 per cent of the victims of these crimes did not fulfil the
prerequisites established by Decree-Law No. 423/91, 800 requests
for compensation should have been filed with the Commission, instead
of the 213 filed since 1993.
61. Law No. 61/91 of 13 August, establishes
the special protection awarded to women victims of violence, namely
through the setting up of a prevention and support network, an SOS
office aimed at providing a telephone helpline and the creation
of departments within the criminal police bodies staffed by female
agents.
62. It is important to stress that the European
Convention on the Compensation of Victims of Violent Crimes was
signed by Portugal on 6 March 1997 and entered into force on 1 February
1998.
63. Among the private associations, the Portuguese
Association for the Support of Victims (APAV), is a private social
welfare agency, aimed at providing moral, social, legal, psychological
and economic support to victims of general criminal offences.
64. A new section of APAV was recently established
in Faro, adding to the 10 already existent throughout the country,
namely in Lisbon (2), Cascais, Loures, Setúbal, Porto, Vila
do Conde, Braga, Vila Real and Coimbra. The Faro section has already
attended to over 50 cases in the first three months of activity.
The section is functioning in quarters ceded by the Judicial Police
and is composed of a multidisciplinary team of 20 professionals
ranging from psychologists and lawyers, to nurses, social workers
and teachers, all working on a voluntary basis. Eighty-five per
cent of the victims who seek the support of this office are women.
65. Measures aimed at the protection of victims
have also been adopted within a framework of safeguarding equality
of opportunities. In this regard, Portugal has undertaken two initiatives
recently:
(a) The establishment of the Office of the High
Commissioner for Matters relating to the Promotion of Equality and
the Family, by Decree-Law No. 3-B/96 of 26 January 1996. An example
of the role of the High Commissioner is the recent establishment
of a safe house for battered women, in a joint venture with the
Municipality of Alverca, following a proposal made by that office
to the country's 12 women mayors regarding the joint setting up
of this kind of unit;
(b) The adoption on 24 March 1997, of a Global
Plan for Equality of Opportunities. This plan envisages not only
the Government's objectives in terms of the policies of equality
of opportunities between men and women, but also the commitments
espoused by the Platform for Action of the United Nations Fourth
World Conference on Women, stressing the importance of those policies
in terms of sustained economic development, social development and
the promotion of democracy. The Global Plan espouses six objectives
and attributes the global coordination of the project to the High
Commissioner for Matters relating to the Promotion of Equality and
the Family. A year after its publication in the Official Journal,
the Global Plan will be subject to evaluation, relative to the application
of the measures contained therein.
66. In the area of prevention, the following
measures have been adopted:
Public awareness campaigns regarding the role
of women in society;
The elaboration and distribution of a guide
containing practical information on the rights of women victims
of violence.
67. The following protective measures are worthy
of mention:
Establishment of shelters for women victims
of violence;
Establishment of an emergency telephone hotline;
Establishment in the relevant criminal police
bodies, of reception areas for women victims of violent crimes;
Establishment of procedures designed to overcome
the gap between the filing of a complaint by a victim of family
violence and the issue of a restraining order against the person
living with the victim if this is deemed convenient by the court;
Promotion and reinforcement of measures aimed
at the compensation of victims of family violence;
Introduction in courses designed for police
officials of matters relating to the psychological and social effects
of family violence on the victims and on the family structure;
Promotion of measures aimed at the suppression
of the exploitation of the prostitution of others and traffic in
women, through stricter cooperation between the Government and the
local authorities;
Establishment of family mediation centres.
68. Besides these, there are specific measures
aimed at the protection of women victims of violence, among which
are: the legitimacy awarded to women's associations to exercise
the right of popular action in defence of the rights of women; the
reinforcement of the legal protection of women victims of violence,
sexual abuse and ill-treatment by a spouse or person living with
the victim under conditions analogous to those of a spouse; and
the obligation of the State to compensate the victim, when compensation
cannot be paid by the perpetrator or by any other means.
Child victims of violence
69. Relative to the issue of child victims of
violence, we refer the reader to paragraphs 52 to 65 and 130 to
145 of the second periodic report (CAT/C/25/Add.10).
70. The draft revision of the Criminal Code
introduces a change to article 5, paragraph 1 (b), so as to allow
the application of Portuguese criminal law to crimes of child sexual
abuse, (arts. 172-173) exploitation of the prostitution of children
and the traffic of minors (art. 176), committed outside the national
territory, independently of the nationality of the victim and of
the fact that the act is punishable by the legislation of the country
where the crime was committed.
71. In terms of child sexual abuse (art. 172),
in addition to the already existing laws against the use of children
under the age of 14 in pornographic photography, film or recording,
the exhibition and trade (namely, the sale) of such materials has
also been rendered illegal. The combat against paedophilia is thus
reinforced in accordance with the Common Plan of Action adopted
in this realm by the European Union.
72. So as to reinforce the protection of child
and adolescent victims of sexual crimes and in accordance with the
guidelines advanced in the 1996 Stockholm World Congress against
the Commercial Exploitation of Children, the sexual exploitation
of children under the age of 16 is penalized, independently of the
method used, or the situation of abandonment or need of the victim
(art. 176, para. 2).
73. The combat against the exploitation of the
prostitution of children is also intensified through the penalization
of the laundering of profits derived therefrom, in accordance with
the amendments to article 2 of Decree-Law No. 325/95 of 24 December,
thus espousing recommendation R(91) 11, adopted by the Committee
of Ministers of the Council of Europe on 9 September 1991.
74. In terms of the sexual abuse of dependent
adolescents, the revision provides for the punishment of an offender
for crimes committed against minors aged between 14 and 18 years
who have been entrusted to the perpetrator for the purposes of education
or care.
75. Although as a rule these are semi-public
crimes, they may nevertheless be prosecuted by the Public Prosecutor's
Office, independently of the filing of a complaint, whenever special
reasons associated with the public interest so demand and the victim
is under 12 years of age (art. 178, para. 2). The draft revision
introduces an express reference to the best interests of the victim,
which are the only interests to be taken into account. The accessory
penalty of restriction of parental authority, custody or guardianship,
is increased from a maximum period of 5 years to 10 years.
76. In 1996, 1997 and 1998, commissions for
the protection of minors were established in the districts of Lourinhã,
Fafe, Felgueiras, Entroncamento, Torres Novas, Ponte de Lima, Abrantes,
Paredes de Coura, Montijo, Barreiro, Amadora, Cartaxo, Fundão,
Soure, Porto de Mós, Figueiró dos Vinhos, Marinha
Grande, Ourém, Guarda, Mogadouro, Baião, Albufeira,
Lagos and Olhão, and the town councils of Lagoa in the Azores,
Sertã, Amares, Mortágua and Carregal do Sal.
77. The Commissions for the Protection of Minors
are official non-judicial institutions with functional autonomy,
invested with a jurisdiction traditionally exercised by the court,
in a process designed to endow the community with greater responsibility.
78. The commissions are involved in the detection,
prevention and activity based on the respect for the safeguard of
the intimacy of private and family life, directed at minors under
18 years of age who are victims of abandonment, ill-treatment or
other situations which may pose a serious danger to their safety,
health, moral upbringing or education and minors under the age of
12 who have committed acts which qualify as crimes or misdemeanours
or who are in situations of begging, vagrancy, alcohol abuse, drug
abuse or prostitution.
79. In December 1996, the National Commission
on the Rights of the Child was created with the objective of ensuring
a more accurate evaluation and follow-up of the implementation of
the Convention on the Rights of the Child. The Commission, which
is dependent on the High Commissioner for Equality and the Family,
has recently completed the second periodic report on the implementation
of the Convention on the Rights of the Child, which was presented
publicly on the International Day of the Child. After the first
year of activity, during which the main preoccupation of the Commission
was the drafting of the national report, the Commission will direct
its activities towards more practical actions regarding the dissemination
of its work and the principles espoused by the Convention. The Commission
has already undertaken public activities in several parts of the
country aimed at informing both children and adults about the Convention.
80. The Child Custody Law, the main provisions
of which date back to 1978, is at present being revised. The draft
proposal for a child custody law will distinguish between minors
victims of abuse and ill-treatment (protective interventional custody)
and minors perpetrators of criminal violations (educational interventional
custody).
The Physicians' Code of Ethics
81. The Physicians' Code of Ethics was drafted
in 1982 by physicians, through the Medical Association, which is
a State-approved organization.
82. Article 30 of the Physicians' Code establishes
their right of conscientious objection, whereby a physician is entitled
to refuse to perform any professional act which obliges him to act
in conflict with his moral, religious or humanitarian beliefs.
83. Article 44 of the Physicians' Code provides
that any physician who has attended to a child, an elderly or handicapped
person and observes that such a person has been abused or subjected
to ill-treatment or other acts of cruelty or violence, shall take
the appropriate measures for their protection and, in particular,
notify the police or competent social authorities.
84. It seems important to expand upon the Physicians'
Code of Ethics and to clarify that, in legal terms, the Code comprises
a set of norms adopted by this professional group and recognized
by the State.
85. These norms constitute the basis of an exclusively
disciplinary responsibility on the part of the doctors who infringe
them, a responsibility which is established by the relevant body
of the medical profession, namely the National Council of Ethics
of the Medical Association.
86. The physicians' disciplinary rules are endorsed
by Decree-Law No. 217/94, of 20 August. It is important to note
that the physician's disciplinary responsibility coexists with all
other forms of responsibility provided for by the law, namely criminal
law. For additional information, the reader is referred to paragraphs
76 and 77 of the second periodic report (CAT/C/25/Add.10).
87. Physicians are also liable to criminal responsibility,
through the competent judicial bodies, based on provisions of the
Criminal Code. In accordance with article 150 of the Criminal Code:
"Operations and medical treatment which,
based on medical knowledge and experience are deemed appropriate
and are performed according to the legis artis by a physician or
by another legally authorized person, with the intention of preventing,
diagnosing, healing or undermining illness, suffering, physical
injury or fatigue or mental disturbance, are not considered offences
against the physical integrity of the person."
88. The physician who upon treatment of a patient
observes that the latter has been the victim of aggression is required
to alert the competent authorities and to take the necessary general
measures. This does not preclude the victim from opposing the physician's
duty to undertake such measures, a situation which the latter will
have to ponder based on the specific circumstances of the case,
the nature of the injuries, the means used by the aggressor and
the consequences of the aggression, in accordance with the general
rules regarding conflict of duties.
Reorganization of the medical legal system
89. Decree-Law No. 11/98, of 24 January, reorganized
the medical legal system, re-evaluating the system based on acquired
experience and introducing structural changes and improvements so
as to provide the system with the greater functionality and flexibility.
The medical profession and legis artis
90. The draft revision of the Criminal Code
foresees as an autonomous crime the delinquent violation of the
medical legis artis, giving rise to a danger, equally imputable
to malice under the general terms of article 13, to the life, physical
integrity or health of the patient, a solution which was consecrated
in substance in the original version of the 1982 Criminal Code (art.
150, para. 2).
Removal of organs or tissues from dead or
living persons
91. The removal or donation of organs or tissues
from dead or living persons is regulated by Law No. 12/93, of 22
April 1993. We refer the reader to paragraphs 79 to 90 of the second
periodic report (CAT/C/25/Add.10) and further remind the reader
that article 10 of the statute "Considers as potential post
mortem donors all national citizens 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." As worded, the
law does not apply to tourists or temporary visitors to the country.
92. On the occasion of the adoption of this
legislation, an intense public debate was promoted and undertaken
by the media. This debate sought to help explain to the general
public the policy adopted and its implications. It was revealed
that they were duly understood by certain groups, namely those related
to religious movements.
93. It is important to stress that the physician
who verifies and certifies the death of a donor is barred from having
any direct or indirect involvement in the utilization of the organ
in question.
National Council of Ethics and local ethics
commissions
94. The National Council of Ethics for the Life
Sciences was created under Law No. 14/90 of 9 June. In accordance
with article 3 of the statute:
"1. The Council is composed of the President,
who is appointed by the Prime Minister, and by the following members:
(a) Seven dignitaries of recognized merit in
the area of the social sciences who have demonstrated special interest
in ethics issues;
(b) Seven dignitaries of recognized merit in
the areas of medicine or biology with implications of an ethical
nature;
(c) Six dignitaries of recognized technical
quality and moral integrity, bearing in mind the prevailing ethical
and religious currents.
2. The dignitaries referred to in line (a),
paragraph 1 are nominated by the following entities:
(a) Minister of Planning and Territorial Administration;
(b) Minister of Justice;
(c) Minister of Education;
(d) Deputy Prime Minister and Minister of Youth
Affairs;
(e) Board of Deans of Portuguese Universities;
(f) Bar Association;
(g) `Commission of Women's Affairs.
3. The dignitaries referred to in line (b),
paragraph 1 are nominated by the following:
(a) Minister of Health;
(b) Board of Deans of Portuguese Universities;
(c) Academia das Ciências de Lisboa;
(d) Medical Association;
(e) National Institute of Scientific Investigation;
(f) National Association of Scientific and Technological
Investigation;
(g) Supreme Council of Medical Jurisprudence.
4. The dignitaries referred to in line (c),
paragraph 1 are nominated according to the proportionality system
by the Assembly of the Republic."
95. It is important to note that there are local
ethics commissions in roughly 90 per cent of hospitals and in some
medical schools.
Mental Health Law
96. The Mental Health Law is currently under
revision (Assembly of the Republic Bill No. 121/VIII /
This Bill led to the adoption of Law No. 36/98, of 24 July./), which
establishes the general policy principles in the area of mental
health and regulates the mandatory confinement of persons with psychic
anomalies, namely persons suffering from mental illness.
97. This statute establishes the principle of
the judiciousness of compulsory confinement, which may only be ordered
when it is the only form of guaranteeing treatment of a patient
in cases where confinement is based on the level of danger and injury
which may be caused to the person in question and should, as often
as possible, be substituted by outpatient treatment.
Article
3
98. Article 33 of the Portuguese Constitution,
as drawn up in Law No. 1/97, of 18 July, contains the following
general provisions on extradition, expulsion and the right of asylum:
"1. Portuguese citizens shall not be extradited
or deported from the national territory.
2. Deportation of persons who have entered,
or are permanently resident in, the national territory, who have
obtained a residence permit, or who have lodged an application for
asylum that has not been refused, shall be determined by a judicial
authority only; the law shall provide for the expeditious decision
of these matters.
3. The extradition of Portuguese citizens from
the national territory shall only be permitted, on condition of
reciprocity based on an international agreement, in cases of terrorism
and international organized crime and provided that the legal order
of the requesting State enshrines safeguards of a fair and just
trial.
4. No one shall be extradited for political
reasons nor for crimes which, under the law of the requesting State
carry the death penalty or any other penalty causing irreversible
damage to the physical integrity of the person.
5. Extradition in respect of offences punishable,
under the law of the requesting State, by deprivation of liberty
or detention order for life or an indeterminate term, shall only
be permitted on condition of reciprocity based on an international
agreement and provided that the requesting State gives an assurance
that such sentence or detention order will not be imposed or enforced.
6. Extradition shall be determined by a judicial
authority only.
7. The right of asylum is guaranteed to aliens
and stateless persons who are persecuted, or under a serious threat
of persecution, in consequence of their activities on behalf of
democracy, social or national liberation, peace between peoples
or the liberty or human rights of individuals.
8. The status of political refugees shall be
established by law."
99. In accordance with article 16 of the Portuguese
Constitution, the provisions of the Constitution and of laws relating
to fundamental rights shall be construed and interpreted in harmony
with the Universal Declaration of Human Rights.
100. As such, the principle contained in article
33 of the Portuguese Constitution regarding extradition and deportation
should be interpreted and applied by the courts in harmony with
the principles espoused by the Universal Declaration.
101. The European Convention on Human Rights
is applicable within the Portuguese legal order, although it is
noteworthy that this Convention does not guarantee the right of
aliens not to be deported or extradited from the territory of one
of the contracting States. However, the case law of the organs of
the European Convention on Human Rights has provided certain restrictions
on the power of States to deport aliens, in cases where there may
be grounds for believing that such deportation may infringe upon
the rights guaranteed under article 3 of the Convention (prohibition
of torture, inhuman or degrading treatment or punishment). This
interpretation is valid for Portugal, as a State party to the above-mentioned
Convention which falls within the jurisdiction of Strasbourg, thus
espousing a principle of the Portuguese Constitution.
102. Apart from this, Portuguese ordinary law
espouses the above-mentioned constitutional principle in article
72, paragraph 1 of Decree-Law No. 59/93, of 3 March, which states
that "Extradition may not take place to any country where aliens
may suffer persecution for reasons which, in accordance with the
law, justify granting the right to asylum".
Extradition
103. The legal regime governing extradition
is set out in Decree-Law No. 43/91, of 22 January 1991, which establishes
the framework for international legal cooperation in criminal matters.
This law is currently under revision so as to render it adaptable
to the new constitutional regime in the area of extradition resulting,
as mentioned in paragraphs 8 to 11 of the present report, from the
fourth constitutional revision.
104. In accordance with the constitutional text,
extradition is refused, among other reasons, for crimes which, under
the law of the requesting State, carry the death penalty or any
other penalty causing irreversible damage to the physical integrity
of the person or deprivation of liberty or detention order for life
or an indeterminate term. However, regarding the latter provision,
(deprivation of liberty or detention order for life) extradition
is possible whenever the requesting State provides assurances that
such sentence will not be enforced, based on the principle of flexibility
introduced in article 33 of the Portuguese Constitution by the fourth
constitutional revision. This amendment aims at achieving an equilibrium
between cooperation in terms of serious crimes and the principles
governing the internal legal order, within which life imprisonment
was legally abolished in 1886.
105. The above-mentioned constitutional revision
now permits the extradition of Portuguese citizens from the national
territory, on condition of reciprocity based on an international
agreement, in cases of terrorism and international organized crime,
and provided that the legal order of the requesting State enshrines
safeguards of a fair and just trial.
106. In Portugal, the extradition procedure
comprises two phases: the administrative phase and the judicial
phase. Whereas the preliminary rejection of the request for extradition
may take place during the administrative phase, in accordance with
Portuguese constitutional law, the decision to grant the request
for extradition falls exclusively within the competence of a judge.
The decision to extradite takes place during the judicial phase
through a decision which is taken at the end of the judicial procedure
and during which process the interested party may be heard and oppose
extradition. The judicial decision is final and executory and is
sufficient to enable the presentation of the person to the requesting
State.
107. A refusal to extradite does not encumber
effective cooperation, given that Portuguese law recognizes the
principle of aut dedere aut judicare in the legally foreseen cases.
In this matter we refer the reader to what has been previously stated
in paragraph 10 of the present report.
Deportation
108. The grounds for deportation are set out
in Decree-Law No. 59/93, of 3 March, concerning the entry, departure
and residence of aliens within the national territory. On this issue,
we refer the reader to paragraphs 130 and 131 of the second periodic
report (CAT/C/25/Add.10).
109. Deportation may result from a sentencing
decision handed down in accordance with criminal legislation (art.
97 of the Criminal Code).
110. Article 34 of Decree-Law No. 15/93 of 22
January, concerning the anti-drugs campaign, provides for deportation
for a period not exceeding 10 years, of an alien convicted of a
crime covered by this Decree-Law.
111. In accordance with Law No. 15/98 of 26
March, which sets up the new legal regime governing the status of
political refugees and the right of asylum, an alien may not be
deported to a country where he may be subject to persecution on
the grounds warranting his being granted asylum, particularly to
a country where torture is practised.
112. Deportation may also be ordered by a judicial
authority or by the competent administrative authority, the Aliens
and Frontiers Service.
113. Deportation shall be decided on by a judicial
authority in the cases where it is an accessory penalty or when
the alien who is the subject of the decision has entered or remains
within the national territory lawfully and has requested a residence
permit or submitted an application for asylum which has not been
refused.
114. An alien entering the national territory
unlawfully may be detained by any police authority, referred to
the Aliens and Frontiers Service and, within a maximum period of
48 hours, 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, (for example, 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 specific 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 to the Aliens and Frontiers Service and accommodation
in temporary centres, as provided for in Decree-Law No. 34/94 of
14 September 1994.
115. The Aliens and Frontiers Service is the
authority with competence to initiate deportation proceedings. During
the proceedings, the alien must be present at the hearing. The decision
to deport falls within the competence of the Aliens and Frontiers
Service and may be subject to appeal to the Minister of the Interior
and, in terms of his decision, to the Administrative Courts.
Asylum
116. As mentioned in paragraph 111 above, Law
No. 15/98 of 26 March, sets up the new legal regime governing the
status of refugees and the right of asylum. This law introduced
certain new features, such as the possibility for family members
of the applicant for asylum to benefit, at the request of the interested
party, from a special residence permit, to be granted by the Minister
of the Interior. This measure aims at ensuring the reunification
of the family and thus provides exemption in these cases, from the
requisites of the general regime for the residence of aliens in
the national territory. A further legal innovation consists in enabling
the Portuguese State to award diplomatic protection for a period
not exceeding two years to displaced persons victims of serious
armed conflicts which have given rise to large-scale flows of refugees.
Article
4
117. As referred to in paragraphs 142 to 154
of the second periodic report, (CAT/C/25/Add.10) the new Criminal
Code has undergone several changes in the articles relative to torture.
The draft revision of the Criminal Code mentioned previously, contains
an amendment in respect of article 150, whereby that article, concerning
operations and medical and surgical treatment, will read as follows:
"1. Operations and medical treatment which,
based on medical knowledge and experience are deemed appropriate
and are performed according to the legis artis by a physician or
by another legally authorized person, with the intention of preventing,
diagnosing, healing or undermining illness, suffering, physical
injury or fatigue or mental disturbance, are not considered offences
against the physical integrity of the person.
2. The above-mentioned persons which based on
the objectives espoused therein perform operations or medical treatments
which violate the rules of the legis artis and thus endanger the
life, physical well-being or health of the person are punishable
by up to 2 years' imprisonment or by a fine of up to 20 days, if
they are not liable to a more serious sentence by virtue of another
legal disposition." / This paragraph is underlined
because it has been included in the draft revision of the Criminal
Code./
118. For further information on this issue we
refer the reader to paragraphs 140 to 154 of the second periodic
report (CAT/C/25/Add.10).
Article
5
119. 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 Criminal Code, as was
described in the first and second reports (CAT/C/9/Add.15 and CAT/C/25/Add.10).
120. Without prejudice to what was previously
stated on this subject in paragraph 70 of the present report, article
5 is altered by the draft revision of the Criminal Code. In accordance
with this proposal, Portuguese criminal law is also applicable to
certain types of crimes committed by aliens who are found in Portugal
and whose extradition has been requested, when these crimes are
extraditable but the extradition may not be granted, for example
the crimes of kidnapping and traffic of persons.
Article
6
121. As previously stated in prior reports presented
by Portugal, the rules for the detention of persons suspected of
committing crimes detailed in the Convention vary depending on whether
the person is remanded in custody for the purpose of extradition
or remanded in custody for the purpose of criminal prosecution.
Remand in custody for the purpose of extradition
122. Remand in custody for the purpose of extradition
is governed by the provisions of a convention or international treaty
in force in Portugal and in the absence thereof is based on the
principle of reciprocity, under articles 37 and 38 of Decree-Law
No. 43/91, of 22 January 1991.
123. We refer the reader to paragraphs 159 to
163 of the second periodic report (CAT/C/25/Add.10).
Remand in custody for the purpose of criminal
prosecution
124. Remand in custody for the purpose of criminal
prosecution is governed by article 28 of the Constitution and by
the Code of Criminal Procedure.
125. The Portuguese Criminal Code establishes
a clear distinction between remand in custody and pre-trial detention.
126. Pre-trial detention is a last resort measure
of constraint used when there is fear that the person may abscond,
destroy or tamper with evidence or disturb public order and peace,
and may only be applied when there are strong indications that a
crime punishable by a sentence exceeding a maximum of three years'
imprisonment has been wilfully committed, or if the detainee has
remained in the national territory on an irregular basis or if deportation
or extradition proceedings have been instituted against him.
127. Remand in custody is aimed at ensuring
that the detainee appears immediately before the judge so that a
procedural act can be drawn up or summary proceedings initiated.
In such case, the appearance before a judge may be designed to impose
an enforcement measure such as pre-trial detention.
128. Anyone against whom an accusation is presented
or against whom criminal proceedings are filed is considered an
accused. An accused person is conferred certain rights and duties
throughout the entire process, among them: the right to be present
at proceedings which directly concern him; to be heard by the court
or the examining magistrate whenever they must render a decision
which affects him personally; 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; to
select his own counsel or request the court to appoint one, to be
assisted by his counsel in all proceedings in which he participates
and, when in detention, to be allowed to communicate with his counsel,
including in private; 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; to be informed of his rights by the judicial
authority or by the criminal police body before which he is required
to appear; and to appeal, in accordance with the law, against unfavourable
decisions (art. 61 of the Code of Criminal Procedure).
129. The law foresees certain cases in which
the presence of counsel is mandatory. The presence of counsel is
always mandatory, in accordance with article 64 of the Code of Criminal
Procedure, at the initial judicial questioning of the detainee,
at the pre-trial examination and at the hearing except in cases
where imprisonment or detainment are not applicable, in any procedural
act where the accused is deaf, dumb, illiterate, ignorant of the
Portuguese language, under the age of 21, or there are any questions
regarding unimputability or reduced liability in terms of remedy
or extraordinary remedy and in cases of statements for the record.
Remand in custody of persons caught in flagrante
delicto
130. Provision for the remand in custody of
persons caught in flagrante delicto is set out in articles 254,
255 and 257 of the Code of Criminal Procedure and is specified in
the second periodic report (CAT/C/25/Add.10, paras. 165-170).
131. However, the draft proposal for revision
of the Code of Criminal Procedure contains an alteration to article
254 which will read as follows:
"Remand in custody as referred to in
the following articles takes place:
(a) So that within a maximum period of 48 hours
following the arrest, the detainee must be brought for summary proceedings
or before a competent examining magistrate for initial judicial
questioning or application or execution of enforcement measures;
or
(b) To ensure that the detainee is immediately
brought before the judicial authority so that a procedural act can
be drawn up. In cases where this may prove impossible, the detainee
must appear before a judge within the shortest period of time not
exceeding 24 hours following the arrest.
2. The accused who is not caught in flagrante
delicto must always be brought before a judge in accordance with
the provisions of article 141 for the application or execution of
pre-trial detention."
Pre-trial detention
132. Pre-trial detention is provided for under
article 28 of the Constitution of the Portuguese Republic and article
215 of the Code of Criminal Procedure and is outlined in paragraphs
171 to 176 of the second periodic report (CAT/C/25/Add.10).
133. The draft revision of the Code of Criminal
Procedure proposes a change / The new revision of article
215 of the Code of Criminal Procedure will be the following:
Article 215
(Maximum time limits for pre-trial
detention)
1. Pre-trial detention shall end after the following
time periods have elapsed from its commencement:
(a) 6 months, if no charge has been filed against
the accused;
(b) 10 months, if, after the pre-trial examination
has taken place, no decision has been handed down concerning committal
for trial;
(c) 18 months when no first instance sentence
has been handed down;
(d) 2 years, when no sentence with the force
of res judicata has been handed down.
2. The timeframes referred to in the previous
paragraphs are increased respectively, to 8 months, 1 year, 2 years
and 30 months, in cases of terrorism, violent or highly organized
crime, or when effected for a crime punishable with a prison term
of over 8 years, or for a crime:
(a) Provided for in articles 299, 312 No. 1,
315 No. 2, 318 No. 1, 319, 326, 331, or 333 No. 1, of the Criminal
Code;
(b) Of car theft or forgery of documents therein
related or elements of identification of vehicles;
(c) Counterfeit of money, credit instruments,
notes, stamps and like instruments, or of economic participation
in a transaction;
(d) Fraud, fraudulent insolvency, harmful administration
of the public or cooperative sector, forgery, embezzlement or corrupt
economic participation in a transaction;
(e) Laundering of monies, goods or products
of crime;
(f) Fraud in the attainment or misdirection
of subsidy, grant or credit;
(g) Encompassed by the convention on the safety
of air and maritime travel.
3. The time limits referred to in paragraph
1 are increased to 12, 16 months, 3 and 4 years respectively, when
the procedure is for one of the crimes referred to in the previous
paragraph and reveals itself of particular complexity, owing to
the number of defendants or victims or the highly organized nature
of the crime.
4. The time limits referred to in paragraph
1 (c) and (d), as well as the corresponding items referred to in
paragraphs 2 and 3, are increased by six months if there is an appeal
to the Constitutional Court or if the criminal process has been
suspended for trial in another court of preliminary ruling./ to
paragraphs 2 and 3 of article 215 regarding the cases in which the
legal time limits set out for pre-trial detention can be extended.
This change however merely increases the range of crimes which may
be encompassed by an extension of the legal time limits governing
pre-trial detention, without however increasing the maximum limit.
The maximum time limit remains four years, applicable only to certain
crimes and in situations where they prove of particular complexity.
The legal motives for the extension of the standard time limits
are extremely restricted.
134. In general, pre-trial detention ends whenever
the following periods have elapsed from its beginning: six months
without charges having been filed against the accused; 10 months
without pre-trial examination, a decision having been handed down
regarding committal for trial; 18 months without a first instance
sentence having been handed down; two years without a sentence of
res judicata being handed down.
Remand in custody for purposes of identification
135. Law No. 5/95, of 21 February, establishes
the obligation of possession of a document of identification, in
the absence of which or refusal to present such a document, an identification
procedure may take place consisting of the escort of the person
to be identified to the nearest police post, where he will remain
for the period of time strictly necessary for purposes of identification,
which may not exceed two hours.
Other enforcement measures
136. According to the principle of legality
set out in article 191 of the Code of Criminal Procedure, "the
freedom of individuals may only be restricted, whether totally or
partially, on the basis of procedural requirements, by enforcement
measures or bail provided for by the law".
137. Article 193, paragraph 1, stipulates that
"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 foreseen to be
applicable". The execution of enforcement measures shall not
affect the exercise of fundamental rights and shall require that
the person be duly charged.
138. We refer the reader to the second periodic
report (CAT/C/25/Add.10), regarding the statute of the person charged
(para. 180) and the conditions for the application or revocation
of enforcement measures (paras. 181-184).
Article
7
139. Under article 31 of Decree-Law No. 43/91,
of 22 January, if extradition is refused in the cases provided for
therein, the requesting State is called upon to furnish all the
elements necessary for the institution or continuation of criminal
proceedings against the person being prosecuted for the offence
which constitutes the basis for the request.
140. Consequently, if Portugal does not allow
the extradition, it is bound to bring criminal proceedings against
the person in question, in accordance with the principle of aut
dedere aut judicare.
141. In such a case, the rights and procedural
safeguards provided for under the Constitution of the Portuguese
Republic and the law are fully respected. Concerning this subject,
we recall what was stated in paragraph 120 regarding the changes
to article 5 of the Criminal Code.
Article
8
142. Under this article of the Convention, the
offences referred to in article 4 must be included in any extradition
treaty concluded between States.
143. As previously stated, in Portugal, extradition
is governed by article 33 of the Constitution and by Decree-Law
No. 43/91, of 22 January (law governing international cooperation
in criminal matters), which is applied in the absence of an international
treaty on the subject.
144. Relative to Decree-Law No. 43/91, of 22
January, we refer the reader to paragraphs 197 to 199 of the second
periodic report. It should be borne in mind that the Decree-Law
is at present under legislative review, following the fourth constitutional
revision and the need to adapt internal legislation to the most
recently adopted conventional instruments, namely those within the
framework of the Council of Europe.
Article
9
145. International mutual judicial assistance
in criminal matters is governed (in ancillary terms) by Decree-Law
No. 43/91, of 22 January.
146. As mentioned above in paragraphs 23 and
24, Portugal is a party to many international conventions on the
subject, including the 1959 European Convention on Mutual Assistance
in Criminal Matters and the Additional Protocol thereto and has
concluded bilateral treaties on this matter with several countries,
namely Australia, Brazil and Portuguese-speaking African countries.
Article
10
147. Training, information and the development
of awareness regarding torture and other cruel, inhuman or degrading
treatment or punishment is one of the most important means of ensuring
the effective prevention of such practices.
148. Regarding the means and forms of organization
of the information, we refer the reader to paragraphs 205 to 207
of the second periodic report (CAT/C/25/Add.10).
Police officials
149. Since 1989, the curriculum of the training
courses for the police forces has included human rights issues,
special attention being given to the need to treat detainees (as
well as suspects) humanely.
150. The School of Advanced Police Studies,
a university-level academy provides advanced training courses for
senior officers of the Public Security Police (PSP) in areas such
as command and management. Included in the curricula of these courses
are subjects such as legal sciences, social sciences and professional
ethics, in which human rights and the safeguard of fundamental rights
and freedoms play a primary role.
151. PSP has another training institution, the
Police Academy of Torres Novas, which provides basic and additional
training to rank and file police officers and which organizes courses
and seminars in ethics, intended to increase awareness of humanist
principles and values.
152. The Republican National Guard (GNR) trains
its officers at the Military Academy, which has created a special
university-level course in which socio-political sciences and the
law play a leading role.
153. GNR has another training institution, focusing
on the moral, cultural, physical, military and technical-professional
training of rank and file officers, where various training courses
on personal improvement are given.
154. The training of the Judicial Police (PJ)
falls under the responsibility of the National Institute of Police
and Criminal Science; human rights play a significant role and are
present at all levels of training.
155. The technical-practical training of private
security personnel also includes the subject of human rights.
156. The training of prison warders includes
issues such as personal and social development, justice and discipline,
prison theory and practice, institutional security, drugs and the
prison system, and interpersonal relations. The course content has
been enriched with the introduction of the study of the protection
of human rights, as well as the study of various international conventions
and of the functioning of the Committee against Torture, the European
Committee for the Prevention of Torture and the European Commission
on Human Rights.
157. In 1996, the Office of Documentation and
Comparative Law of the Office of the Prosecutor-General, in conjunction
with the Directorate-General of Prison Services and the Institute
for Social Integration and with the support of the Ministry of Justice,
translated into Portuguese the manual Making Standards Work published
by the non-governmental organisation Penal Reform International,
whose aim is to contribute to the improvement of prison conditions
and to promote fairer and more humane treatment of delinquents.
This activity was undertaken within the framework of promoting the
programme of crime prevention and criminal justice of the United
Nations.
158. Recently, the media has publicized an initiative
of the Ministry of the Interior, of a film entitled, "Fundamental
rights, standards of action", designed to serve as a complementary
source of training for the security forces and which attempts to
demonstrate the procedures such forces should adopt in terms of
ensuring respect for the fundamental rights of the citizen, in both
everyday and hazardous situations.
Article
11
Prison system
159. The government programme in the area of
justice established as a priority the creation of an urgent programme
of action for the prison system, with particular emphasis on the
system of execution of sentences and enforcement measures.
160. Consequently, the Programme of Action for
the Prison System, which comprises a series of measures aimed at
improving the conditions of detention, was approved by Resolution
No. 62/96, of 29 April, of the Council of Ministers.
161. The Programme of Action provides for the
strengthening of conditions relating to the application of the system
of sanctions which do not involve deprivation of liberty, the revision
of the Criminal Procedure Code and the improvement of the prison
system.
162. In terms of strengthening the conditions
relating to the application of a system of sanctions which do not
involve the deprivation of liberty, Decree-Law No. 375/97, of 24
December 1997, establishes procedures aimed at enhancing and promoting
the organization of practical conditions for the application and
execution of community work. This penal institute endeavours to
censure criminal activity though positive work actions on behalf
of the community and symbolic community reparation, promoting the
social utility of work rendered and the social integration of the
delinquent person. The person involved in rendering such services
is as such and in accordance with the above-mentioned statute, a
person who renders unremunerated services to the State or other
public or private entities, as a result of a legal conviction determining
such services.
163. A working group has been set up within
the Ministry of Justice to undertake a study on the introduction
in Portugal of electronic control measures.
164. One of the main objectives in revising
the Code of Criminal Procedure is to advance solutions designed
to expedite criminal procedure and thus eliminate successive postponements
of certain judicial acts, as well as to introduce more efficient
procedures for the handling of minor crimes and the revision of
the system of appeal.
165. The Programme of Action also comprises
legislative and administrative measures to address the urgent need
for intervention in the prison system.
166. The following legislative measures have
been adopted to date:
Law No. 36/96, of 29 August 1996, which allows
for the release of convicted detainees suffering from serious and
irreversible illness in a terminal phase;
Decree-Law No. 10/97, of 14 January 1997, which
reviews the law governing the organization of the Directorate-General
of Prison Services and establishes adequate structures to face the
problems posed by the present prison population;
Decree-Law No. 46/96, of 14 May 1996, which
established an additional regime for the realization of works, for
the acquisition of goods and services and for personnel recruitment
for the Directorate-General of Prison Services;
The development of various prison establishments,
namely the prisons of Castelo Branco and Monção, the
special prison of Viseu, for the detention of young adult males,
and the prison of Carregueira, (established by Decree Law No. 39/96
of 6 May 1996, Administrative Rule No. 34/97 of 9 January 1997,
Decree Law No. 190/97 of 29 July 1997, and Decree-Law No. 273/97,
of 8 October, respectively).
The correction of remuneration disparities of
prison warders, through Decree-Law No. 100/96 of 23 July.
167. In terms of administrative measures, among
various protocols with several public administration departments
special reference should be made to the protocol with the Ministry
of Health regarding the treatment of drug addicted detainees, aimed
at controlled abstinence, through drug testing and the free distribution
of methadone.
168. Following the broadcasting of information
by the media, a global project is under way for the establishment
of health units, hospital wards, locations for inmates with infectious
and contagious illnesses, and "drug free zones". The first
Drug Free Village has already been approved and is expected to be
established within the Sintra prison during the first semester of
1999.
169. So as to address the problem of excess
prison population, two new prisons are to be constructed, one in
the south and the other in the central part of the country, as well
as a new female prison establishment.
170. The Governmental Programme Options for
1998 established two priorities in the area of justice:
The continuation of the efforts undertaken to
improve the conditions surrounding the execution of sentences involving
the deprivation of liberty, through an increase in the holding capacity
of the prison system, the establishment of conditions which favour
the social rehabilitation of inmates and the improvement of the
material conditions of certain establishments (by means of Order
No. 20/MJ/96, of 10 February 1996, establishing the Commission for
the Reform of the System of Execution of Sentences and Enforcement
Measures and Order No. 174/97, of 30 June 1997, which establishes
a working group to develop and propose general guidelines for a
work model for inmate occupational purposes).
The establishment of conditions which will allow
the application of non-confinement measures, such as community work.
171. Following the recommendations of the Committee
for the Prevention of Torture which has already undertaken two visits
to Portugal and the reports of the Inspectorate-General of the Ministry
of the Interior, several detention places have been closed down
owing to internal conditions, as referred to in paragraph 52 above.
Ombudsman
172. 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 paragraphs 101 to
105 of the core document (HRI/CORE/1/Add.20), and paragraphs 228
to 236 of the second periodic report (CAT/C/25/Add.10)).
173. We merely add that the Provedor de Justiça
is elected by a two-thirds majority of the Members of Parliament
to serve a four-year renewable mandate and may not be removed from
office before the end of his mandate, except at his own request.
174. The Provedor is completely independent
of the political establishment and acts on his own initiative or
in response to complaints submitted to him by private individuals.
175. The Provedor has no decision-making powers,
but may address recommendations deemed necessary for the prevention
or remedy of injustice to any entity within the Public Administration.
176. The Provedoria de Justiça carries
out inspection tours to prison establishments and drafts reports
containing relevant recommendations to the competent authorities.
Right of petition
177. Under article 52 of the Constitution, all
citizens may, individually or collectively, submit petitions, representations,
claims or complaints for the purpose of defending their rights,
the Constitution, the law or the public interest, to the organs
of supreme authority of the State or to any other authority.
178. Law No. 43/90, of 10 August 1990, as amended
by Law No. 6/93, of 1 March 1993, regulates and safeguards the exercise
of the right of petition through the submission to the organs of
supreme authority of the State, or any other authority, of petitions,
representations, claims or complaints.
179. The petition may also be submitted to the
Commission on Rights, Freedoms and Safeguards of the Assembly of
the Republic, which is empowered to conduct the appropriate inquiries
and refer them to the competent authorities.
Provisions on the custody and treatment of
arrested, detained or imprisoned persons
180. With regard to the provisions on the custody
and treatment of arrested, detained or imprisoned persons, set out
in the Prison Act (Decree-Law No. 265/79, of 1 August 1979, as amended
by Decree Laws No. 49/80, of 22 March 1980, and No. 414/85, of 18
October 1985, we refer the reader to paragraphs 242 to 246 of the
second periodic report (CAT/C/25/Add.10).
Pre-trial detention
181. Pre-trial detention is governed by the
special rules of articles 209 and following of the Prison Act (Decree-Law
No. 265/79, of 1 August 1979, as amended by Decree Laws No. 49/80,
of 22 March 1980, and No. 414/85, of 18 October 1985).
182. Regarding the contents of this rule we
refer the reader to paragraphs 247 to 253 of the Second Periodic
Report (CAT/C/25/Add.10).
Special security measures
183. Article 111 of the Prison Act prescribes
that special security measures may only be applied to detainees
if their conduct or psychological state suggests that they may try
to commit acts of violence against themselves, other individuals
or property.
184. The authorization, responsibility for application
and maximum period of duration of such measures, as well as the
rights of detainees subject to special security measures are specified
in paragraphs 254 to 261 of the second periodic report (CAT/C/25/Add.10).
185. The governor of the institution is responsible
for authorizing the application of the special security cell confinement
measure. The maximum period during which a detainee may be held
in uninterrupted isolation in a special security cell is one month.
However, whenever the governor of the institution determines the
application of this measure for a period exceeding 15 consecutive
days, the decision must be submitted to the approval of the Directorate-General
of Prison Services.
186. All detainees placed in a special security
cell are placed under medical supervision. The institution's physician
must report to the governor on the detainee's physical and mental
state of health, and, if necessary, on the need to terminate the
punishment. Experience has demonstrated that the prison services
usually follow the recommendations of the attending physician.
187. In accordance with a memorandum of the
Directorate-General of Prison Services, detainees are entitled to
remain outdoors for at least one hour per day. This memorandum was
elaborated following a recommendation of the European Committee
for the Prevention of Torture of the Council of Europe.
188. The detainees placed under the special
security regime have the same safeguards as other detainees against
the use of abusive measures. These measures are established by law
and comprise the right to submit a complaint to several entities,
such as the director of the institution, the inspectors, the Directorate-General,
the sentencing judge, the Ombudsman, the Minister of Justice and
the President of the Assembly of the Republic.
189. The Prison Act also expressly provides
for the right of appeal to the Court in Strasbourg.
190. The exchange of communications between
the detainees and the entities referred to above is strictly confidential.
The use of force
191. The provisions regarding the use of force
are set out in articles 196 and following, of the Code of Criminal
Procedure and are specified and described in paragraphs 262 to 265
of the second periodic report (CAT/C/25/Add.10).
192. Article 193 of the Code of Criminal Procedure
establishes proportionality as the rule in all matters pertaining
to the use of force, which must be limited to the time period which
is strictly necessary. Articles 212 and following of the Code of
Criminal Procedure establish that these measures may be revoked,
altered or terminated in the course of the periodic evaluation process
to which they are subject. In addition, it is important to note
that in terms of safeguards, the possibility is provided of appealing
any decision to apply or maintain these measures. This appeal shall
be judged within a maximum period of 30 days after receipt of the
appellate records, pursuant to article 219 of the Code of Criminal
Procedure.
193. Recourse to physical force always requires
a written inquiry into the circumstances determining its application.
194. In the case of conflict between the rules
and guidelines stemming from the prison and police hierarchies and
the Physicians' Code of Ethics, the latter shall prevail over the
former, which may even, in certain cases, be totally ignored. By
way of example, if there is an order for the forced feeding of a
detainee on a hunger strike, the physician concerned may refuse
to abide by such an order, without incurring any criminal or disciplinary
legal sanctions.
Aliens
195. 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.
196. The procedure for receiving aliens or stateless
persons in the temporary settlement centres is set forth in Law
No. 34/94, of 14 September 1994, which calls for the additional
application to aliens, settled in them for reasons of security,
of the special rules for pre-trial detention provided for in the
Prison Act.
Article
12
197. 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
198. Any victim of ill-treatment, abuse of authority
or of the use of excessive force is entitled to lodge a complaint,
which must necessarily be accepted.
199. The complaint may be lodged with either
the administrative or judicial authorities, or simultaneously with
both. The acts in question are dealt with through internal police
disciplinary measures, as well as administrative inquiries ordered
by the internal hierarchy of the bodies concerned, or through criminal
proceedings before the competent courts.
200. The decision to institute disciplinary
proceedings lies with the hierarchy of the security forces and relevant
the Ministry. The possibility of appealing the decisions of these
authorities to the competent administrative courts is, however,
always available.
201. For details of the disciplinary proceedings,
we refer the reader to paragraphs 272 to 285 of the Second Periodic
Report (CAT/C/25/Add.10).
202. The following table provides statistics,
obtained from the Office of the Attorney General, on alleged crimes
perpetrated by police officers. (The data is current as at 31 March
1998.)
Types of offences (criminal acts) while on duty for which
complaints were lodged against police officers
| Type of offence |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
Total |
| Voluntary physical offences |
111 |
180 |
255 |
206 |
175 |
159 |
91 |
1 177 |
| Abuse of powers |
41 |
46 |
53 |
70 |
59 |
65 |
17 |
351 |
| Threats |
16 |
24 |
31 |
26 |
20 |
23 |
5 |
145 |
| Illegal arrest |
15 |
19 |
31 |
19 |
29 |
10 |
7 |
130 |
| Injury |
24 |
40 |
49 |
35 |
36 |
17 |
11 |
212 |
| Murder (consummated/attempted) |
1 |
0 |
3 |
3 |
1 |
2 |
0 |
10 |
| Involuntary manslaughter |
1 |
3 |
2 |
8 |
3 |
3 |
1 |
21 |
| Forced deposition |
8 |
10 |
16 |
15 |
10 |
1 |
1 |
61 |
| Use of force |
5 |
6 |
14 |
7 |
12 |
9 |
2 |
55 |
| Wrongful initiation of proceedings/failure to
initiate proceedings |
6 |
10 |
9 |
8 |
12 |
2 |
2 |
49 |
| Corruption |
3 |
6 |
12 |
7 |
15 |
5 |
6 |
54 |
| Other crimes |
54 |
82 |
107 |
77 |
77 |
70 |
60 |
527 |
| Total |
285 |
426 |
582 |
481 |
449 |
366 |
203 |
2 792 |
Note: The numbers registered pertain to criminal
acts that have been denounced and not to crimes actually committed,
the occurrrence of which can only be confirmed or not, after investigation
and trial.
Proceedings - while on duty
| Proceedings |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
Total |
| 1. Proceedings instituted |
192 |
303 |
424 |
336 |
330 |
280 |
179 |
2 044 |
| 2. Accusations |
58 |
82 |
90 |
70 |
47 |
43 |
14 |
404 |
| 3. Amnesties |
2 |
5 |
15 |
6 |
0 |
0 |
1 |
29 |
| 4. Retracted complaints |
5 |
8 |
19 |
15 |
15 |
16 |
5 |
93 |
| 5. Filed for other reasons |
28 |
53 |
66 |
45 |
57 |
28 |
18 |
295 |
| 6. Total filed (3+4+5) |
35 |
76 |
100 |
66 |
72 |
44 |
24 |
417 |
| 7. Insufficient evidence |
76 |
101 |
162 |
125 |
123 |
84 |
31 |
702 |
| 8. Referred to military justice |
18 |
22 |
28 |
16 |
12 |
8 |
0 |
104 |
| 9. Total concluded (2+6+7+8) |
187 |
281 |
380 |
277 |
254 |
179 |
69 |
1 162 |
| 10. Pending investigation |
5 |
22 |
44 |
59 |
76 |
101 |
110 |
417 |
| 11. With conviction |
15 |
15 |
22 |
9 |
6 |
1 |
1 |
69 |
| 12. With acquittal |
17 |
9 |
8 |
8 |
3 |
3 |
0 |
48 |
| 13. Trial pending |
18 |
45 |
53 |
46 |
33 |
37 |
13 |
245 |
| 14. Concluded before trial |
8 |
13 |
7 |
7 |
5 |
2 |
0 |
42 |
Officers charge by police organs
- while on duty
| Officers charged (accusation) |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
Total |
| Public Security Police |
248 |
338 |
473 |
400 |
383 |
370 |
209 |
2 421 |
| National Republican Guard |
73 |
102 |
124 |
126 |
113 |
111 |
44 |
693 |
| Judicial Police |
23 |
39 |
52 |
39 |
46 |
25 |
15 |
239 |
| Customs Police |
1 |
13 |
22 |
4 |
1 |
0 |
1 |
42 |
| Directorate General for Economic Inspections |
1 |
1 |
0 |
0 |
0 |
0 |
0 |
2 |
| Prison guards |
5 |
0 |
7 |
11 |
14 |
11 |
8 |
56 |
| Municipal Police |
0 |
1 |
2 |
1 |
0 |
2 |
0 |
6 |
| Forest Rangers |
0 |
1 |
1 |
5 |
1 |
0 |
5 |
13 |
| Total for the year |
351 |
495 |
681 |
586 |
558 |
519 |
282 |
3 472 |
Article
13
203. 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, which are required to examine the complaint
promptly and impartially.
204. Article 21 of the Constitution stipulates
that "Everyone has the right to refuse to comply with an order
that infringes his or her rights, freedoms or guarantees and to
resist by force any form of aggression when recourse to a public
authority is impossible."
Access to the law and the courts
205. Decree-Law No. 387-B/87 of 29 December
1987 defines the conditions for access to the law and the courts,
in order to ensure that everyone, regardless of economic, social
or cultural status, is allowed to assert or defend his or her rights.
206. These goals are achieved by means of actions
and mechanisms designed to provide legal information and protection.
Legal protection takes the form of legal counselling and legal aid.
207. The rules governing legal aid are set out
in Decree-Law No. 387-B/87, of 29 December 1987, Decree-Law No.
391/88, of 26 October 1988, as amended by Law No. 133/96 of 13 August
1996 and Law No. 46/96 of 3 September 1996.
208. Recently, Law No. 46/96, of 3 September
1996 has extended legal aid to non-resident aliens on condition
of reciprocity.
209. Legal aid includes total or partial exemption
from court and lawyers fees and/or free consultation in free legal
counselling offices, established for this purpose.
210. So as to facilitate the functioning of
the pro-bono legal counselling system, article 19 of Decree-Law
No. 387-B/87, of 29 December 1987 stipulates that "proof of
the applicant's economic hardship can be accomplished by any suitable
means".
211. In keeping with the avowed concern of the
State to ensure every citizen equal access to the law, the Bar Association
imposes upon its professional members the obligation of participating
in this objective.
212. The Statute of the Bar Association, provided
for in Decree-Law No. 84/84, of 16 March 1984, as amended by Decree-Law
No. 119/86, of 28 May 1986 and Law No. 33/94 of 6 September 1994,
stipulates as one of the duties of the lawyer, the provision of
pro bono services, or free legal counselling, for which he will
later be paid by the State. Article 85, paragraph 1 states: "A
lawyer should not, without justifiable motives, refuse free legal
counselling."
213. Pursuant to article 11, paragraph 1 of
Decree-Law No. 391/88, of 26 October 1988, which governs legal aid,
the fees paid to lawyers and solicitors legal aid services, as well
as justifiable expenses which they have incurred, will be paid from
the court's general expense account.
214. In order to guarantee economically challenged
citizens the same legal counselling, on a free basis, as is available
to more economically endowed citizens, 11 legal counselling offices
were established by Decree-Law No. 387-B/87 of 29 December 1987.
The right to lodge a complaint before public
authorities and entities
215. Recourse to the Ombudsman (Provedor da
Justiça) is provided for and safeguarded under the conditions
mentioned in paragraphs 172 to 176 of the present report.
216. The right of detainees to lodge a complaint
is governed by Decree-Law No. 265/79, of 1 August 1979, referred
to in paragraph 180 above.
Protection of judges, witnesses and experts
217. The Portuguese legal system makes no specific
provision for the protection of witnesses, experts, judges, prosecutors,
judicial officials and jurors against intimidation practices which
may pose a threat to their life or physical integrity or that of
their closest relatives. However, studies are currently under way
with a view to the preparation of legislation in this area.
218. However, the absence of specific legal
provisions for the protection of such persons does not imply that
practical measures may not be adopted in this regard at the administrative
level, based on the particular circumstances of each case and the
protection of fundamental rights, freedoms and safeguards.
219. Decree-Law No. 43/91, of 22 January 1991,
which authorizes international co-operation in criminal matters
is described in greater detail in paragraphs 298 and 299 of the
second periodic report (CAT/C/25/Add.10), and is, as previously
mentioned in the present report, currently being revised.
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220. Portuguese law provides several means by
which compensation may be obtained. The general rule is contained
in article 483, paragraph 1 of the Civil Code, which stipulates
that, "anyone who wilfully or negligently violates the rights
of another person or any legal norm for the protection of the rights
of others, must pay compensation for damage resulting from the violation".
The liability of the authorities
221. Article 22 of the Constitution, which has
not been amended, is described in paragraph 301 of the second periodic
report (CAT/C/25/Add.10). This article reads as follows:
"The State and other public bodies shall
be jointly and severally liable under the civil law, with the members
of their organs, their officials and other personnel, for acts or
omissions in the performance of their functions, or caused by the
performance of their functions, which result in contravention of
rights, freedoms or guarantees or in damage to another person."
Civil liability deriving from a crime
222. Portuguese criminal law and criminal procedure
law provide for civil liability deriving from a crime (art. 129
of the Criminal Code). The civil liability deriving from a crime
provided for in articles 71 and 377 of the Code of Criminal Procedure
and the system of indemnity derived therefrom are described respectively
in paragraphs 303 and 304 and paragraphs 305 to 311 of the second
periodic report (CAT/C/25/Add.10). As stated in paragraph 20 above,
the proposed bill on the revision of the Code of Criminal Procedure
introduces the possibility for the court to award damages with the
effect of criminal conviction, for losses suffered, when special
considerations for the protection of the victim so require.
Victims of violent crime
223. In conformity with article 130 of the Criminal
Code, Decree-Law No. 423/91 of 30 October 1991, determines the legal
regime for the protection of victims of violent crime.
224. This statute was amended by Law No. 10/96
of 23 March 1996, but only as applicable to acts committed before
the entry into force of Decree-Law No. 400/82, of 23 September 1982
to establish the time limit governing application for compensation
in these cases.
225. The system of compensation for victims
of violent crimes is described in paragraphs 54 to 56 above and
in paragraphs 313 to 327 of the second periodic report (CAT/C/25/Add.10).
226. The statistics of the Commission for Compensation
of the Victims of Violent Crimes on provisions and compensation
awarded in 1996 / Source: Justice files, September 1997,
Bureau of Studies and Planning of the Ministry of Justice/, are
the following:
Provisions awarded
Cases in which provisions were awarded : 2
Highest provision awarded : Esc 500,000
Lowest provision awarded : Esc 200,000
Compensation awarded
Cases in which compensation was awarded : 25
Number of petitioners who benefited : 31
Highest award : Esc 4,000,000
Lowest award : Esc 150,000
Total awards : Esc.62,471,000
Average award : Esc 2,498,840
Compensation of civil and military officials,
jurors, mayors and women
227. Regarding this matter, we refer the reader
to paragraphs 329 to 333 of the second periodic report (CAT/C/25/Add.10).
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228. Article 32, paragraph 8 of the Constitution
stipulates: "Evidence is of no effect if it is obtained by
torture, force, infringement of the physical or moral integrity
of the individual, or wrongful interference with private life, the
home, correspondence or telecommunications."
229. Further to the constitutional guarantees,
article 126 of the Code of Criminal 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.
230. The above-mentioned article, which has
not been amended, is discussed in paragraphs 335 to 337 of the second
periodic report, (CAT/C/25/Add.10).
231. Under article 140 of the Criminal Code
an accused person, even when detained, must be allowed freedom of
movement, except if circumstances require otherwise. This measure,
which expresses the constitutional principles regarding personal
dignity and the proportionality of measures for the deprivation
or restriction of freedom, will further contribute to ensuring the
protection of individuals against acts of torture.
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232. As previously mentioned not only torture,
but cruel, degrading or inhuman treatment or punishment are criminalized,
pursuant to the Convention.
233. The cases referred to in the present report
often constitute violations of physical integrity, which are punishable
under articles 243 and 244 of the new Criminal Code following the
1995 revision.
234. As described in the present Report and
in those submitted previously, the Portuguese legal system effectively
prohibits any act that might constitute cruel, inhuman or degrading
treatment.
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