por Portugal aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
COMMITTEE AGAINST TORTURE, Eleventh
SUMMARY RECORD OF THE PUBLIC
PART* OF THE 167th MEETING
Held at the Palais des Nations, Geneva, on Tuesday, 16 November
1993, at 3 p.m.
Chairman: Mr. VOYAME
Consideration of reports submitted by States
parties under article 19 of the Convention (continued)
Initial report of Portugal (continued)
* The summary record of the private part of
the meeting appears as document CAT/C/SR.167/Add.1.
The meeting was called to order at 3 p.m.
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 4) (continued)
Initial report of Portugal (continued) (CAT/C/9/Add.15)
1. At the invitation of the Chairman, Mr. Henriques
Gaspar, Mrs. Alves Martins, Mrs. Mota Matos, Mr. Gomes Dias, Mr.
Bastos and Mrs. de Gouveia Araujo (Portugal) resumed their places
at the Committee table.
2. Mr. HENRIQUES GASPAR (Portugal) said that
before replying to the questions put to his delegation by members
of the Committee at the previous meeting, he wished to make it clear
that Portugal was a democratic and pluralistic State under the rule
of law. Moreover, its legislative instruments were up to date and
its institutional machinery for the protection of human rights effective
3. The acts mentioned in article 1 of the Convention
were offences under the Portuguese Penal Code; the penalties were
increased if the perpetrators of torture and ill-treatment were
public servants or members of the security forces. The public prosecutor's
department, which was responsible for the investigation, was completely
independent of the executive and administrative branches and acted
strictly in accordance with the principle of legality. Its decision
whether or not to proceed with a case was taken in a completely
objective manner on the basis of the evidence collected during the
investigation. The punishment was decided upon by the courts in
accordance with the principles of humanism and equity on the basis
of the facts, evidence and circumstances. Prison sentences usually
ranged from a minimum of 1 month to a maximum of 21 years, but the
Penal Code stated that the maximum prison sentence for the most
serious cases could be 25 years.
4. With regard to the direct applicability of
article 1 of the Convention, he said that the fact that the crime
of torture was not yet specified as such in the Penal Code did not
mean that there could be no prosecution under that Code for acts
corresponding to a form of torture or ill-treatment; offenders were
prosecuted and sentenced on the basis of articles 132, 144, 156,
157, 412, and 417 of the Penal Code. However, as had already been
said, the Penal Code was being revised. It had been decided to include
articles on the crime of torture under the heading of "Torture
and other cruel, degrading or inhuman treatment". The first
of those articles provided that any person responsible for the custody
of detainees and for the prosecution of offenders who inflicted
torture or cruel, degrading or inhuman treatment upon any such person
for the purpose of obtaining from him or from another person a confession,
a statement, a declaration or information, or to intimidate that
person or another would be sentenced to between one and five years'
imprisonment if the acts did not constitute a more serious offence.
The sentence was imposed regardless of whether the person acted
on his own initiative or own the order of a superior. In the draft
penal code, torture and cruel, degrading and inhuman treatment were
defined as any act consisting in the infliction of physical or acute
mental suffering and any act entailing the use of a chemical substance,
drug or any other natural or artificial substance with the intent
of seriously diminishing a person's ability to express his will
freely. Another article in the draft penal code, covering the most
serious crimes, provided that any person who, in the conditions
set out in the previous articles, seriously impaired the physical
integrity of another by means of particularly severe forms of torture
(such as blows, electric shocks, mock execution or hallucinogenic
substances) or habitually practised such acts, would be sentenced
to a term of imprisonment of between 3 and 12 years. If the torture
and ill-treatment inflicted resulted in the suicide or death of
the victim, the offender could be sentenced to between 5 and 15
5. With respect to the legislative competence
of the Government in certain matters relating to citizens' rights
and freedoms, he read out article 168 of the Constitution, entitled
"Relatively reserved legislative powers". The article
listed matters within the competence of the Assembly of the Republic
save where the Government had been authorized to legislate. It specified
that the laws granting authorization to legislate determined the
subject, the intent, and the scope of the authorization, as well
as its duration.
6. As far as the jurisdictional functions and
status of judges was concerned, he referred to article 205 to 206
of the Constitution. The courts were independent and subject only
to the law. The judges of the courts of law formed a single body
governed by a single statute. They were irremovable and could not
be transferred, suspended, retired or dismissed except as provided
by law. They could not be held liable for their decisions except
as provided by law.
7. In reply to Mr. Khitrin's question on the
status and functioning of the public prosecutor's department, he
said that the Office of the Public Prosecutor was that department's
supreme organ and comprised judges who enjoyed autonomy and were
independent of the other branches of Government, and in particular
the executive and the Minister of Justice. Under the law its functions
included the protection of legality, the representation of the State
in the courts, the exercise of criminal action and the direction
of criminal investigations.
8. Members of the Committee had inquired about
the Provedor de Justiça or ombudsman. The Provedor was appointed
in accordance with, and his activities were governed by, article
23 of the Constitution. He was elected by the Assembly of the Republic
by a two-thirds majority for a period of four years and could be
re-elected. He was independent of all branches of the Government,
examined the complaints he received from citizens, and although
he had no decision-making power, he made such recommendations as
were necessary to the competent bodies in order to prevent and remedy
any injustice. When a case involving a complaint came before the
courts, the ombudsman could only follow the proceedings and make
recommendations to speed them up. He was also authorized to visit,
without prior notification, places of detention such as police stations,
to speak in private with persons in custody and to take appropriate
action if he observed any irregularities.
9. With regard to the disciplinary or criminal
sanctions applicable to members of the police force, he explained
that police officers could be brought before internal disciplinary
bodies and criminal proceedings instituted by the public prosecutor's
department under the Code of Criminal Procedure.
10. With respect to the question of secrecy
in the administration of justice raised by Mr. Burns, he said that
the principle applied was that justice should be administered in
public except in the initial stages of the investigation; in other
words, secrecy was maintained until the public prosecutor's department
had taken a decision to prosecute. Secrecy of investigation was
an inherent part of Portuguese doctrine and tradition, and was regarded
as a safeguard for the accused, who was presumed innocent, and as
a means of checking evidence more effectively.
11. The state of siege and state of emergency
were both governed by article 19 of the Constitution on the suspension
of the exercise of rights. He emphasized that, under article 19,
paragraph 6 of the Constitution, the declaration of a state of siege
could in no case affect the rights to life, personal dignity and
identity, civil capacity and citizenship of the person, the non-retroactive
nature of criminal law, the right to defence of accused persons,
and the freedom of conscience and religion. The state of siege was
also governed by Act No. 44/1986 of the Assembly of the Republic.
In point of fact, a state of siege had never yet been declared and
it was to be hoped that it never would.
12. All places of detention in Portugal had
been established and were organized in accordance with the law.
The rights of accused persons in police custody and the period of
pre-trial detention were set out in article 32 of the Constitution
on safeguards in criminal proceedings. For example, the accused
had the right to choose and to be assisted by counsel at all stages
of the proceedings, and the cases and stages in which such assistance
was compulsory were specified by law. Under article 28 of the Constitution,
on remand in custody, if there was no charge, the detention had
to be validated or continued by an order within 48 hours, the court
had to hear the reasons for the detention, inform the prisoner thereof,
interrogate the latter and allow him or her the chance to defend
him or herself. A detained person could choose his lawyer or ask
for one to be appointed.
13. The maximum period of police custody before
a person was brought before a judge was specified in the Constitution
and could never be more than 48 hours. The maximum period of pre-trial
detention was indicated in article 215 of the Code of Criminal Procedure;
it was 6 months if the accused had not been charged, 10 months if
the investigation had taken place and no committal for trial or
dismissal of the case decision had been handed down, 18 months if
no sentence had been pronounced by the court of first instance,
and 2 years if the sentence had not been handed down. Those periods
were respectively 8 months, 1 year, 2 years and 30 months in the
case of offences punishable by imprisonment of over 8 years or certain
specific offences such as drug trafficking, offences under air or
maritime navigation regulations, and offences against national integrity
14. He noted that pre-trial detention was of
a limited and quite exceptional nature, and subject to very strict
conditions and procedures laid down by law. The decision was taken
by a judge, who was required to review it every three months. If
a person had reason to believe that his detention was illegal for
some reason or another (outside authorized places of detention or
beyond authorized limits) he could, exceptionally, make an application
for habeas corpus.
15. In accordance with the Constitution and
the provisions of the Code of Criminal Procedure, a judicial decision
on imprisonment had to be communicated to a member of the prisoner's
family. Moreover, as soon as a person was detained he had to be
informed of his rights. A document on the subject was given to him
and explained. It informed the prisoner of his right to communicate
with a lawyer, to inform his family, to refuse to reply, to be brought
before a judge within 48 hours, to ask for a doctor at any time
and, if necessary, to avail himself of the services of an interpreter.
The document was available in Portuguese and four other languages.
16. In reply to a question from the Rapporteur
concerning access to places of detention, he explained that the
public prosecutor could, without prior notification, visit any place
of detention within his territorial jurisdiction. Every member of
the public prosecutor's department was allowed free access to penitentiary
17. Replying to Mr. Dipanda Mouelle he said
that in accordance with article 32, paragraph 6, of the Constitution,
no evidence obtained under torture was allowed before a court. The
same was true of any wrongful interference in private life (telephone
tapping, photographs taken in an intimate context, etc.).
18. He explained, in reply to Mr. Sorensen's
general question, that the Physicians' Code of Ethics was a set
of rules of conduct governing the exercise of the medical profession.
If a medical practice was impugned, only the Medical Association,
a body quite independent of the State, was competent to take disciplinary
measures. In the case of an actual offence, the courts had jurisdiction.
19. Mrs. MOTA MATOS (Portugal) reviewed the
legal and constitutional regime governing extradition, which was
covered by article 33 of the Constitution. That article set out
the principles of non-extradition for Portuguese nationals and non-extradition
on political grounds or for crimes punishable by death, as well
as the principle that a decision to extradite could be taken only
by the judicial authorities. The Constitution proclaimed other principles,
including that of non-extradition in cases of crimes punishable
by imprisonment for life. Portugal's reservations to the European
Convention on Extradition and the European Convention for the Prevention
of Terrorism were based on those principles: Portugal did not authorize
extradition if the offences involved were punishable by death or
by imprisonment for life in the applicant State. The desire to put
those constitutional principles into practice had resulted in the
adoption of Decree-Law No. 43 of 1991, article 6 of which stated
that any request for cooperation in connection with a request for
extradition would be refused if the person concerned was likely
to be punished by death or imprisonment for life. In the event of
a refusal to extradite, the person concerned could nevertheless
be brought before a judge. That provision also applied to the non-extradition
of Portuguese nationals: a sentence could be pronounced even if
extradition was refused.
20. She recalled that Portugal had been the
first country to abolish the death penalty in 1852, and that no
death sentence had been carried out since 1846. The philosophy behind
the Portuguese prison system was firmly rooted in practice and ensured
the social rehabilitation of the person concerned. In that connection,
she quoted article 30, paragraph 5, of the Constitution which stated
that persons convicted to a sentence or a security measure involving
deprivation of freedom could enjoy their fundamental rights, save
the limitations inherent in the conviction and the requirements
of its enforcement.
21. Extradition procedure comprised two phases.
The first, administrative phase, fell within the competence of the
Government, and entailed an assessment of a political nature to
determine whether extradition was appropriate and whether the request
was in order. If the request was rejected the procedure was terminated.
If the decision was positive the request was sent to the competent
authority, namely, the courts. According to the law it was the courts
of second instance that were empowered to decide questions of extradition.
The judicial stage was then initiated and the court's decision was
final and enforceable, and fully binding on the executive.
22. Mr. HENRIQUES GASPAR (Portugal), turning
to the more specific questions put by the members of the Committee,
replied to Mr. El Ibrashi, who had asked about compensation, redress
and State liability. Compensation implied a liability, determined
by a court, but also a guilty party able to pay. Redress, which
was the responsibility of the State, implied that no one was liable
or that the person liable was not solvent. The State was liable
whenever one of its servants was guilty of a wrongful act that caused
damage to someone, or whenever the State abused its authority.
23. In reply to a question on the effects of
orders given by a superior, he referred to article 271 of the Constitution,
by virtue of which an official was not held liable if he acted in
accordance with an order received from a superior, on condition
that he had previously requested confirmation of that order in writing.
The duty to obey ceased, however, whenever the carrying out of orders
entailed committing a criminal offence.
24. In reply to Mr. Burns, who had asked how
amnesty was granted, he said that amnesty was a general measure
that could be proclaimed solely by the Assembly of the Republic.
For instance, in April 1991, an amnesty law had been enacted on
the occasion of the Pope's visit to Portugal. Since 1974 there had
been three amnesty laws, all concerning relatively minor criminal
offences. Amnesty was always of a general nature, covering all the
inmates of a prison and never a specific individual.
25. In reply to questions put by Mr. El Ibrashi
and Mr. Khitrin on the jurisdiction and status of military tribunals,
he said that such tribunals were provided for by the Constitution,
were composed of military personnel and civilian judges, and dealt
with offences that, under the law, were essentially military offences,
such as treason, spying and insubordination. Only military personnel
were brought before such tribunals.
26. He apologized for being unable to reply
at that stage to a question concerning the report of the European
Committee for the Prevention of Torture.
27. Mrs. MOTA MATOS (Portugal), replying to
questions from Mr. Lorenzo and Mr. Dipanda Mouelle on special safety
measures and the use of means of restraint in prisons, said that
the special safety measures were provided for by Penitentiary Law
No. 265 of 1 August 1979 and could be applied only in exceptional
cases, as when there was a danger of escape or serious disturbances
in the prison that could not otherwise be avoided. There was no
maximum security establishment in Portugal, but three security blocks
had been created in central prisons to accommodate prisoners who
could not be subjected to the general regime of prison establishments.
Special conditions prevailed in those blocks, but the right to correspondence,
visits, exercise and medical care was maintained. Special safety
measures were applied under medical supervision. For example, the
doctor could ask that a prisoner should be dispensed from the regime
and inmates had various possibilities of appealing to national authorities
and the European Commission of Human Rights. The use of means of
restraint (handcuffs, etc.) was also specified by law and always
had to be the subject of a written report setting out the conditions
that had necessitated their use.
28. Mr. HENRIQUES GASPAR (Portugal) reviewed
a number of cases connected with allegations of torture and ill-treatment
which had been the subject of reports from human rights organizations.
Following a judicial inquiry, some of the complaints had resulted
in the suspects being charged, some had been dismissed for want
of proof and yet others were in abeyance pending an investigation.
Copies of some of the sentences handed down had been sent to Amnesty
International. Moreover, a complaint by five German prisoners to
the European Commission of Human Rights in Strasbourg had been found
inadmissible by that body. In conclusion, he said that the Portuguese
authorities deplored the cases of ill-treatment that had resulted
in police and prison officials being charged, but pointed out that
those were isolated cases, very few in number, and that the guilty
parties had invariably been obliged to resign.
29. The Portuguese delegation withdrew.
The public part of the meeting was suspended at 5.10 p.m. in order
to allow consideration of the draft conclusions on the initial report
of Portugal in a closed part of the meeting; the public part of
the meeting resumed at 5.50 p.m.
30. The members of the Portuguese delegation
resumed their places at the Committee table.
31. Mr. BEN-AMMAR (Country Rapporteur) read
out the Committee's conclusions as follows:
"1. The Committee against Torture, at its
166th and 167th meetings on Tuesday, 16 November 1993, considered
the initial report of Portugal submitted under article 9 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. It listened with interest to the oral presentation
and to the explanations and clarifications of the Portuguese delegation.
After deliberation, the Committee adopted the following conclusions:
"2. The Committee against Torture notes
with satisfaction that the report of Portugal is in conformity with
its general guidelines on the presentation of the initial reports
to be submitted by States parties under article 9, paragraph 1,
of the Convention. It greatly appreciated the spirit of trust and
fruitful cooperation that characterized the dialogue that took place
with the delegation. However, the Committee noted with regret that
the report had been submitted more than three years late, contrary
to the provisions of article 19, paragraph 1, which states that
States parties should submit initial reports within one year after
the entry into force of the Convention for the State party concerned.
"3. The Committee expresses its appreciation
for the efforts made by the State party in the constitutional and
in legislative fields to ensure that its legal system is in conformity
with the Convention. Those efforts seem to be the expression of
a genuine desire to create the conditions necessary to protect the
physical and moral integrity of individuals and to prevent the practice
of torture and cruel, inhuman or degrading treatment.
"4. In particular the Committee appreciates
the fact that the Constitution of Portugal states that duly ratified
international conventions are directly applicable and directly binding
on all public and private bodies and affirms the joint liability
of the State, its public bodies and officials in civil matters,
and the invalidity of evidence obtained under torture. The Committee
also appreciates the fact that the Constitution clearly proclaims
that the right to physical integrity cannot be called in question
when the country is under a state of siege or a state of emergency.
It considers as positive the objectives of the institutions set
up to protect and promote human rights, including the Provedor de
Justiça, and the broad teaching, training and information
programme being carried out to that end.
"5. However, the Committee against Torture
notes with regret that, despite those efforts, ill-treatment and
occasionally acts qualified as torture continue in police stations
and other places of detention throughout the country, as well as
the fact that investigations into such allegations are often embarked
upon rather late, that they last too long and that offenders are
not always brought to court. That situation, together with the lightness
of the sentences imposed, creates an impression that the culprits
act with relative impunity - an impression that can have a very
adverse effect on the implementation of the provisions of the Convention.
The Committee also considers that the duration of pre-trial detention,
both in law and practice, is a negative factor. Moreover, it regrets
the treatment of the territory of Macao, under Portuguese administration
until December 1999, owing to the non-application of the Convention
against Torture to that territory.
"6. The Committee against Torture recommends:
That the next periodic report of the State party
should be submitted within the time-limit laid down in the Convention;
That the State party should continue its efforts,
particularly with respect to the reform of the Penal Code and the
Code of Criminal Procedure, to ensure that its legislation is fully
in conformity with the provisions of the Convention;
That it should establish machinery for the systematic
review of interrogation rules, instructions, methods and practices,
particularly at police stations, as stipulated in article 11 of
the Convention, and ensure that such machinery is sufficiently effective,
as required by article 2, to give full effect to the commitments
assumed and to implement the provisions of the Convention;
That it should extend the application of the
Convention to Macao, in accordance with article 2, paragraph 1,
of the Convention.
"7. The Committee against Torture takes
note of the undertakings given by the Portuguese delegation and
is convinced that Portugal will spare no effort to fulfil them."
32. Mr. HENRIQUES GASPAR (Portugal), speaking
for his delegation, thanked the Committee for its comments and recommendations,
which he had noted and would transmit to his Government immediately.
33. The CHAIRMAN said that the conclusions of
the Committee would shortly be transmitted in writing to the Portuguese
delegation, which he thanked for having taken part in a fruitful
dialogue, marked by a spirit of trust.
The meeting rose at 6 p.m.