por Portugal aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
CONSIDERATION OF REPORTS SUBMITTED
BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (continued)
Second periodic report of Portugal
* The summary record of the second part (closed)
of the meeting appears as document CAT/C/SR.305/Add.1
The meeting was called to order at 10.10 a.m.
CONSIDERATION OF REPORTS SUBMITTED
BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item
Second periodic report of Portugal
1. At the invitation of the Chairman, Mr. Esteves
Remédio, Ms. de Matos, Ms. Alves Martins and Mr. Gomes Dias
(Portugal) took places at the Committee table.
2. Mr. ESTEVES REMÉDIO (Portugal) said
that his delegation wished to inform the Committee of some recent
developments that should enable further progress to be made in implementing
the principles of the Convention, particularly in the light of the
recommendations made by the Committee following the submission of
Portugal's initial periodic report (CAT/C/9/Add.15) in 1993.
3. Work on the fourth revision of the Constitution
of the Portuguese Republic had recently been completed, with the
publication of Constitutional Act No. 1/97, of 20 September. One
important amendment concerned the ending of the jurisdiction of
military courts over purely military crimes. Henceforth, except
in time of war, such crimes would come under the jurisdiction of
special courts of the judicial branch (arts. 211 (3) and 213).
4. A new article 208 proclaimed the importance
of the role of lawyers as an essential element of the administration
of justice and left the definition of their immunities to ordinary
legislation. A new paragraph 7 of article 32 explicitly set forth
the right of the victim to participate in the criminal proceedings,
a right already recognized in Portuguese legal tradition.
5. Article 33 expressly proclaimed the principle
that extradition was impossible when the offence was liable to a
penalty causing irreversible harm to physical integrity. Extradition
in connection with an offence subject to life imprisonment had been
rendered more flexible, while retaining the requirement for guarantees
that the sentence would not be executed; the purpose was to reconcile
Portugal's international undertakings and the requirements of international
cooperation with the principles of its own legal system, under which
that penalty had been abolished in 1886.
6. The Code of Criminal Procedure and the Penal
Code had also undergone substantial reforms. The draft revision
of the former, which had been completed and submitted to the competent
bodies, had the general objective of accelerating criminal procedure
and rendering it more dignified. Thus, provision was made, subject
to the rights of the defendant set forth in the new article 32,
paragraph 6, of the Constitution, for the accused to be tried in
absentia when he had been duly notified of the proceedings initiated
7. With regard to the victim's rights, Act No.
20/96 of 6 July permitted participation in the criminal proceedings
by immigrant community anti-racist or human rights associations,
when the offence involved racist or xenophobic discriminatory conduct.
Other legislative initiatives concerned the appointment of legally
qualified assistants to prepare judicial documents, the establishment
of a central department to coordinate the investigation of serious
crime, especially organized crime, and measures to improve the training
of the judiciary.
8. Efforts had continued to make judges, lawyers,
police and prison officers and social workers more aware of the
main international instruments dealing with human rights and criminal
matters, particularly those of the United Nations and the Council
of Europe. For example, in 1995, the training programmes for prison
warders had been enhanced. Members of the general public were also
being made more aware of the existence of standards and principles
whose application might concern them. For example, in 1995, the
Compendium of United Nations Standards and Norms in Crime Prevention
and Criminal Justice had been published in Portuguese, as had, more
recently, Penal Reform International's handbook Making Standards
Work. Both texts were currently being used in training activities
in Portugal and other Portuguese-speaking countries. It was to be
hoped that those training and dissemination measures would assist
competent domestic bodies, such as the Inspectorate-General of Internal
Administration, to monitor the application of the standards and
principles contained in the Convention.
9. Efforts had continued to protect and promote
human rights in the prisons system. Concern regarding overcrowding
in prisons had led to the adoption of a Programme of Action for
the Prisons System, which included both legislation and administrative
measures in areas such as the promotion of interdepartmental cooperation,
the construction and renovation of prisons, recruitment of personnel
and expansion of budgets. The measures adopted to improve prisoners'
living conditions and quality of life, and the strengthening of
protection mechanisms such as the right to correspond confidentially
with certain bodies, should lead to greater respect for the fundamental
rights of detainees.
10. Mr. CAMARA (Country Rapporteur) said that
the distinguished composition of the Portuguese delegation augured
well for a fruitful and constructive dialogue with the Committee.
The second periodic report, which had been prepared in accordance
with the Committee's guidelines, albeit submitted somewhat late,
bore witness to Portugal's determination to meet its international
11. Given the wealth of legislation recently
enacted, his questions would take the form mainly of requests for
clarification. With respect to article 3 of the Convention, paragraph
109 of the report, quoting article 33 of the Constitution, stated
that extradition could be decided only by a judicial authority.
According to paragraph 126, however, an application for extradition
could be rejected following an examination by the Government. It
was difficult to see how those two apparently contradictory statements
could be reconciled. Paragraph 127, too, suggested that the Government
could influence the workings of the courts in that regard.
12. With respect to article 4, he noted that
the new Penal Code included a definition of torture. However, in
view of the many allegations of ill-treatment, torture and even
extrajudicial executions, it seemed that the new Code's aims had
not been achieved in practice. Thus, in an article in the Spanish
daily newspaper El País dated 14 May 1997, António
Rodrigues Maximiano, the Inspector-General of Internal Administration,
stated that the current legislation did not afford sufficient protection
to victims of police ill-treatment, and that the light sentences
handed down, the slowness of the procedure and the lack of transparency
concerning the results of investigations fostered a climate of impunity.
The Committee would be very interested in hearing the Portuguese
delegation's comments on that statement.
13. He noted from paragraph 119, subparagraph
(e), of the report that a request for extradition was refused if
the act to which it related was punishable by death or life imprisonment.
While a refusal in the former case was understandable, a refusal
on the grounds that the accused risked life imprisonment appeared
to be incompatible with the provisions of article 8 of the Convention,
where the person whose extradition was requested stood accused of
14. In view of the frequent allegations of ill-treatment
or torture by the forces of law and order, it appeared that current
legislation was not achieving its desired effect. Article 11 of
the Convention obliged the States parties to keep under systematic
review arrangements for the custody and treatment of persons subjected
to any form of arrest, detention or imprisonment. He would, consequently,
like to know what the outcome had been of the inquiries conducted
by the Provedor and referred to in paragraph 235 of the report.
15. with respect to article 12, paragraphs 269
and 270 of the report stated that any victim of ill-treatment, abuse
of authority or excessive force was entitled to lodge a complaint
with either the administrative or the judicial authorities. The
omission of torture from that list was presumably an oversight.
More serious, however, was the report's silence regarding the obligation
imposed on a State party's authorities to proceed to a prompt and
impartial investigation, - proprio motu, in the Committee's interpretation
-wherever there was reasonable ground to believe that an act of
torture had been committed in any territory under its jurisdiction.
16. That obligation was distinct from the obligation
under article 13, compliance with which was ensured by Portuguese
legislation. In plain language, he would like to know whether Portugal
made the investigation of cases of torture conditional on a prior
complaint by the victim. If so, that would appear to be a breach
of article 12 of the Convention. If not, he would be interested
to hear what legislative provisions enabled the competent authorities
to investigate a case, whether or not the victim had lodged a complaint.
17. Mrs. ILIOPOULOS-STRANGAS (Alternate Country
Rapporteur), having thanked the delegation of Portugal for the second
periodic report, which complied with the requirements of article
19 of the Convention, and for its oral presentation on recent developments,
said she noted that paragraph 13 of the report listed a number of
international instruments which Portugal had "adopted and ratified",
whereas paragraph 4 referred only to the "adoption" of
the Convention and wondered whether the implication was that the
latter's domestic status was in some way inferior to that of the
18. Paragraphs 25, 149-167 and 171 referred
to a 48-hour time limit within which an arrested person must be
brought before an examining magistrate. Could that time limit be
extended and, if so, for how long, on what grounds, and by whom?
19. Paragraph 69 referred to the decision to
put an end to the use of exceptional methods of prolonging survival
artificially, for which provision was made in article 50 of the
Physicians' Code of Ethics. She wished to know who took that decision,
and under what procedure. She also noted that, according to paragraph
84, all nationals, stateless persons or aliens residing in Portugal
were regarded as potential post mortem organ donors unless they
had informed the Ministry of Health that they did not wish to be
donors. How were non-nationals not wishing to be donors to know
that they had a legal obligation to declare the fact? The onus should
surely be on those wishing to be donors to declare the fact, as
was the usual practice elsewhere.
20. With respect to article 3, the Committee
had learned with interest of the recent amendment of article 33
of the Constitution. She doubted whether, prior to that amendment,
it had complied with the requirements of article 3 of the Convention
and noted that, even as amended, article 33 made no reference to
moral or psychological harm - a regrettable omission.
21. Paragraph 135 stated that, in order to be
protected from deportation, the person in question must invoke the
fear of persecution and provide evidence thereof within the prescribed
time limit. That provision did not comply fully with the requirements
of article 3 of the Convention.
22. She requested fuller details regarding the
"exceptions" referred to in paragraph 173, and also regarding
the exceptions covered by the Code of Military Justice (para. 186),
on the assumption that those exceptions had survived the recent
changes affecting the jurisdiction of military courts.
23. With respect to article 10, she asked whether
any steps were taken to provide specific information or training
concerning the Convention, in particular to police and prison officers.
24. Noting from paragraph 228 of the report
that the Provedor de Justicia (ombudsman) was appointed by the Assembly
of the Republic, she said that she would like more information concerning
the majority by which he was appointed, the term of his mandate
and the reasons, if any, for its suspension.
25. With regard to paragraph 258 of the report,
concerning periods spent in special security cells, it was unclear
whether it was the Directorate-General of Prison Service which had
sole competence, as in the case of periods exceeding 15 consecutive
days, to decide whether to isolate a detainee for a lesser period.
She would also like to know whether there was any judicial or administrative
recourse against such decisions.
26. In connection with her assigned task of
examining allegations by non-governmental organizations (NGOs),
she wished to hear the Portuguese response to the Amnesty International
report of ill-treatment of street children in Madeira by the police.
Moreover, in view of the content of paragraph 283 concerning disciplinary
measures against prison warders, it was surprising that Amnesty
International had still received no response concerning a particular
case of ill-treatment by such officials.
27. She was much alarmed by the numerous allegations
of recent cases involving deaths, as well as others involving the
ill-treatment of judges and lawyers and would welcome the delegation's
comments on the subject. It would seem that, notwithstanding the
exemplary measures enshrined in the Portuguese Constitution for
the protection and promotion of human rights, stricter legislation
might be required to ensure the effective punishment of public officials
who abused their power.
28. Lastly, she highlighted the anomaly of the
Supreme Court's rejection of the additional punishment of dismissal
from service for police officers found guilty of ill-treatment and
commented that, at the very least, such officers should be suspended
29. Mr. SORENSON, having commended the comprehensiveness
of the report, said he wished to know the status enjoyed by the
Physicians' Code of Ethics referred to in paragraph 66 et seq.,
which he especially welcomed. He would also like to know whether
a doctor who was ordered to carry out an act he believed to be in
breach of medical ethics could object and refer the matter to the
Medical Association. Concerning paragraph 68, he wondered whether
there were any set rules if a doctor was placed in the difficult
position where a victim refused his consent to notification of his
ill-treatment to the police or the competent social authorities.
30. While commending the measures concerning
potential post mortem organ donors referred to in paragraph 84,
he was concerned that persons such as tourists or temporary visitors
to Portugal might be included in those measures, since that would
31. In view of the paramount role of the Ethics
Commission mentioned in paragraph 98, he wished to know whether
Portugal had a single central commission, as opposed to many, and
also requested details of its membership.
32. With respect to article 3, he would like
some clarification of the seemingly unfair situation whereby, a
person arriving in Portugal with false travel documents who failed
to declare himself immediately to be an asylum-seeker could be sent
back to his country of origin.
33. He endorsed the questions asked by the previous
speaker with respect to article 10 and would also like to know whether
education regarding the prohibition against torture was included
on the curriculum of medical students.
34. Lastly, he said that the systematic review
provided for under article 11 of the Convention should, in the light
of article 16, encompass not only torture, but also inhuman or degrading
treatment or punishment.
35. Mr. PIKIS said that, according to paragraph
39 of the core document (HRI/CORE/1/Add.20), the Attorney-General
was appointed and relieved of his post by the President of the Republic.
He therefore wished to know whether his was a political or judicial
post and requested information on his terms of service. He also
wondered whether it was the duty of the Attorney-General to defend
democratic legality, and if so, what form that duty took and how
it was applied.
36. With regard to the dissemination of legal
information discussed in paragraph 76 of the core document, he inquired
whether any steps had been taken to bring the provisions of the
Convention to the notice of the general public and, more particularly,
to that of detainees and prisoners, emphasizing the benefit of furnishing
the latter with details of their rights in respect of arrest and
37. He also requested information concerning
the role and powers of the Constitutional Court, particularly in
terms of the rulings on the issues of unconstitutionality referred
to in paragraphs 61 and 80 of the core document. As for the role
of the ombudsman, referred to in paragraph 227 of the report, he
would like to know whether there were any restrictions on complaints
38. He wondered if there were any impediments
to, or questioning of the desirability of, incorporating the European
Convention on Human Rights into Portuguese law, as it was his impression
that such incorporation had not yet taken place.
39. With respect to the general application
of Portuguese law with a view to stemming abuse and torture, he
was concerned by the wide-ranging complaints of ordinary and serious
abuse reported annually by Amnesty International since 1994, according
to which very few of those accused of torture were ever convicted.
He would like to know, therefore, how the Portuguese authorities
intended to address that problem of apparent complacency with regard
to accusations of torture and whether there had been any improvement
in that situation since it had last been reviewed by the Committee
in 1993. He also questioned the utility of the security police.
Transgression of authority was seemingly common in that force and
complaints against its members were rife. He suggested the alternative
of assigning special duties to the ordinary police.
40. Mr. YAKOVLEV, while agreeing that the report
provided clear evidence of the efforts of the Portuguese Government
to implement the Convention fully, said that he continued to have
concerns. Under article 143 of the Penal Code, for example, most
cases of ill-treatment by law-enforcement officers would be regarded
as crimes of common assault. Under paragraph 2 of the same article,
however, the victim was required to make an official complaint prior
to the instigation of any criminal investigation, failing which
he had no other remedy. The effect was thus to transfer the burden
of proof to the victim, a measure which was not conducive to the
prevention of torture.
41. Paragraph 171 of the report stated that
there was a maximum period of 48 hours to validate or continue pre-trial
detention and that the judge must be informed of the reasons for
the remand in custody, communicate them to the detainee, question
him and allow him to defend himself. It would seem that the arrested
person had to assume his own defence without the assistance of counsel,
an inference borne out by the statement in paragraph 180 that a
person must be charged - thereby acquiring the status of defendant
- before acquiring the right to select his defence counsel or to
request the court to appoint one.
42. As pre-trial detention ended only after
six months if no charge had been filed against the accused (paragraph
172), it followed that a person might be denied the status of defendant
for six months. That kind of situation was conducive to the worst
kinds of abuse, including ill-treatment and torture.
43. Mr. ZUPANCIC, having commended the report
which was both exhaustive and legally very interesting, said that
torture was dealt with in articles 243, 244 and 412 of the Portuguese
Penal Code. There was a slight discrepancy between the definition
of torture in the Convention and that contained in article 243.
The Convention defined torture strictly as a delictum proprium,
which could be committed only by a public official. Article 243
of the Penal Code, on the other hand, referred to "any person"
and not just to public officials, as did article 244, although it
dealt with an aggravated form of the offence provided for under
44. Article 412, on the other hand, dealt with
a delictum proprium, but an official who resorted to violence, threats
or other illegal means of constraint was liable only to between
six months' and four years' imprisonment, whereas a person found
guilty of breaching article 243 was liable to between one and five
years' imprisonment. An individual police officer would thus be
in a better position if he was prosecuted under article 412 rather
than under article 243.
45. In the light of article 2, paragraph 2,
of the Convention, Portugal should include a specific provision
in its Penal Code excluding the possibility of using the doctrine
of necessity or of the "lesser evil" as a justification
for torture. Even if 50 lives could be saved by locating a "ticking
bomb", a law-enforcement officer was not justified in using
torture to obtain the requisite information.
46. He asked whether attempts to commit torture
and complicity in acts of torture were punishable under the Penal
47. The maximum period of pre-trial detention
seemed very long, although it was similar to the periods provided
for in many other European countries. The federal rules of criminal
procedure in the United States of America required a person to be
released 70 days after indictment if no trial had taken place. The
comparable period in Portugal was 10 months.
48. Offences of common assault covered by article
143 of the Portuguese Penal Code would fall under the definition
in article 16 of the Convention of acts of cruel, inhuman or degrading
treatment or punishment which did not amount to torture. However,
articles 10, 11, 12 and 13 would also be applicable to such acts.
According to article 12, the State party must conduct an ex officio
investigation in any such situation.
49. Mr. REGMI said that the report was informative,
comprehensive and exemplary.
50. With reference to paragraphs 254 to 261,
he would like to know the difference between special security cells
and solitary confinement cells and between detention in special
security cells and incommunicado detention. Could a detainee appeal
against an order for uninterrupted isolated detention and, if so,
what authority was competent to hear the appeal?
51. With reference to paragraphs 262 to 265,
he wished to know who determined whether the use of force was justified.
The use of any kind of force was explicitly and absolutely prohibited
by the Convention.
52. After examining Portugal's initial report
(CAT/C/9/Add.15), the Committee had expressed concern about cases
of ill-treatment and torture in police stations and other places
of detention. It was therefore disturbing to read, in the 1996 report
on Portugal of the European Committee for the Prevention of Torture,
that a significant proportion of the persons interviewed alleged
that they had been ill-treated while in police custody.
53. Mr. BURNS said he noted from the delegation's
oral introduction that special courts of the judicial branch had
taken over jurisdiction from military tribunals in cases involving
offences by military personnel except in time of war. What exactly
was a special court of the judicial branch?
54. While Portugal had excellent institutions
for the protection of human rights, it seemed from the information
available, particularly the Amnesty International reports, that
the practical implementation of human rights principles still left
a great deal to be desired, at least with regard to the behaviour
of law-enforcement officers and field personnel. If the information
was accurate, impunity was still a problem, as was the amount of
time it took to investigate allegations of violence by law-enforcement
officers, to bring such cases to trial and to complete the legal
proceedings. Reports of cases of detainees being shot indicated
that police officers should be given refresher courses in the use
55. He was also disturbed by the practice of
issuing amnesties to law-enforcement personnel who had been convicted
of such offences in Portugal. He would like to know how frequently
the executive used its amnesty power and what rationale it offered
for such action. The fact that the victims of casual violence by
law-enforcement officers came from all strata of society and all
walks of life seemed to reflect a disturbing subculture of random
violence. He was also struck by the very trivial circumstances that
could engender an extreme response.
56. Mrs. ILIOPOULOS-STRANGAS said that her doubts
concerning the removal of organs from dead persons did not relate
solely to foreigners. She feared that the requirement for non-donors
to make a declaration to the National Register of Non-Donors might
lead to abuses on the part of traffickers in human organs and might
amount in some cases to inhuman or degrading treatment. A significant
number of people were probably unaware of the existence of the law,
and some individuals might object for religious or ethical reasons
to the removal of their organs after death.
57. The CHAIRMAN invited the delegation to respond
to the Committee's questions at the beginning of the following meeting.
58. The delegation of Portugal withdrew.
The public part of the meeting rose at 11.50