HUMAN RIGHTS COMMITTEE CONSIDERS FOURTH PERIODIC REPORT OF PORTUGAL
24 October 2012
The Human Rights Committee this morning concluded its consideration of the fourth periodic report of Portugal on how this country has implemented the provisions of the International Covenant on Civil and Political Rights. At the end of the meeting this morning, the Committee continued discussion of its working methods.
Graça Andresen Guimarães, Permanent Representative of Portugal to the United Nations Office at Geneva, introduced the report and said that measures had been taken to address the issue of excessive use of force by law enforcement officers, to combat child labour and exploitation and to improve access for Roma to housing, employment, health and social services. The institutional framework for the protection of human rights in Portugal had been greatly improved with the creation of national human rights institution of Portugal in April 2010.
Also introducing the report, Jose Manuel Santos Pais, Deputy Attorney General of Portugal, said that participation of women in politics and decision-making positions on equal terms was still far from the desired goals. Special measures to address the complex phenomenon of terrorism, including in obtaining evidence and regarding rights of defence, were in place in Portugal and were always supported by adequate safeguards. Portugal highlighted the crucial place of training in preventing racist and discriminatory conduct by law enforcement officers and said that incommunicado detention was not foreseen in the law.
The Committee noted the absence of non-governmental organizations from Portugal and wondered whether it was because of a lack of interest in the proceedings in this Committee. Experts appreciated the frankness of Portugal in recognizing the deficit in the participation of women in politics and decision-making positions and asked whether special temporary measures, including positive discrimination, were being considered and how the principles of equal pay for equal work would be guaranteed, including in the private sector. Other issues taken up by the Committee included integration of immigrants, measures to improve the situation of Roma, counter-terrorism measures and rendition flights, the system of pre-trial detention and rights of detainees, and domestic violence and violence against children.
In closing remarks, Mr. Santos Pais thanked the Experts for their comments and thoughts that would help Portugal to be in better compliance with the provisions of the International Covenant on Civil and Political Rights. H.E. Andresen Guimarães said that Portugal was actively engaged in the ongoing process of strengthening the treaty bodies and would continue to actively support their independence. Portugal reiterated the importance it attached to its candidature for membership to the Human Rights Council for 2013 to 2017, which was among its national priorities.
Michael O’Flaherty, Committee Vice-Chairperson thanked the delegation for a very engaging dialogue and said that the concluding observations would be transmitted to Portugal in writing.
At the end of the meeting the Committee took up its methods of work and discussed the upcoming informal retreat in The Hague in April 2013, which would be an opportunity to reflect on the changing environment it operated within, alongside other nine treaty bodies.
The delegation of Portugal included representatives of the Office of Attorney-General, Ministry of Foreign Affairs and the Permanent Mission of Portugal to the United Nations Office at Geneva.
The next public meeting of the Human Rights Committee will be at 3 p.m. tomorrow, 25th October, when it will hold half day discussions on General Comment on Article 9.
The fourth periodic report of Portugal can be read here: (CCPR/C/PRT/4).
Presentation of the Report
Graça Andresen Guimarães, Permanent Representative of Portugal to the United Nations Office at Geneva, noted that Portugal had taken many important steps to address the recommendations issued by the Committee following the consideration of its previous report. The 2002 Code of Ethics continued to play a fundamental role in addressing the issue of excessive use of force by law enforcement officers, while new rules had been enacted in 2004 on the procedure for detention in police stations.
Measures had been taken to reduce the prison population, including increasing the number of places available and the development of alternatives to imprisonment (including electronic tags) which also reduced the incidence of pre-trial detention. Important amendments had been introduced in 2008 to prohibit refoulement of refugees and asylum seekers to countries where there was reason to believe that person could be subject to torture or other cruel or degrading treatment. Protection of the family life of aliens had been reinforced pursuant to the new legal framework for the entry, stay and removal of aliens, which prohibited the expulsion of persons effectively in charge of children residing in Portugal. Measures had been taken to combat child labour and exploitation and to improve the access of Roma to housing, employment, health and social services. The institutional framework for the protection of human rights in Portugal had been greatly improved with the creation in April 2010 of the national human rights institution of Portugal. Other bodies with competence in human rights had also been established and several comprehensive national action plans had been adopted in favour of persons with disabilities, combating human trafficking, and others. The scope of the law on discrimination had been enlarged to include discrimination based on gender or sexual orientation. Several of the European Union directives related to discrimination had been transposed to Portugal’s legal order. The 2007 amendments to the Code of Civil and Criminal Procedures had allowed for revision of sentences if they were incompatible with a decision of an international body or international treaty binding upon Portugal.
JOSE MANUEL SANTOS PAIS, Deputy Attorney General of Portugal, said that the Covenant was invoked before domestic courts, even though the need to refer to international treaties was not so much felt as a necessity, but as a complement to constitutional and other domestic provisions on those rights and freedoms. Portugal was still considering the best solution to the case of Correia de Matos, which was a very sensitive issue because the decision by the European Court of Human Rights was at stake. The participation of women in politics and decision-making positions continued to be an area of great concern in Portugal and notwithstanding the progress made in four decades of democracy, women’s participation on equal terms was still far from the desired goals. The new Labour Code of 2009 tried to reinforce the fundamental principle of equal pay for equal work, but a specific funding line had been created to support the implementation of equality plans in local and central administration. Due to the particular danger of terrorism and related activities such as organized crime, special measures were required to address this phenomenon, including in matters relating to obtaining evidence and rights of defence; and those special measures were always supported by adequate safeguards. Portugal highlighted the crucial place of training in preventing racist and discriminatory conduct by law enforcement officers and said that there was no incommunicado detention foreseen in the law.
Questions by Experts
GERALD NEUMAN, Committee Rapporteur for the report of Portugal, said that the European Convention on Human Rights protected some rights to a greater degree than the International Covenant on Civil and Political Rights and some to a lesser extent; how did Portugal ensure that the legal profession looked towards the Covenant and applied it in the areas where it was stronger that the European Convention? What was the mechanism for the follow up to the views of the Committee? What were the plans for the ratification of the Optional Protocol Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the establishment of the national preventive mechanism?
Another Expert appreciated the frankness of Portugal in recognizing the deficit in the area of participation of women in politics and decision-making positions and asked about the measures taken to increase this participation. How would laws and special measures be implemented to guarantee equal pay for equal work, including in the private sector? Concerning the measures taken to improve the situation of Roma, the Expert asked about the results of the pilot project that had been completed in September and the results of the Third Action Plan for the Roma that had ended in 2010? The resolution of the Council of Ministers had established the programme for integration of immigrants, so called P2; what were the reasons behind the 80 per cent success rate of P2?
Committee Experts also took up the issue of counter-terrorism measures and asked about incommunicado detention as ordered by the public prosecutor, whether they could also deny access to a lawyer, how it worked in practice and were those measures subject to judicial supervision. They also requested additional information concerning rendition flights.
Response by Delegation
International law ratified by Portugal was legally binding in courts and was considered as domestic law; though there was the issue of hierarchy as many considered that international law was above domestic law and under the constitutional law. The Constitutional Court addressed conflicts between domestic and international law. There was great interest in Portugal in learning about international instruments to which the country adhered and from which obligations of State and domestic courts arose. The main issue concerning the case of Correia de Matos was not the disagreement of Portugal with the decision of the European Court of Human Rights, but was the question of defence; it was considered in Portugal that defending oneself in court on criminal charges was not the best course of action.
External evaluation of the III National Plan on Equality had been conducted; overall, 80 per cent of measures therein were successfully implemented. Success had been particularly evident in gender mainstreaming in the system and the establishment of the post of gender advisers on various levels. The level of implementation was 76 per cent in education, investigation and training. In terms of gender equality, plans had been adopted to eliminate discrimination and sought reconciliation between family and professional life. The III National Plan on Equality had run concurrently to the First National Action Plan on Trafficking in Human Beings and the National Plan against Violence against Women. Following the recommendations of the external evaluation team, the IV Action Plan had introduced significant structural changes, which provided for better communication and management of the plan as a whole. There was no positive discrimination in place to ensure and increase the participation of women in the public sector.
The pilot project for Municipal Roma Mediators was now it its second phase and focused on housing, employment and other sectors; the project was a success and in many municipalities the presence of the mediator resolved conflicts, built bridges to municipal services and allowed for the most appropriate responses. The First Integration Plan for Immigrants sought to consolidate the obligations of the state of Portugal in relation to integration of immigrants in employment, housing, education and in cross cutting issues such as racism and gender.
The crime of terrorism was increasingly global in nature and required a coordinated global response, and that was why Portugal belonged to several international institutions whose main concern was the rule of law, for which international cooperation was essential. It was important to say that the rules of procedure for suspected terrorism were always criminal, and required the presence of a prosecutor and an investigating judge whose aim was to ensure the rights of the accused; Portuguese legislation in this area was very strict. Terrorist suspects enjoyed regular rights and the prosecutor and judge were the guardians of those rights. There were a few special measures in place to address the extraordinary and complex nature of terrorism: there was a mild limitation of the right to defence which included limiting the right to communicate; restrictions to communicate in private with lawyer (garde à vue); phone tapping was undertaken only upon court order. Investigation into cases of rendition flights carrying Guantanamo prisoners though Portugal’s airspace had been launched by the office of prosecutor in June 2009, who had established that the claims lacked in evidence.
The Office of the Ombudsman was a fairly recent organ in Portugal and its duty was to address complaints from citizens, mainly on the activities of public bodies. There had been 6,731 complaints addressed to the Office in 2009, mainly concerning social security, public sector employment and consumer rights; 6,411 cases had been addressed in 2010 on the same issues, 5,786 complaints in 2011 also included those on nationality law. The large majority of recommendations addressed by the Office of the Ombudsman had been accepted by Government agencies.
Follow-up Questions and Answers
In a series of follow-up questions and comments, Committee Experts noted the obligation of State Parties to the Covenant to adopt special temporary measures, including positive discrimination, to address gender equality and asked whether there had been any discussions in Portugal in this regard. What powers existed within Portugal to see that obligations incurred under the Covenant could be fully realized in all corners of the State, including in Autonomous Regions? Turning to the case of Correia de Matos, the Experts questioned the compulsory access to a lawyer.
Responding, the delegation said that when it came to admission to the public sector, there were no quotas for women or any other groups. The delegation agreed on the rationale of temporary special measures and said that a number of them were being discussed in Portugal in relation to gender equality and in anti-discrimination. The 2011 Plan on Gender Equality envisaged specific funding lines to create and support the implementation of equality plans in local and central administration and in public and private companies.
Rights and freedoms applied to all territories of Portugal, while Autonomous Regions had power in the area of elections and so the Parliament did not have the competence there.
Presentation of the Report
JOSE MANUEL SANTOS PAIS, Deputy Attorney General of Portugal, presented a summary of replies to the list of issues in relation to prohibition of torture and cruel and inhuman treatment or punishment, right to liberty and security of person and treatment of persons deprived of their liberty. He said that conditions for pre-trial detention, which was an exceptional measure, were laid down in the Criminal Procedure Code. Several initiatives had been taken over the past several years to address the scourge of the excessive use of force by law enforcement officials, inducing initial and advanced training of officers, the definition of clear rules on the principles of the use of force, monitoring and inspection and others. Domestic violence was still a very sensitive issue in Portugal. The legal concept of domestic violence had been fine tuned and covered physical and psychological abuse; the concept of a victim had been widened to include violence against ex-spouses; and the crime was now an autonomous crime, not dependent upon a complaint by the victim; penalties had been increased. All forms of corporal punishment against children had been criminalized and several measures had been taken to raise awareness on this subject within families, civil society, professionals and public and private authorities. Portugal had set up an Observatory on trafficking in human beings and had developed a guide to promote alternatives to the institutionalization of children with disabilities. In March 2010, the Portuguese National Commission on human rights had been set up to work as a permanent structure to prepare national reports and examination processes by international human rights bodies.
Response by Delegation
The 2007-2009 Plan of Integration of Immigrants had seen an overall success rate of implementation of 80 per cent, with varying rates across different sectors. The full implementation had not been achieved in housing, discrimination and racism, and in gender issues, where the success rate was between 50 and 60 per cent. The reasons for not achieving the goals in full were due to the impacts of the financial crisis.
Questions by Experts
Committee Experts noted the absence of non-governmental organizations from Portugal and wondered whether it was because of lack of interest in the proceedings in this Committee rather than because of austerity measures. Expectations in terms of compliance with human rights obligations were high because Portugal had been a member of the European Union for 26 years. Experts asked for explanations concerning pre-trial detention, including its duration, the rights of detained including the right to legal representation, and presence of counsel, particularly in relation to counter-terrorism. The Committee sought clarification on the use of firearms, the use of tasers by law enforcement agencies and the complaints lodged on the use of force by police during the pre-trial period. Concerning the situation in prisons, the Experts asked about the overall figure for the prison population, the plans for new prison construction and the situation with regard to making facilities drug-free.
The Committee inquired about the status of the Code on the Execution of Sentences and Security Measures; the system of juvenile detention and whether juvenile and adult offenders were separated. Committee Experts also asked questions concerning shelters for victims of domestic violence, criteria used to decide how to respond to domestic violence by non-punitive measures and improvements in receptiveness of judges to restraining orders.
The delegation was also asked to clarify the figures provided on trafficking in human beings; talk about results of the First National Plan to Combat Trafficking in Persons; provide information on outcomes of the study on trafficking of women for purposes of sexual exploitation and of the National Action Plan for Integration of Persons with Disabilities.
Response by Delegation
One of the objectives of the creation of national human rights institutions was to increase dialogue with non-governmental organizations active in the field of human rights. The Government shared the report with non-governmental organizations and asked for their inputs and comments and encouraged them to submit shadow reports and to participate in the interactive dialogue with this Committee.
Pre-trial detention for identification purposes was a police measure; at this stage, there was no suspicion that a person was a suspect in a crime; the person had access to a phone and contact with family or relatives and was released upon presentation of an identification document. Persons found in the vicinity of a crime scene had an obligation to identify themselves to the police. Monitoring mechanisms for pre-trial detention had seen important changes over the past several years and included internal and external mechanisms and the mechanisms within the Public Prosecution Department.
Taser weapons were distributed selectively to the police force, and their use was subjected to very strict scrutiny. Training had been launched to allow the law enforcement officers to know when and how to use those weapons. Portugal did not have the statistics concerning the average length of pre-trial detention, but this lack of statistical evidence was countered by the fact that pre-trial detention was framed by minimum and maximum lengths of detention defined by the 2007 amendment to the Criminal Code and the periodic review of pre-trial detention on a quarterly basis for special cases, in which the lawfulness of the pre-trial detention was verified. A total of 145 complaints had been filed concerning the use of force by the police: five had resulted in sentencing, 125 had been dropped and 15 were in process.
The new Code of Enforcement of Sentences, in force since 2010, had updated the system dating back to 1979 and replaced it with the sole document containing the principles for enforcement of sentences and custodial measures. The capacity of prisons had been increased by an additional 2,137 places. Drug users were evaluated for their motivation and could ask for a transfer to a prison where they could follow a treatment programme. Sentenced and non-sentenced juveniles were not separated, even though they followed different rules in the detention facilities; juveniles were never housed with adults.
Domestic violence was still a scourge in Portugal and shame often prevented victims from reporting it to the authorities. Significant efforts had been undertaken over the past several years to limit these kinds of offences, including a campaign to systematically raise awareness about the issue and alternative measures to change the behaviour of both victims and offenders. Some 1,900 convictions had been issued for domestic violence; the most frequent was violence between partners. The number of crimes registered with the police was 23,263 in 2008; 25,129 in 2010 and 23,743 in 2011. The majority of victims were women and the number of reported cases that were brought before the court had increased since 2009 and the passing of the Law on Domestic Violence and the law on compensation to victims of domestic violence. The main concern in the efforts to address domestic violence was to prevent it from happening, and measures included help lines, shelters, psychological support and others. There were now 36 shelters with a capacity of about 600 victims of domestic violence and their children. There had been a major shift in the use of electronic surveillance for offenders and the judiciary better access and recourse to alternative measures to prevent victims being assaulted again.
In 2008 there had been 25 victims of human trafficking, 24 in 2009, six in 2010 and 15 in 2011. 113 persons had been convicted for the crime of trafficking in persons in 2008, 91 in 2009 and 94 in 2010. Human trafficking was not as significant problem as it was in other countries and there was a need to increase awareness of the public about the phenomenon and its criminal nature. The Second National Plan to Combat Trafficking in persons 2010-2013 was ongoing and involved the cooperation between many ministers and other public bodies and agencies. In Portugal, victims of trafficking in persons had access to shelter where they could obtain the necessary support.
A study on trafficking of women for sexual exploitation had been conducted in 2007 and had produced a number of recommendations and conclusions, including the need to increase awareness about the phenomenon and develop preventative measures. Of the 99 measures contained in the National Action Plan for Integration of Persons with Disabilities, 68 had been implemented, 12 were being implemented and nine were still to be implemented. The Portuguese Institute for Rehabilitation was in charge of the implementation of the Action Plan and the National Strategy. The law on domestic violence provided a framework in which ill treatment of children could be addressed, including corporal punishment, even though it had not been clearly defined.
Responding to the follow up questions concerning the length of pre-trial detention and about separation from adults in detention facilities of juveniles over the age of 16, the delegation said that there were no statistical data that could indicate the average length of pre-trial detention, mainly because minimum and maximum time of pre-trial detention were strictly defined. Children under 16 were never held with adults; children older than 16 could be in the same facility as adults but were always kept physically separate from them.
JOSE MANUEL SANTOS PAIS, Deputy Attorney General of Portugal, in his closing remarks said that this interactive dialogue was a very stimulating experience and thanked the Committee Experts for their comments and thoughts that would help Portugal to be in better compliance with the provisions of the International Covenant on Civil and Political Rights.
Graça Andresen Guimarães, Permanent Representative of Portugal to the United Nations Office at Geneva, in her closing remarks said that dialogue was deeply enshrined in the conscience of Portugal, which was ready to learn from the Experts and share with them the information about efforts and measures and policies to ensure the promotion and protection of human rights. Portugal was actively engaged in the ongoing process of strengthening treaty bodies and would continue to actively support their independence. Portugal regretted that Portuguese non-governmental organizations had not participated in this session and reiterated its commitment to cooperation with civil society. Portugal attached great importance to its candidature for a membership in the Human Rights Council for 2013 to 2017, which was among its national priorities.
MICHAEL O’FLAHERTY, Committee Vice-Chairperson, in his preliminary concluding observations, thanked the delegation for very engaging dialogue and said that the recommendations and comments by the Committee would be transmitted to Portugal in writing.
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