Apresentados por Portugal aos Órgãos de Controlo da
Aplicação dos Tratados das Nações Unidas
em Matéria de Direitos Humanos
INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS
HUMAN RIGHTS COMMITTEE
CONSIDERATION OF REPORTS SUBMITTED
BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
Second periodic reports of States
parties due in 1986 Addendum
*/ For the initial report submitted by the Government
of Portugal, see CCPR/C/6/Add.6; for its consideration by the Committee,
see summary records CCPR/C/SR.293, SR.294 and SR.298. See also Official
Records of the, General Assembly, thirty-sixth session, Supplement
No. 40 (A/36/40), paragraphs 291 to 336.
1. The present report relates to the application,
through the domestic legal system, of the International Covenant
on Civil and Political Rights, which was adopted by the United Nations
General Assembly on 16 December 1966 and entered into force on 23
2. The Covenant was approved by the Assembly
of the Portuguese Republic by Act No. 29/78 of 12 June, and entered
into force for Portugal on 15 September 1978.
3. This is the second Portuguese report submitted
under article 40 of the Covenant. In Dreparinq the report, Portugal
took into account the general observations made by the Human Rights
Committee in accordance with article 40, paragraph 4, endeavouring
to clarify the points made by the members of the Committee when
the first report was presented.
4. The report is divided into two parts: the
first part relates to general principles, while the second includes
information on the application of articles 1 to 27 of the Covenant.
PART ONE: GENERAL PRINCIPLES
5. The present report relates to measures adopted
by Portugal to qive effect to the riqhts recoqnized in the Covenant,
which indicate proqress made in the enjoyment of these riqhts since
the presentation of the first report in July 1981. Since that time,
several important changes have occurred, especially in legislation.
This first part provides an outline of the main features of these
changes. In the second part details will be provided of.the measures
taken in relation to each of the articles analysed.
6. First and foremost it should be mentioned
that Act No. 13/82 of 15 June qave approval for accession to the
Optional Protocol to the International Covenant on Civil and Political
Riqhts. Portugal thereby recoqnized the competence of the Human
Riqhts Committee to examine communications from individuals claiminq
to have suffered a violation of one of the rights set out in the
7. In 1982 the Assembly of the Republic adopted
and Promulqated Act No. 1/82 of 30 September, approvinq the first
amendment of the Constitution.
8. As a result of the Act, the Council of the
Revolution was abolished, leadinq to several important changes,
especially in the status of the President of the Republic (under
former article 145, the Council of the Revolution was the President's
Council), and in the system for ensuring that the provisions of
the Constitution are respected.
9. The Amendment Act added a Council of State
(see Constitution, arts. 144 to 149), to Portuqalls political structure
as an advisory body to the President of the Republic.
10. Under article 148, it falls to the Council
in particular to take decisions on the dissolution of the Assembly
of the Republic and the orqans of the autonomous regions, the resiqnation
of the Government, the declaration of war and the signature of Deace
treaties and, in qeneral, to advise the President of the Republic
at his request in the performance of his tasks.
11. A Constitutional Court was set up (art.
212), with the essential task of reviewinq the constitutionality
and lawfulness of decisions under the terms of articles 277 et seq.
of the Constitution (Act No. 28/82 of 15 November). This constitutional
review, which will be analysed in the context of article 1, may
be preventive (art. 278), abstract (art. 281) or concrete (art.
12. Important changes were made in respect of
rights, quarantees and fundamental freedoms. The essential features
of these innovations will be hiqhlighted below.
I. FUNDAMENTAL PRINCIPLES
13. The fundamental principles set forth at
the beginning of the Constitution have undergone certain changes
which could be anticipated as a result of the post-revolutionary
nature of the 1976 Constitution.
14. The Amendment Act substantially modified
this situation, eliminating various provisions which arose from
it. First, the Council of the Revolution, an organ which had the
status of representative of the "armed forces movement', and
participated in the exercise of supreme authority, was abolished.
Second, the references to the "revolutionary process",
set forth in the Constitution in such an expressive manner in former
article 10 and former article 55, paragraph 1, were deleted.
15. The Amendment Act also inserted in this
chapter various provisions revealing the dominant concerns of the
legislature. These may be set out under four headings:
(a) protection of human rights;
(b) promotion of economic, social and cultural rights;
(c) enshrinement of the principle of universal suffrage, on a basis
of equality, in direct, secret and periodic elections;
(d) European integration.
16. The Amendment Act recognized the protection
of human rights as a principle by which Portugal should be guided
in its international relations. It was added to the list of general
principles of ordinary international law set out in article 7, paragraph
1, such as the principle of national independence and the right
of peoples to self-determination and independence.
"1. In its international relations Portugal
shall be governed by the principles of national independence, respect
for human rights, the right of peoples to self-determination ...,
equality among States, the peaceful settlement of international
disputes, non-interference in the internal affairs of other States
and co-operation with all other peopies for the emancipation and
progress of mankind."
17. The Amendment Act acknowledged the promotion
of economic, social and cultural rights as one of the State's fundamental
"(b) to safeguard fundamental rights and freedoms and respect
for the principles of the democratic State subject to the rule of
"(c) to defend political democracy and secure the organized
participation of the people in solving national problems;
18. A new task was added to this list: the protection
and enhancement of the cultural heritage of the Portuguese people,
the protection of nature and the environment and the conservation
of natural resources, which had been referred to in article 78.
19. The principle of universal suffrage, on
a basis of equality, through direct, secret and periodic elections
was added to the fundamental principles set out in the Constitution.
Former article 10, institut ionalizing the revolutionary process,
was accordingly replaced by a text enshrining this principle of
"1. The people shall exercise political
power through universal suffrage, on a basis of equality, in direct,
secret and periodic elections and in other forms laid down in the
"2. The political parties shall contribute
to the organization and expression of the will of the people, and
shall respect the principles of national independence and political
20. The Amendment Act prepared the constitutional
ground for the direct application of Community legal norms in the
Portuguese legal system. It was for that reason that the legislature
added a new provision to article 8:
"3. Rules approved by the competent organs
of international organizations of which Portugal is a member shall
apply directly in internal law, provided that the treaties establishing
such bodies expressly so stipulate."
II. FUNDAMENTAL RIGHTS AND DUTIES: GENERAL PRINCIPLES
21. In the first section, relatinq to general
principles, the Amendment Act strengthened the constraints placed
on the restriction or suspension of fundamental rights, and introduced
a new principle concerning the right to legal information and protection.
A. Strengthening of constraints on the restriction
of fundamental rights
22. Article 18, paragraph 2, provided that "rights,
freedoms and safeguards may be restricted by law only in those cases
expressly provided for in the Constitution". The Amendment
Act strengthened this provision by adding that such restrictions
should "be limited to what is necessary to safequard other
riqhts or interests protected by the Constitutionn. Moreover, it
was also considered important to lay down that laws restrictinq
such riqhts must not be retroactive.
"2. Rights, freedoms and safeguards may
be restricted by law only in those cases expressly provided for
in the Constitution. Restrictions shall be limited to what is necessary
to safequard other rights or interests Protected by the Constitution.
"3. Laws restrictinq rights, freedoms and
safequards shall be qeneral and abstract in character, may not have
retroactive effect and may not limit in extent or scope the essential
content of constitutional principles. "
B. Strengtheninq of constraints on the suspension
of fundamental riqhts
23. Article 19 contains provision for the suspension
of the exercise of riqhts, freedoms and safequards:
(Suspension of the exercise of riqhts)
"1. The orqans of supreme authority may not, jointly or separately,
suspend the exercise of riqhts, freedoms and safequards except in
the case of a state of siege or emerqency declared in the manner
laid down in the Constitution.
"2. A state of sieqe or emergency may be
declared in all or part of the national territory only in cases
of actuai or imminent agqression by foreign forces, serious threat
to or disturbance of the democratic constitutional order or public
"3. The declaration of a state of sieqe
or emergency shall be adequately substantiated and shall sDecify
the riqhts, freedoms and safequards whose exercise is to be suspended.
It shall be in force for no more than 15 days, althouqh it may be
renewed for one or several periods of the same duration.
"4. The declaration of a state of sieqe
may in no circumstances affect the riqht to life, personal integrity
and identity, civil capacity and citizenship, the r)rinciple of
non-retroactivity of criminal law, the riqht of accused oersons
to a defence and freedom of conscience and reliqion.
"5. The declaration of a state of emergency
shall at most entail the partial suspension of riqhts, freedoms
"6. The declaration of a state of siege
or emerqency shall empower the authorities to take the necessarv
steps for the prompt restoration of constitutional normality."
24. As may be seen, this article has been modif
ied by the Amendment Act. The first change concerns the placing
of limits on the duration of the state of siege or emergency (see
Constitution, art. 141). Once the 15-day period has passed, the
declaration must be renewed. The second change relates to the rights
which may not be affected by the declaration of a state of siege.
It is based on similar provisions in the International Covenant
on Civil and Political Rights (art. 4) and the European Convention
on Human Rights (art. 15, para. 2). The legislature deemed it necessary
to add the following rights to those initially listed as not being
subject to suspension: the right to personal identity, the right
to civil capacity and citizenship, the right to non-retroactivity
of criminal law, the right of accused persons to a defence and the
right to freedom of conscience and religion.
C. The right to legal information and protection
25. Mention should also be made of a new provision
inserted by the Amendment Act among the general principles concerning
fundamental rights and duties: the right to legal information and
(Access to the law and to the
"l. All citizens have the right to legal
information and protection in accordance with the law.
"2. Everyone shall be guaranteed access to the courts to defend
his or her rights. Justice may not be denied to a person for lack
of financial resources."
As manifestations of the principle of access
to the law, legal information and protection constitute fundamental
guarantees of the equality of citizens and, above all, of the concept
of a State subject to the rule of law. In this way they enjoy constitutional
III. THE AMENDMENT ACT AND CHAPTER I: PERSONAL RIGHTS,
FREEDOMS AND SAFEGUARDS
A. Enshrinement of new rights
26. In article 26, which is entitled "Other
personal rights", the Amendment Act inserted four new rights:
the right to civil capacity, to citizenship, to a good reputation
and an image:
" 1. Everyone shall have the right to personal identity, civil
capacity, citizenship, a good name and reputation, image and protection
of privacy and of private and family life.
" 2. The law shall establish effective
safequards against the misuse of any information concerning persons
and families, or the use of such information in a manner inconsistent
with human dignity."
27. Article 26, paragraph 3 grants special protection
to the right to citizenship and the right to civil capacity. These
rights may be restricted only in cases and in conditions laid down
by the law, and the restrictions May not be justified on political
" 3. Forfeiture of citizenship and restrictions
on civil capacity may be applied only in cases and in conditions
laid down by the law, and in no circumstances on political grounds."
An application of this general principle May
be found in article 30, paragraph 4, concerning limits on sentences.
B. Strengthening of the right to freedom and
28. Article 27 has also undergone several changes:
"l. Everyone shall have the right to freedom
" 2. No one shall be deprived of his freedom
in whole or in part, except as the -result of a court judgement
convictinq him of an offence punishable under the law by a prison
sentence, or as the result of the judicial application of a security
"3. An exception to this principle shall
be deprivation of freedom in the followinq cases for a period and
on conditions to be laid down by the 1 aw:
" (a) Remand in custody, where a person
is caught in flagrante delicto, or where there is strong evidence
that he has wilfully committed an offence punishable by a major
"(b) The arrest or detention of a person
who has unlawfully entered or stayed in the national territory,
or against whom extradition or deportation proceedings have been
"(c) Disciplinary arrest of military personnel,
with the right of appeal to the competent court;
"(d) Placing of a minor in an appropriate
institution, for measures of protection, assistance or education
as ordered by the competent court;
"(e) Detention by court order following
failure to comply with a court decision, or for the purpose of ensuring
appearance before the competent judicial authority.
" 4. Any person deprived of his or her
freedom shall be informed without delay of the reasons for his arrest
"5. Any deprivation of freedom in violation
of the provisions of the Constitution and the law shall place on
the State an obligation to compensate the aggrieved party under
the terms laid down in the law."
29. Firstly, note should be taken of the provision
that persons deprived of their freedom in circumstances which are
contrary to the provisions of the Constitution or the law must be
compensated by the State on terms laid down by the law. This right
could already be invoked by virtue of the provisions of the European
Convention on Human Rights (art. 5, para. 5) and the International
Covenant on Civil and Political Rights (art. 9, para. 5), which
are in force in Portugal. However, the legislature wished to confer
constitutional status on this right.
30. It was also deemed necessary to provide
for a further three exceptions to the principle that "no one
may be deprived of his freedom except as a result of a court judgment
convictinq him of an offence punishable under the law by a Prison
sentence, or as a result of the judicial application of a security
31. Accordingly, as an exception to this principle,
provision was made for the detention of military personnel for disciplinary
reasons, which was inadmissible under the previous constitutional
32. Nevertheless, the guarantee of legal recourse
through the competent court was maintained. The two other exceptions
relate to the application to minors of measures or protection, assistance
or education imposed by a competent court and carried out in appropriate
institutions, as well as arrest for failure to comply with a court
decision or to ensure appearance before the competent judicial authority.
However, this arrest must be ordered by court decision.
33. Lastly, a few other changes may be noted
in the wording of this article. In paragraph 2, for example, in
addition to cases of complete deprivation of freedom, cases of partial
deprivation of freedom are also provided for. This also applies
to paragraph 4, which provides that any person deprived of his freedom
must be informed of the reasons for his arrest, and where the expression
uwithout delay" has been replaced by the word "immediately".
C. Prohibition Of necessary conseauences of
certain types of sentence
34. In article 30, relating to limits on sentences
and security measures, mention should be made of the change to paragraph
4. "No sentence shall involve, as a necessary consequence,
the loss of civil, labour or political rightsn. By introducing this
change the legislature wished to deal with situations in which the
application of certain types of sentence necessarily entail the
loss of certain civil, labour or political rights. Situations of
this type, which are extremely diverse in nature, are no longer
admissible under the terms of this new constitutional provision.
35. The new Penal Code, which entered into force
on 1 January 1983, contains a similar provision in article 65, which
reads: "No sentence shall entail, as a necessary consequence,
the loss of civil, labour or political rights".
D. Strengtheninq of safeguards in criminal proceedings
36. On the subject of safeguards in criminal
proceedings, the Amendment Act introduced changes which relate to
the situation of accused persons. It provides that the accused should
be tried in the shortest possible time, and that he should be able
to choose his defence counsel.
(Safeguards in criminal proceedings)
"2. Any person charged with an offence
shall be presumed innocent until his conviction has acquired the
force of res judicata, and he shall be tried in the shortest space
of time compatible with safeguards for his defence.
"4. The entire investigation shall be within
the competence of a judge, who may, in circumstances laid down in
the law, delegate to other persons certain elements of the investigation
which are not directly connected with fundamental rights.
37. Although they were not spelled out in the
former text of the Constitution, these provisions were already applicable
under article 6 of the European Convention on Human Rights (paras.
1 and 3 )).
38. Lastly, an observation is called for concerning
the new version of article 32, paragraph 4. It enables the judge
to delegate to other persons his competence to pursue elements of
the investigation which are not directly connected with fundamental
rights. Although it may reflect a weakeninq of the position of the
accused, this previously inadmissible practice is designed to solve
the prpblems raised by the inadequate number of judges, which has
led to undesirable delays in investigation procedures.
E. Protection of personal data
39. The Amendment Act added an important provision
to article 35, on the use of data processing (art. 35, paras. 2
40. The legislature, bearing in mind developments
in this area in various European countries, as well as the bills
on this subject tabled in the Assembly of the Portuguese Republic,
deemed it wise not to overlook the threat that the use of data processing
may pose from the viewpoint of individuals' private lives. Accordingly,
it considered that, in addition to prohibiting access by third parties
to files containing personal data, it was necessary to establish
appropriate machinery for the strict supervision of the use of certain
techniques, such as interconnection of files and transboundary data
flows. However, it should be pointed out that the prohibition on
transboundary data flows does not concern personal data alone. The
concept is used here in a broader sense, and includes data of various
41. In view of the importance of this topic,
it was included in this chapter of the Constitution without hesitation.
(Use of data processinq)
"1. All citizens shall have the right to
acquaint themselves with information concerninq them in data banks
and the use for which it is intended. They may require it to be
corrected or updated.
"2. Access by third Parties to files containinq
Personal data, the interconnection of such files and the transmission
of transboundary flows of data shall be forbidden, save in exceotional
cases as laid down in the law.
"3. Computer technoloqy shall not be used
to process data relating to Philosophical or political convictions,
political or trade union affiliation, religious beliefs or the private
life of citizens, except in the case of the processinq of non-identifiable
data for statistical ourposes.
"4. The law shall define the concept of
'personal data' for the purposes of data recordinq.
"5. The allocation of a single national
number to each citizen shall be forbidden."
F. Recognition Of other manifestations of freedom
the riqht to inform and to be informed
42. Former article 37 of the Constitution set
out the right to obtain information, which included in particular
the freedom to seek information and to select sources of information.
43. However, it made no provision for the right
to, be informed, except as regards the management of public affairs.
44. This right to be informed presupposes the
existence of the right to inform and also the existence of conditions
for the provision of information. Consequently, the legislature,
takinq into account similar provisions in the European Convention
on Human Rights (art. 10) and the International Covenant on Civil
and Political Rights (art. 19, para. 2), set forth these two new
rights - the right to inform and to, be informed.
45. While the right to freedom of information
has been strengthened, the Amendment Act did not ignore situations
in which this freedom can encroach upon other individual rights.
Thus it recognized, in addition to the already specified right of
reply, the right of rectification and the right to compensation
for injury suffered.
(Freedom of expression and information)
"1. Everyone shall have the right to express
and make known his thoughts freely by words, images or any other
means, and the right to inform, to obtain information and to be
informed without hindrance or discrimination.
"2. The exercise of these rights may not
be prevented or restricted by any type or form of censorship.
"3. Offences committed in the exercise
of these rights shall be punishable under the general principles
of criminal law, the courts of law having jurisdiction to try them.
"4. The right of reply and rectification,
and the right to compensation for injury suffered, shall be eaually
and effectively quaranteed to all natural and juridical persons.
G. Freedom of the press and safeguards for ideological
46. Freedom of the press, which is intimately
linked with the issue of the right to information, was also the
subject of a number of changes. This freedom raises two questions,
one relating to the independence of the press vis-à-vis those
possessing political or economic power, and the other relating to,
the internal freedom of the press, in other words journalists, freedom
of expression and creation within the enterprise.
47. The Constitution contains an explicit reference
in article 38, and the Amendment Act strengthened this concept by
adding certain provisions. As far as the first aspect is concerned,
particular mention should be made of a new provision that the State
should ensure this freedom and independence, prevent the concentration
of press enterprises and promote non-discriminatory measures in
support of the press.
(Freedom of the press and public
"6. No administrative or fiscal system,
credit policy or foreign trade policy shall affect the freedom of
the press, directly or indirectly, or the independence of organs
of information vis-à-vis those possessing political or economic
power. It shall be the duty of the State to ensure this freedom
and independence, to prevent the concentration of newspaper-publishing
enterprises, particularly through multiple or interlocking shareholdings,
and to promote non-discriminatory measures in support of the press."
48. The independence of the mass media belonging
to the State was also strengthened. In its new wording the Constitution
provides that they must be used in such a way as to guarantee scope
for expression and ideological pluralism.
(Public information-media belonging
or reporting to public bodies)
"l. Public information media belonginq
to the State or other public bodies, or to bodies directly or indirectly
subject to its economic control, shall be used in such a way as
to safeguard their independence of the Government, the administration
and other public authorities, and to guarantee scope for expressing
and comparing various schools of thought."
49. This led the legislature to set forth in
the Constitution a provision conferring on the opposition parties
represented in the Assembly of the Republic the right to space in
newspapers belonging to public bodies and to broadcasting time on
radio and television on a basis of equality with the Government
in all respects. It also set forth these parties' right of reply
to political statements made by the Government.
(Right to broadcasting time)
" 2. The political parties represented
in the Assembly of the Republic which do not participate in the
Government shall have the right, in accordance with the law, to
space in newspapers belonging or reporting to public bodies, and
to broadcasting time on radio and television, allocated in accordance
with their representativeness and equal, in terms of size, duration
and all other characteristics, to the space and time allocated to
the Government. These parties shall also have the right of reply,
in the same organs, to political statements made by the Government."
H. The private nature of religious convictions
50. In accordance with a new provision of the
Constitution (art. 41), freedom of conscience, religion and worship
dictate that the public authorities may not question anyone about
his religious convictions or practices, except in the case of the
collection of statistical information that cannot be identified
individually. In such cases, refusal to reply must have no harmful
consequences for the citizen.
IV. ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND DUTIES
51. Following the amendment of the Constitution,
the realization of economic, social and cultural rights is one of
the fundamental tasks of the State, as article 9 (d) expressly provides.
This concern, clearly demonstrated by the insertion of a provision
on the subject, backs up Portugal's already displayed intention
to prOmote these special rights. After the entry into force of the
1976 Constitution, in which these rights were extensively enshrined,
Portugal ratified the International Covenant on Economic, Social
and Cultural Rights and signed the European Social Charter, displaying
a firm political determination to strengthen these rights.
52. The changes introduced by the Amendment
Act were aimed above all at broadening the scope of certain rights
such as workers' rights, the right to protection of the family,
the right to education and the right to enjoyment and creation in
the cultural field.
A. Protection of migrant workers
53. The legislature introduced various new provisions
covering emigrant Portuguese workers.
(Rights of workers)
"2. It shall be the duty of the State to
guarantee the working conditions, remuneration and rest to which
workers are entitled, in particular by:
" (e) Safeguarding the working conditions and social benefits
of emigrant workers."
"3. In the implementation of education
policy, it shall be the duty of the State:
" (h) To secure for the children of Portuguese immigrants abroad
instruction in the Portuguese language and knowledge of Portuguese
54. The working conditions of emigrants and
their social benefits are issues which Portugal must not neglect.
55. Appropriate conditions must be created so
that the children of these workers can have access to Portuguese
culture, by learning the Portuguese language. Under the new Constitution,
it is now the duty of the State to ensure that these conditions
are met and that workers and their families are able to enjoy the
benefits laid down in the Constitution.
B. Protection of the family
56. The Constitution views the family as a fundamental
institution which must be protected, not only by the State but also
by society. Before the amendment, article 67, paragraph 1 provided
only for protection of the family by the State. The legislature
endeavoured to bring the wording of this paragraph closer to that
of the provisions on protection of the family contained in the Universal
Declaration of Human Rights (art. 16, para. 3), the International
Covenant on Civil and Political Rights (art. 23, para. 1) and the
International Covenant on Economic, Social and Cultural Rights (art.
10, para. 1).
57. It is the duty of the State to create certain
conditions necessary for the protection of this institution. Article
67, paragraph 2 sets out the State's duties in this regard. However,
the Amendment Act added a number of provisions designed to promote
the drawing up of a comprehensive family policy and also the establishment
of a national network of day care centres and other family support
infrastructure. These provisions form new constitutional obligations
with which the State must comply to safeguard and protect the institution
of the family, which this article proclaims to be an important element
"l. The family, as a fundamental element
of society, shall have the right to protection by society and by
the State, and to the realization of all conditions permitting the
personal fulfilment of its members.
"2. It shall be the duty of the State,
in the context of protection of the family, in particular:
" (b) To promote the establishment of a
national network of assistance to mothers and children, a network
of day care centres and family support infrastructure and a policy
for assistance to the elderly.
"(f) Following consultation with associations
representing families, to draw up and carry out a comprehensive
integrated family policy."
58. The Constitution also lays down the right
to found a family, though this is a fundamental right (art. 36).
59. In addition, mention should be made of the
change in article 68 regarding recognition of fatherhood as a value
which must be protected. The former wording made provision only
for protection of the mother in her vital social function.
60. The change introduced puts an end to a situation
which might be regarded as an exception to the principle of equality
of spouses (or, more precisely, quality of parents) set forth in
article 36, paragraph 3, of the Constitution.
61. Motherhood and fatherhood are thus given
equal recognition as "cardinal social values".
(Fatherhood and motherhood)
"l. Fathers and mothers shall have the
right to the protection of society and the State in performing their
irreplaceable role with regard to their children, particularly in
education, and in guaranteeing that they may achieve vocational
fulfilment and participate in the civic life of the country.
"2. Motherhood and fatherhood are cardinal
C. Special ed cation for the disabled
62. The situation of the physically and mentally
disabled also warrants special protection under the Constitution.
63. Drawing on the principles set forth in the
United Nations Declaration on the Rights of Mentally Retarded Persons
and the European Social Charter (art. 15), the Constitution reaffirms
the principle of equality of rights and duties vis-à-vis
such persons and entrusts to the State the task of carrying out
a national policy for prevention, treatment, rehabilitation and
integration (see Constitution, art. 71).
64. In this context, and under the terms of
a new provision added by the Amendment Act, it is the duty of the
State to promote and support special education for the disabled.
" 3. In the implementation of education
policy, it shall be the duty of the State:
"(g) to promote and support special education for the disabled.
D. The right to enjoyment and creation in the
65. The right to enjoyment and creation in the
cultural field is guaranteed by the Constitution, in articles 73
66. This important constitutional provision
was appreciably strengthened by the Amendment Act, which entrusted
the State with a number of tasks designed n. to guarantee the exercise
of this right:
(Enjoyment and creation in the
"l. Everyone shall have the right to enjoyment
and creation in the cultural field, and the duty to preserve, defend
and enhance the cultural heritage.
"2. It shall be the duty of the State,
in co-operation with all those working in the cultural field:
"(a) to encourage and ensure access by
all citizens, particularly workers, to the means and instruments
of cultural action, and to correct imbalances in this area which
exist in the countryp
"(b) to support initiatives designed to
stimulate individual and collective creativity, in its various forms
and expressions, and to disseminate cultural achievements and assets
"(c) to promote the protection and enhancement
of the cultural heritage, by making it an element which awakens
the common cultural identity;
"(d) to develop cultural relations with
all peoples, especially Portuguese-speaking peoples, and to ensure
the safeguarding and promotion of Portuguese culture abroad;
"(e) to co-ordinate cultural policy with
policies in other sectors."
67. At the same time, under the new drafting
of this article, everyone is expected to promote, uphold and enhance
the Portuguese cultural heritage, and has the right to forestall
or eliminate factors contributing to its debasement, in accordance
with the law (para. 3).
V. FUNDAMENTAL INNVOATIONS IN CRIMINAL LAW AND CRIMINAL PROCEDURE
68. A body of criminal law and criminal procedure
has come into existence since the submission of Portugal's initial
report, some of the legal provisions constituting an adaptation
of the principles and rules of the fundamental law derived from
the first constitutional amendment under Act No. 1/82 of 30 September
69. The new Penal Code approved by Decree-Law
No. 400/82 of 23 December, came into force on 1 January 1983.
70. One of the features of the new Code is the
principle, set out in the general part that any sentence shall be
based, from the axiological and normative standpoint, on specific
culpability and a system of punishment in which execution of the
sentence is based on a philosophy of education and reinteqration.
The abolition of the distinction between the various forms of imprisonment,
whereby sentences involvinq deprivation of liberty differ only in
terms of their duration, the principle whereby no effect of a civil,
occupational or political, nature shall necessarily result from
the application of a sentence, and the system of measures not involvinq
deprivation of liberty should therefore be emphasized.
71. Regardinq the sDecial part, mention may
be made of the two lines of oolicy referred to in the preamble,
namely a decriminalization policy and a nrecriminalization"
option, more particularly in respect of crimes constitutinq a public
72. Protection of the assets and interests of
the victim has also drawn the attention of the leqislature. Balance
is sought by takinq into account, on the one hand, the policy towards
decriminalization and, on the other hand, the increase in the number
of crimes in resPect of which prosecution is dependent on the lodainq
of a complaint by the victim.
73. The Provisions concerninq minor offences
in the Penal Code of 1886 remain in force by virtue of article 6
of Decree-Law No. 400/82 of 23 September.
74. Decree-Law No. 433/82 of 27 october contains
substantive and procedural provisions concerning the legal system
for administrative offences.
75. its preamble states that:
"The introduction of administrative offences is due to the
growinq interventionist tendencies of the modern State, which is
progressively broadeninq its action in the areas of the economy,
health, education, culture, ecoloqical balance, etc.
"This characteristic, common to most States
and modern technological societies, is of particular siqnificance
in view of the profound and well-known transformations of recent
years, which were reflected in the Fundamental Law of 1976."
76. Further to this text, important sectors
of Public life have been regulated by other instruments, such as
Decree-Law No. 28/84 of 20 January, which established the new juridical
system for economic offences and offences aqainst public health,
in addition to providinq for and punishinq criminal. acts and administrative
77. Consumer protection is provided, furthermore,
through the requlations qoverninq advertisinq, by Decree-Law No.
303/83 of 28 June.
78. Apart from the Penal Code, mention should
also be made of the entry into force of the special. Penal system
concerninq younq people, established in Decree-Law No. 401/82 of
23 September. Decree-Law No. 402/82 of 23 September, which introduces
amendments to the Co-de of Penal Procedure and to the system for
the execution of sentences and safequards made necessary by virtue
of new Provisions of substantive law.
79. A commission was instructed to draft a new
Code of Penal Procedure, which has just been apDroved by Decree-Law
No. 78/87 of 17 February. This is due to enter into force on 1 June
1987, and will also be applicable to future procedures (art. 2,
para. 1) . However, immediate effect was given (para. 2) to the
Provision concerninq the abolition of the system of bail for certain
more serious crimes, and to article 209 of the Code (see below).
80. The formalities necessary for approval of
a new Code of Penal Procedure were initiated with the submission
to parliament of the proposal for enablinq legislation, which contains
an annex setting out and substantiatinq the text of the draft code.
This legislative proposal was enacted as Act No. 43/86 of 26 September
and published in the Diário da República (No. 222,
series I) on the same date. Its main features are as follows:
(a) Simplified, less bureaucratic and speedier procedure compatible
with the administration of justice and the safeguardinq of fundamental
human rights and social peace;
(b) Equal positions in law for the prosecution
and for the defence in respect of all Procedural acts, and material
equality concerninq the availability of "weapons" in the
(c) Balance between the accusatorial nature
of the proceedinqs and the principle of judicial investiqation;
(d) Riqorous definition of preciselY when and
how a person becomes the defendant in the proceedings. For this
purpose, the specific duties of the judicial authorities and of
the police are established and the status of the defence counsel
(e) Establishment of the Statels obligation
to bear the costs of defence counsel assiqned by the court (except
in cases where reimbursement is payable) as part of a policy of
access to, justice;
(f) Strict subordination of the procedural intervention
of the private plaintiff (assistente) to the principal intervention
of the public prosecutor, except in cases where public proceedings
are initiated followinq a complaint or following a complaint and
private accusation. The private plaintiff has the right of apoeal,
independently of the public prosecutor, in respect of decisions
(g) Maintenance of compulsory notice of civil
actions arisinq from acts material to prosecution in a criminal
court (adesão obrigatória da acção civil
ao processo penal), but extending to situations in which civil actions
may be conducted in separate proceedinqs. in a criminal court, the
public prosecutor may act as public defence counsel for injured
parties who lack adequate financial means and, in qeneral, will
act in a subsidiary capacity in respect of a civil action;
(h) Placinc the judicial police under the guidance
of the public Prosecutor and the judqe as reqards acts fallinq within
(i) Requlation of the conditions, arrangements
and Procedure for compensation payable by the State in resPect of
damaqes arisinq from unlawful or unjustified arrest or Preventive
detention and the payment of compensation for judicial error;
j) Adaptation of the system of execution of
sentences to the principles of criminal policy set out in the Penal
Code, particularly as regards the activities of services connected
with social reinteqration, parole, probation and other penal arranqements
involvinq partial deprivation of liberty.
81. Judicial and other institutions concerned
with the administration of justice have also received the attention
of the legislature.
82. Changes are provided in the enabling legislation
for criminal procedure (art. 6) to modify the status of judaes and
the public prosecutor. These changes will affect the powers and
statutory role of the public prosecutor under the new penal nrocedure.
The article also provides for the approval of a new oraanizational
law qoverninq the judicial police.
83. Police bodies have been the subject of leqislative
initiatives by the Executive to render them more effective in their
role of preventing and combatinq terrorism and orqanized crime.
84. The most significant laws in this regard
(a) Decree-Law No. 458/82 of 24 November, which establishes orqanizational
and statutory provisions qoverning the judicial police. This is
referred to in the discussion on the relevant articles of the Covenant,
particularly in connection with the statutory duties and rules governinq
the use of firearms;
(b) Decree-Law No. 217/83 of 25 May, authorizes
direct access by the judicial police to car registration data by
means of the policels computer terminals. This legislative measure
is a response to the need to investigate crimes involvinq car theft
and the use of stolen cars in committinq serious crimes.
85. For the public safety police, a computer
service was introduced under Decree-Law No. 82/84 of 14 March. Personnel
assigned to this service are bound by the requirement of professional
secrecy. The data on the files are confidential in nature.
86. The statute of the public safety police
(PSP) was introduced under Decree-Law No. 151/85 of 9 May.
87. The PSP's legal powers include the prevention
and suppression of crime, the initiation of proceedinqs in criminal
cases and administrative offences and the development of civic training
activities relating in particular to the prevention of delinquency
and to basic road traffic requlations. It also has the power to
control arms, munitions and explosives in qeneral and performs personal
88. The legal provisions concerning the use
of coercive means and the statutory duties and requlations qoverning
the use of firearms will be discussed in connection with the respective
articles of the Covenant.
89. The penitentiary services were restructured
in accordance with the provisions of Decree-Law No. 268/81 of 16
September. The main purpose of the reform was to ensure full implementation
of the new penitentiary reform (Decree-Law Nos. 265/79 of 1 Auqust
and 49/80 of 22 March), to pursue the policy for the social reintegration
and employment of offenders, to complete the restructuring of the
services and to improve co-ordination between penitentiary establishments.
90. In implementation of some of the measures
in the new Penal Code, Decree-Law No. 319/82 of 11 August established
a department known as the Institute for Social Reintegration.
91. In accordance with Decree-Law No. 204/83
of 20 May - which def ined the organizational statute of the Institute
- the fundamental objective of this body is to promote the prevention
of crime through the social reintegration of offenders, whether
or not they are liable to prosecution, and to provide support for
minors who are at risk or socially maladjusted. In co-operation
with all entities within the system of administration of justice,
the Institute participates in the drafting of legislation and in
the implementation of institutional measures - specifically in penitentiary
and psychiatric institutions - as well as providing support for
released offenders, with a view to facilitating their social reintegration.
VI. NATIONAL DEFENCE
A. Basic features
92. Act No. 29/82 of 11 December approved the
law governing national defence and the armed forces.
93. Under the terms of article 1, national defence
is the activity furthered by the State and by citizens, with respect
for democratic institutions, to ensure national independence, territorial
integrity and the freedom and security of the population against
any external aggression or threat.
94. Under article 2, Portugal advocates the
solution of international problems and conflicts through negotiation
and mediation, believing that has a duty to contribute to the preservation
of international peace and security. For the purpose of self-defence,
recognized by the Charter of United Nations, Portugal reserves the
right to go to war in the event of effective or imminent military
95. The main outlines and measures of national
defence policy are necessarily included in the Government programme
(art. 41, para. 2) approved by the Council of Ministers and submitted
to the Assembly of the Republic (arts. 4 and 40) .
96. The lasting objectives of national defence
are enumerated in article 5:
(a) To guarantee national independence;
(b) To ensure territorial integrityl
(c) To safeguard the freedom and security of
the population and the protection of their goods and of the nation's
(d) To guarantee freedom of action of the sovereign
bodies, the "proper functioning" of democratic institutions
and the possibility of carrying out the fundamental tasks of the
(e) To contribute to the development of the
moral and material capacities of the national community so as to
Prevent or respond by adequate means to any external aqqression
(f) To ensure the maintenance or re-establishment
of peace in keepinq with the nation's interests.
97. Under article 6, the national defence policy
is permanent and global (coverinci military and non-military fields).
It is incumbent on all orqans and departments of the State to promote
the conditions essential for implementinq the policy, and public
information on the relevant duties and quidelines must be provided
on a constant and updated basis.
98. The opposition parties have to be consulted
by the Government on matters concerninq national defence policy.
B. Responsibility for national defence and related
99. Defence of the homeland is a fundamental
duty of all the Portuquese people, and this applies both to the
national community in qeneral and to each citizen in particular;
military defence of the Republic is the responsibility of the armed
100. Military service is compulsory under the
terms and for the period prescribed by law. Citizens considered
unfit for armed military service are required to perform non-armed
military service or civic service suited to their situation. Civic
service may replace or supplement military service in the case of
citizens not subject to military duties.
101. No citizen may be emr)loyed by the State
or other public entity if he has not completed his military duties
or his civic service, where the latter is comr)ulsory. On the other
hand, no citizen may be prejudiced in his assiqnment, social benefits
or reqular employment by virtue of the performance of military service
or compulsory civic service.
102. Conscientious objectors are citizens who,
because of their religious, moral or philosophical convictions,
do not believe that it is right to use violent means against their
neiqhbours, even though their aim is national defence, collective
or personal. Such persons are required to perform civic service
which is as long and- exactinq as armed military service.
C. Organization, functioning and discipline
of the armed forces
103. The armed forces provide national defence
in conformity with the Constitution and the laws in force.
104. Article 46, paragraph 4, of the Constitution
prohibits armed, military-type, militarized or oaramilitary associations.
105. Establishing the basic principles of military
status, including specifically the rights and duties of military
personnel and guidelines regarding their careers, is a matter that
falls within the competence of the Assembly of the Republic (arts.
27 and 40).
106. The armed forces are in the service of
the Portuguese People and are strictly apolitical. None of their
members may utilize their weapons, rank or function for political
1. Restrictions on the exercise of rights by
military personnel (art. 31)
107. The exercise of the rights of expression,
assembly, demonstration, association and collective petition and
the right to vote of military and militarized personnel is subject
to the following restrictions:
(a) Military and militarized personnel may not
make public statements which are of a political nature or jeopardize
the cohesion and discipline of the armed forces or fail to respect
the duty to refrain from political activity and to observe apolitical
(b) Without higher authorization, they are prohibited
from making Political statements on matters concerning the armed
forces, with the exception of articles of a purely technical nature
included in publications which are issued by the armed forces and
edited or managed by military Personnel;
(c) They are prohibited from convening or participating
in demonstrations of a political, partisan or trade union nature
and in meetings of the same nature, except in the latter case, if
they are dressed in civilian clothes and engage in no other activity;
(d) They are prohibited from joining associations
of a Political, Partisan or trade union nature and from participating
in the activities of associations of this kind other than ethical
(e) They are prohibited from promoting or submitting
collective petitions addressed to sovereign bodies or to their respective
superiors regarding matters of a political nature or concerning
the armed forces;
(f) They may not be elected to the Presidency
of the Republic, the Assembly of the Republic, the Regional Assemblies
of the Azores and Madeira, the Legislative Assembly of Macao or
the assemblies and executive bodies of local government or popular
(g) The constitutional provisions concerning
the rights of workers are not applicable to them;
(h) Citizens engaged in compulsory military
service are bound by the requirement to refrain from participating
in any political, partisan or trade union activity.
2. The role of the Provedor de Justiça
108. In cases of acts or omission by the authorities
responsible for the armed forces which result in the violation of
rights, freedoms and safeguards or which cause damage, complaints
may be lodged with the Provedor de Justiça (Ombudsman) by
private citizens, in accordance with the law; and by members of
the armed forces, once remedies have been exhausted through the
administrative channels laid down by law, except as regards operational
or classified matters.
D. The supreme authority for national defence
and the armed forces
109. The organs of the State directly responsible
for national defence and the armed forces are:
(a) The President of the Republic, Commander-in-Chief
of the Armed Forces (art. 38);
(b) The Assembly of the Republic (art. 40),
which has the responsibility to legislate for and supervise government
(c) The Government (arts. 41 to 45), which has
the responsibility to implement the nation's defence policy;
(d) The Higher Council of National Defence (arts.
46 and 47), which is an advisory body;
(e) The Higher Military Council (arts. 48 and
49), which is the military advisory body.
110. It is the specific responsibility of the
Government to ensure the free exercise of the sovereignty and the
functioning of its organs in time of war or crisis. The Ministers
are responsible for national defence policy and must help in studying
and adapting their services to respond to states of war or crisis
situations by directing the participation of their services in mobilization
and civil defence.
111. The Higher Council of National Defence
is required to advise on various matters, more particularly on:
(a) Legislation relating to the organization
of national defence and the definition of related duties and legislation
governing the use of the armed forces in states of siege or in emergencies;
(b) The organization of civil defence, assistance
to the population and protection of public property and individuals
in the event of war;
(c) The exercise, in time of war, of the functions
of assisting the President of the Republic, the Prime Minister and
the Minister of Defence in all matters concerning the overall conduct
of the war (see art. 64).
112. During the state of war - that is, from
the time of the declaration of war to the restoration of peace -
the competent organs shall, in conformity with the Constitution
and the law, adopt all the political, legislative and financial
measures deemed necessary for the conduct of the war and the restoration
of peace (arts. 60 to 64).
113. Damage resulting from the war is the responsibility
of the aggressor, and proper compensation must be claimed in the
peace treaty or armistice agreement (art. 66).
VII. CIVIL DEFENCE
114. Decree-Law No. 78/75 of 22 February established
the National Civil Defence Service, a State department responsible
for implementing directives to prevent disasters or catastrophes
and minimize their effects, and for providing relief and assistance
in the event of any such disaster or catastrophe. Decree-Law No.
510/80 of 25 October approved the organizational statute of the
National Civil Defence Service.
115. Under article 1 of the Decree-Law, civil
defence covers all measures designed to protect citizens and the
population as a whole from any danger to the life, health, resources
and cultural and material property, by cutting down the risks and
minimizing damage in the event of accidents, catastrophe, disaster
116. The objectives of civil defence are, under
article 2, the implementation of:
(a) Measures of prevention;
(b) Measures adopted to control the situation,
in cases of emergency, by the competent sovereign bodies;
(c) Measures designed to protect material and
cultural property, both public and private;
(d) Measures designed to safeguard natural resources;
(e) Measures of passive defence, in co-operation
with the armed forces.
117. The National Civil Defence Service, as
an advisory body to the Government, is required to supervise both
the studies, plans and programmes to be drawn up and also the actions
to be taken by the various departments, by establishing links with
foreign and international organizations.
118. Decree-Law No. 279/84 of 13 August set
up the National Council for Emergency Civil Planning, which is responsible
to the Prime Minister.
119. At the national level, the Council defines
and regularly updates emergency civil planning policies so as to
co-ordinate, in a crisis situation or in time of war, the management
of available resources with civil defence activities, to ensure
the functioning of the machinery of the State, support the armed
forces and provide for the survival and capacity of resistance of
the nation, the protection of the population and the safeguarding
of the nation's heritage.
VIII. THE COMMISSION ON THE BLACK
PAPER ON THE FACIST REGIME
120. Decree-Law No. 110/78 of 26 May established
the Commission on the Black Paper on the Fascist Régime,
which is responsible for promoting and centralizing research and
collating and analysing documents and other materials which may
help to clarify and elucidate the past of the fascist régime
121. Under Decree-Law No. 77/81 of 18 April,
the "Salazar" and "Marcelo Caetano" archives
were deposited in the National Library where they are to be kept
and inventoried. This Decree-Law lays down that public access to
these archives will be allowed only after conservation work is completed,
and no sooner than 25 years after the death of their former owners.
122. Decree-Law No. 33/85 of 31 January established
that, in line with Decree-Law 77/81, the members on the Commission
on the Black Paper have free access to these archives for the purpose
of performing their duties.
123. The Portuguese Constitution repeatedly
displays a concern for the protection of human rights, and systematically
upholds the principle of full equality before the law and non-discrimination.
Consequently, it is no surprise to find, among the fundamental principles
of the Constitution, that "the Portuguese Republic is a democratic
State subject to the rule of law, based on the sovereignty of the
people, on respect for and the safeguarding of fundamental rights
and freedoms ..." (art. 2), that "in its international
relations Portugal shall be governed by the principles of ... respect
for human rights ..." (art. 7, para. 1), and that "the
basic tasks of the State are ... (b) to safeguard fundamental rights
and freedoms and respect for the principles of the democratic State
subject to the rule of law ..." (art. 9).
124. In the section of the Constitution concerning
fundamental rights and duties, article 12, Paragraph 1, lays down
that "all citizens shall enjoy the rights and be subject to
the duties laid down in the Constitution
". Article 13
"1. All citizens shall have the same social
dignity and shall be equal before the law.
" 2. No one shall be privileged, favoured,
put at a disadvantage, deprived of any right or exempted from any
duty on account of his or her ancestry, sex. race, language, place
of origin, religion, political or ideological convictions, education,
economic situation or social status".
125. This principle of equality is also applicable
in the case of aliens or Stateless persons. Article 15 of the Constitution
"1. Aliens and Stateless persons temporarily
or permanently resident in Portugal shall enjoy the same rights
and be subject to the same duties as Portuguese citizens.
"2. The provisions of the foregoing paragraph
shall not apply to political rights, the performance of public duties
not of a predominantly technical nature, or the rights and duties
restricted exclusively to Portuguese citizens under the Constitution
and by law."
126. The provisions of the Constitution and
the law, interpreted and applied in accordance with the Universal
Declaration of Human Rights (Constitution, art. 16), thus prohibit
any instruments with contrary effect. The validity of laws and acts
of the State is dependent on their consistency with the Constitution
(art. 3, para. 3), and those committing breaches of these fundamental
principles are subject to the provisions of the law laid down for
the protection of fundamental rights: recourse to the courts, liability,
and so on.
127. Most Portuguese legal experts consider
that article 8 of the Constitution of the Portuguese Republic has
instituted a system whereby international law is fully accepted:
"1. The rules and principles of general
or ordinary international law shall be an integral part of Portuguese
"2. Rules derived from international conventions
duly ratified or approved shall, following their official publication,
apply in internal law insofar as they are internationally binding
on the Portuguese State.
"3. Rules approved by the competent organs
of international organizations of which Portugal is a member shall
apply directly in internal law, provided that the treaties establishing
such bodies expressly so stipulate."
128. In the view of these experts, the rules
and principles laid down in article 8 of the Constitution stand
below the Constitution but above the law. Accordingly, the rights
set out in international conventions and agreements - as well as,
of course, in the International Covenant on Civil and Political
Rights - are, following ratification by Portugal and publication
in the Diário da República, directly applicable and
directly binding on all public and private bodies (Constitution,
art. 18). This means that, where a breach of these principles is
established, the victim may have recourse to the courts to assert
his or her rights, and justice may not be denied to him or her for
lack of financial resources (Constitution, art. 20). Where a Person's
economic circumstances prevent him or her from paying legal costs,
legal aid will enable him or her to go to court without having to
pay legal expenses or lawyers' fees in advance.
129. The courts, which are the organs of supreme
authority competent to administer justice in the name of the people
(Constitution, art. 205), ensure "the defence of those rights
and interests of citizens that are protected by law", punish
violations of democratic legality and resolve conflicts of public
and Private interests (Constitution, art. 206).
130. Under article 207 of the Constitution,
the courts "shall not apply rules which violate the Provisions
of the Constitution or the principles set forth in it".
131. It is the task of the Constitutional Court
to conduct examinations of constitutionality (Constitution, art.
213). This review may be preventive in cases concerning acts, treaties
or agreements transmitted to the President of the Republic for promulgation
or approval (Constitution, art. 278); abstract concerning any provision
of law (Constitution, art. 281); and concrete in relation to the
decisions of courts which refuse to implement a rule on the grounds
that it is unconstitutional, or which apply a rule which has been
claimed to be unconstitutional during court proceedings (Constitution,
art. 280). It should be noted that, under paragraph 2 of this article,
when a rule which a court has refused to implement appears in an
international convention, the Public Prosecutor's Department must
appeal against the decision before the Constitutional Court.
132. Nor should it be forgotten that the Constitution
assigns to the Provedor de Justiça (Ombudsman) - who, after
examining complaints lodged by citizens, makes recommendations to
the competent organs to prevent or make good acts of injustice (Constitution,
art. 23) - the power and the duty to invite the Constitutional Court
to declare unconstitutional provisions which he considers to be
contrary to the Constitution.
133. Lastly, mention should be made of the right
of petition and popular action laid down in article 52 of the Constitution,
which enables citizens to lodge claims or complaints in defence
of their rights, the law or the public interest.
134. At the international level, as a result
of the ratification of several international conventions, citizens
who consider themselves victims of a violation of the rights set
out in those legal instruments may, in accordance with the procedures
set out therein, apply to the bodies set up under those instruments
to monitor their application.
135. This is the case in particular for the
European Commission of Human Rights and the European Court of Human
Rights - established in pursuance of the European Convention on
Human Rights under the auspices of the Council of Europe - as well
as the United Nations Human Rights Committee.
The right of peoples to self-determination
136. The Portuguese Constitution sets forth
a number of principles on the basis of which it may be stated unequivocally
that the Portuguese people can freely choose its political status
and pursue its economic, social and cultural development. Article
1 states that "Portugal is a sovereign Republic founded on
human dignity and the will of the people, and committed to its own
transformation into a classless society". Article 2 states
"The Portuguese Republic is a democratic
State subject to the rule of law, based on the sovereignty of the
people, on respect for and the safeguarding of fundamental rights
and freedoms, and on plurality of democratic expression and democratic
political organization, whose object is to secure the transition
to socialism through the achievement of economic, social and cultural
democracy and the extension of participatory democracy."
137. The use of the expression "sovereign
Republic" was intended to reflect the principles of national
sovereignty, self-determination and independence. In other words,
the Portuguese State drafts the Constitution, organizes its power,
establishes new public bodies, reformulates its position vis-à-vis
society and projects its actions in the field of international relations.
It has the capacity to take independent decisions on the future
of the national community. And it will do so in accordance with
the will of the people, shaped through pluralism and competition
between parties and political groupings and manifested "through
universal suffrage, on a basis of equality, in direct, secret and
periodic elections and in other forms laid down in the Constitution"
(Constitution, art. 10).
138. One of the basic tasks of the State is
"to defend political democracy and secure the organized participation
of the people in solving national problems" (art. 9 (c).
139. Provision is made for the formation of
political parties as a means of ensuring freedom of association.
This freedom also encompasses the opportunity to join such parties
and "through them to contribute ... to formation of the will
of the people and to the organization of political power" (art.
51, para. 1). In this way the parties are a form of organization
and expression of the will of the people, although they are not
permitted to promote violence or adopt fascist ideology (art. 46,
paras. 1 and 4).
140. Thus, citizens have the right to take part
in political life and the control of the country's public affairs
(art. 48), either directly or through freely elected representatives.
Their direct and active participation is considered to be "a
condition and fundamental instrument for the consolidation of the
democratic system" (art. 112).
141. In appointing their representatives through
elections, citizens are given the opportunity to play a part in
determining future policy and to oversee the application of this
policy. The tasks of the Assembly of the Republic, "the representative
assembly of all Portuguese citizens" (art. 150) , are to enact
legislation on all subjects, except those reserved to the Government,
to approve the plan and State budget and examine annual and final
reports on the implementation of the plan, and to ensure respect
for the Constitution and laws and review the programme and the acts
of the Government and the administrative authorities.
142. The Government is the organ responsible
for the general policy of the country (art. 185). The Prime Minister
is appointed by the President of the Republic after consultations
with the parties represented in the Assembly of the Republic, due
regard being had to election results (art. 190). The Government
is answerable to the President of the Republic and to the Assembly
of the Republic (art. 193).
143. The Government's programme sets forth the
principal policy directions and measures to be adopted or proposed
in the various spheres of governmental activity (art. 191). The
programme is presented for scrutiny by the Assembly of the Republic
(art. 195), which may reject it (art. 195, paras. 3 and 4), in which
case the Government must resign (art. 198 (d)).
144. The Government itself may ask the Assembly
of the Republic for a vote of confidence on a statement of general
policy or on any matter of national interest (art. 196). If the
motion of confidence is not approved, the Government must resign
(art. 198 (e)).
145. The deputies may pass motions of censure
on the Government concerning the implementation of its programme
or any matter of national interest. The approval of such a motion
entails the resignation of the Government.
146. It may be concluded from this brief analysis
that the Constitution provides for a variety of ways of ensuring
participation by the people in formulating policy and monitoring
147. The economic, social and cultural development
of the Portuguese people will be ensured both by the organs of supreme
power and by the citizens themselves.
148. It is the task of the Assembly of the Republic,
through essentially legislative means, and the Government, through
its programme of action and its administrative function, to "issue
the regulations necessary to give effect to the laws" (art.
202 (c)), "defend democratic legality" (art. 202 (f))
and "take all steps necessary for the promotion of economic
and social development and the satisfaction of the needs of the
community" (art. 202 (g)). The citizens enjoy the rights, freedoms
and guarantees set out in the Constitution (art. 12), which must
be respected by public and private bodies (art. 18). Whenever their
rights, freedoms and guarantees are violated, citizens have the
right of access to the courts (art. 20) and the right to resist
149. In this way, part I of the Constitution
sets out fundamental rights and duties, under section II - rights,
freedoms and safeguards, and under section III - the various economic
(chap. I), social (chap. II) and cultural (chap. III) rights, laying
down the duties of the State in the realization of these rights.
These duties must comprise the formulation of various measures,
on the basis, naturally, of the Government's programme, and of placing
them before the Assembly of the Republic.
150. These principles of national sovereignty,
self-determination and independence also guide the establishment
of international relations with other States. Article 7 of the Constitution
provides that Portugal "shall be governed by the principles
of national independence, respect for human rights, the right of
peoples to self-determination and independence, equality among States
... and co-operation with all other peoples for the emancipation
and progress of mankind".
Paragraphs 1 and 2: The right
151. The Portuguese Constitution lays down a
principle of the greatest importance - the principle of equality,
which is set out in article 13. By virtue of this article, all citizens
are equal before the law, and:
"2. No one shall be privileged, favoured,
put at a disadvantage, deprived of any right or exempted from any
duty on account of his or her ancestry, sex, race, language, place
of origin, religion, political or ideological convictions, education,
economic situation or social status".
152. It is for that very reason that the enumeration
of the basic tasks of the State includes the need "to promote
the welfare and quality of life of the people, real equality among
the Portuguese and the realization of economic, social and cultural
rights" (art. 9 (d)).
153. Article 13 sets forth three fundamental
considerations which the State must bear in mind: the prohibition
of judicial discretion, so that where situations are the same, equal
treatment is given; the prohibition of discrimination based on subjective
considerations, such as those listed in paragraph 2; and the need
for differentiation if inequality of opportunity justifies compensation.
154. Thus the principle of equality has a social
function which underpins the duty to eliminate or alleviate inequality
in order that equality before the law may be ensured. It is for
this reason that the Constitution makes provision for a number of
cases of "Positive discrimination".
155. Two examples may be cited in this regard:
(a) Article 69, paragraph 2, concerning children,
which mentions the special protection which must be given to "orphans
and abandoned children against any form of discrimination or oppression
and against abuses of authority in the family and other institutions".
(b) Article 76, paragraph 1, on the system governing
admission to universities, which lays down that the State must encourage
and facilitate the admission of workers and workers' children.
156. In addition to this general principle set
forth in article 13 of the Constitution, mention may be made of
several other provisions which promote this concern to secure equality
and prevent all forms of discrimination.
157. Article 60 deals with the rights of workers,
and reaffirms the Principle of equality by referring to:
"1. All workers, regardless of their age,
sex, race, citizenship, place of origin, religion or political or
ideological convictions, ...".
158. While these considerations do appear in
other provisions of the Constitution, it was considered necessary
to emphasize their application to certain specific situations. In
this regard mention might be made of citizenship, and the inadmissibility
of different treatment as between Portuguese and aliens; or the
provisions on place of origin, which forbid discrimination in access
to a job or its reservation for those from a particular region (a
principle which is reaffirmed in the section on autonomous regions
- art. 230 (c)).
159. This concern finds reflection in other
pieces of legislation - for example, Act No. 4/84 of 5 April, concerning
protection of motherhood and fatherhood, article 2 of which lays
down the equality of parents, in the following terms:
"1. Professional fulfilment and participation
in the civic life of the country shall be guaranteed to fathers
and mothers, on an equal footing.
"2. Fathers and mothers shall have equal
rights and duties as regards the maintenance and upbringing of children.
160. The system of leave granted by virtue of
this Act and Decree Law No. 136/85 of 3 May naturally also reflects
this concern. The following situations may be cited:
(a) Article 15 of Act No. 4/84 and article 17
of Decree Law No. 136/85, concerning part-time work, which may be
authorized "for workers with children aged under 12";
(b) Article 13 of Act No. 4/84 and article 8
of Decree Law No. 136/85, concerning leave to care for sick minors
and the family:
"Workers shall have the right to leave
... in the event of sickness or an accident affecting adopted children
... aged under 10".
161. A number of court decisions also deserve
mention in this regard.
162. In opinion No. 1/76 (drawn up before the
first amendment of the Constitution, which was introduced through
Act No. 1/82), the Constitutional Commission declared unconstitutional
Regional Decree No. 2/76 adopted by the Regional Assembly in Madeira,
on the grounds that it stipulated that preference should be given
in the assignment of teachers to those originating from or residing
in the region. The criterion was contrary to article 13, paragraphs
1 and 2, on the principle of equality, and article 48, paragraph
4, on the right of free and equal access to public employment. On
the basis of this opinion, the Council of the Revolution declared
the Decree unconstitutional.
163. In opinion No. 2/81, the Constitutional
Commission declared unconstitutional article 52 of Act No. 2135
of 11 July 1968, on military service, which stipulated that preference
should be given, in admission to public employment, to those who
had completed their military service, laying down a set of priorities
based on merit displayed during the performance of such service.
This stipulation was contrary to article 13, paragraph 1, of the
Constitution, in that it made provision for different treatment
of citizens exercising the same right - the right of access to public
employment. It was also contrary to article 13, paragraph 2, in
that military service is generally performed only by male citizens,
being optional for women.
164. The Act also violated article 52 (c) of
the Constitution (art. 59, para. 3 (b) following the amendment of
the Constitution), which lays down equality of opportunity in the
choice of occupation or employment and conditions such that access
to a professional category is not prohibited or restricted by reason
of a person's sex.
165. On the basis of this opinion, the Council
of the Revolution, in resolution No. 21/81, declared the article
166. The Assembly of the Republic is currently
considering a new bill on military service, bill No. 14/IV. It is
of interest to note its provision that:
"No citizen may be put at a disadvantage
in his or her assignment, social benefits or permanent employment
by reason of the performance of the military obligations laid down
in the law" (art. 46, para. 1).
Article 55 of the bill, relating
to the military obligations of female citizens, provides that they
"shall be exempt from military obligations, but may perform
effective military service voluntarily".
167. Equal treatment of aliens and Portuguese
nationals is a traditional rule in Portuguese constitutional law,
and one which is strengthened by the present Constitution's universalist
perspective on the interpretation of fundamental rights.
168. The provisions of the Constitution and
laws relating to fundamental rights must be interpreted and applied
in accordance with the Universal Declaration of Human Rights (art.
16, para. 2).
169. The principle of equality of treatment
is set forth in article 15, paragraph 1, of the Constitution:
"Aliens and stateless persons temporarily
or permanently resident in Portugal shall enjoy the same rights
and be subject to the same duties as Portuguese citizens."
170. This principle, which is naturally applicable
to traditional rights and freedoms, is also applicable to positive
rights. However, there are restrictions on this principle as regards
political rights (since the performance of public duties is not
of a predominantly technical nature) as well as the rights and duties
restricted exclusively to Portuguese citizens under the Constitution
and by law (art. 15, para. 2). However, it may be said that, in
addition to civil rights, economic and social rights are generally
granted to non-nationals and Portuguese citizens on the same conditions,
and that only the Constitution or an express legal provision may
justify a departure from this principle.
Paragraph 3: The right to an
171. Under article 18 of the Constitution, the
constitutional provisions relating to rights, freedoms and safeguards
are "directly applicable and binding on all public and private
172. Furthermore, under article 22, the State
and other public authorities are liable under civil law for all
acts or omissions in the performance of their duties or caused by
such performance which result in violations of the rights, freedoms
and safeguards of citizens.
173. Article 20 provides that all citizens have
the right to legal protection, and that they are guaranteed access
to the courts for the defence of their rights, without any obstacle
of an economic nature. It is the responsibility of the courts to
ensure the defence of those rights and interests of citizens that
are Protected by law, to punish violations of democratic legality
and to resolve conflicts of interest (Constitution, art. 206).
174. However, in the case of acts or omissions
by the public authorities, citizens may also lodge complaints with
the Provedor de Justiça (Ombudsman), who examines them without
power of decision, and makes to the competent organs such recommendations
as are necessary in order to prevent or make good acts of injustice
(art. 23). They may in addition, individually or collectively, submit
to the organs of supreme authority or to any other authority petitions,
representations, claims or complaints in defence of their rights
175. Article 21 sets forth the right to resist
any order that infringes rights, freedoms or safeguards and to repel
by force any form of aggression if recourse to Public authority
176. Portugal has ratified the European Convention
on Human Rights, article 13 of which sets out the right to "an
effective remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an official
177. As Portugal has recognized the competence
of the European Commission of Human Rights and the European Court
of Human Rights, violations of this provision may be brought before
178. In ratifying the Optional Protocol to the
International Covenant on Civil and Political Rights, Portugal also,
of course, recognized the competence of the Human Rights Committee
to receive communications concerning violations of the rights set
forth in the Covenant, particularly in article 2.
Rights and safeguards vis-à-vis the administration
179. This problem was studied in considerable
detail in the initial report submitted by Portugal (CCPR/C/6/Add.6
- see in particular pp. 15 et. seq.).
180. Since then, a number of legislative measures
have been adopted. These measures are outlined below.
Responsibility of holders of political office
181. In article 120, the Constitution refers
to the status of holders of political office and stipulates that
they are politically, civilly and criminally responsible for acts
and omissions in the performance of their duties (para. 1).
182. Paragraph 2 of the article (introduced
when the Constitution was amended) provides that the law should
stipulate the duties and, responsibilities of holders of political
office, list posts which they may not hold simultaneously, and specify
their rights, privileges and immunities.
183. Under article 133, the President of the
Republic is answerable before the Supreme Court for offences committed
in the performance of his duties. It is the duty of the Assembly
of the Republic to initiate proceedings in respect of such offences,
and conviction entails dismissal from office and deprivation of
the right to be re-elected. After the end of his term of office,
the President is answerable before the ordinary courts for offences
not committed in the performance of his duties.
184. Deputies have no civil, criminal or disciplinary
liability for the votes they cast and the opinions they express
in the performance of their duties, and may not be detained or arrested
without the authorization of the Assembly, except for a crime punishable
by a major sentence when caught in flagrante delicto (art. 160,
paras. 1 and 2). If criminal proceedings are instituted against
a deputy and he or she is indicted or similarly charged, the Assembly
decides whether or not he or she should be suspended to enable the
proceedings to take their course (para. 3).
185. If court proceedings are instituted against
a member of the Government (art. 199) and he or she is indicted,
except in the case of a serious offence, the Assembly of the Republic
decides whether he or she should be suspended to enable the proceedings
to take their course.
186. Judges may not be held liable for their
decisions, except as provided for by law (art. 221). The status
of judges is analysed in greater detail under article 14.
187. In this regard mention should be made of
the fact that Act No. 4/83 of 2 April lays down that the property
of holders of public offices shall be subject to public scrutiny,
and that they must lodge a declaration of assets and income (see
also Decree No. 74/83 of 6 October), while Act No. 4/85 of 9 April
Provides that they should be remunerated.
Responsibility of the staff of the administrative
188. Article 266 of the Constitution provides
"1. The public administrative authorities
shall seek to promote the public interest, while observing the individual
rights and interests protected by law.
"2. The organs and staff of the administrative
authorities shall be subject to the Constitution and the law, and
shall perform their duties fairly and impartially."
189. Officials and staff of the State are liable
to civil, criminal or disciplinary proceedings in respect of actions
and omissions which result in infringements of those individual
rights or interests that are protected by law (art. 271).
190. New disciplinary regulations were issued
under Decree-Law No. 24/84 of 16 January. Like the former regulations,
they stipulate that officials or staff who neglect their duty to
be impartial in the performance of their tasks are liable to suspension
(art. 25, para. 2 (c)), and that those who commit acts which are
manifestly prejudicial to the institutions and principles Protected
by the Constitution are laible to compulsory retirement and dismissal.
The citizen's safeguards in respect of the administrative
191. Under article 268 of the Constitution,
"1. Citizens shall be entitled to be informed
by the administrative authorities, whenever they so wish, concerning
the status of matters which directly concern them and decisions
taken on those matters.
"2. Administrative decisions with public
effects shall be notified to the interested parties, when they are
not published officially. They must be properly substantiated when
they affect the legally Protected rights or interests of citizens.
"3. All interested parties shall have the
right to lodge an appeal against any unlawful final and enforceable
administrative decision, regardless of its form, and to obtain recognition
of a legally protected right or interest."
192. In other words, this article lays down
the right of citizens to Information on the status of matters which
concern them and decisions taken on those matters; the right to
be made aware of such decisions, through official notification or
publication, as well as the grounds for them where they affect legally
protected rights and interests; and the right to appeal against
an unlawful administrative decision or for the recognition of a
legally protected right or interest.
193. Decree-Law No. 256-A/77, of 17 June, which
was mentioned in the initial report and remains in force, is of
particular interest in this regard. The decree-law requires the
substantiation, by means of a brief statement of the factual and
legal reasons therefor, of any administrative decision which:
(a) Denies, extinguishes, restricts or in any
way affects rights, or imposes or makes more severe duties, responsibilities
(b) Affects, in a similar manner and as a result
of the exercise of discretionary powers, legally protected interests;
(c) Sets forth a decision On a claim or an appeal;
(d) Decides against a claim or argument put
forward by the person concerned, or against an opinion, inquiry
or official proposal;
(e) Sets forth a decision at variance with the
practice usually followed in the settlement of similar cases or
in the interpretation and application of the same provisions of
(f) Implies the revocation, amendment or suspension
of a previous administrative decision.
194. Very recently, in resolution No. 6/87,
issued on 29 January, the Government approved a set of rules for
adoption by the administrative services, relating to reception facilities
for the public and written administrative communications of a non-internal
nature. The introduction to the resolution points to an attempt
to personalize the public administration and humanize its relations
with its users and those subject to the administration in general.
Reception facilities for the public
195. Personnel assigned to these reception facilities
must be properly identified and must be fully familiar with the
structure and functions of the department, so that they can provide
information and direct the public to the appropriate sections. These
reception facilities must ensure the distribution of information
sheets on the matters dealt with by the departments, and the steps
individuals must take to comply with the relevant procedures. They
may even inform an individual, on request, of the steps taken in
his or her case.
196. For complex issues, the reception services
may dispatch staff with a special responsibility for assisting interested
parties to draft requests or complete forms.
Written administrative communications
197. Each written administrative communication
must mention the name, address and telephone number of the department
concerned, identifying the official or member of staff signing the
communication and his or her title. Communications addressed to
individuals must be drafted clearly, concisely and objectively,
and an effort must be made never to use technical language.
198. If reference is made to provisions which
set out rules or to administration circulars, the part which is
important for pursuing or settling the matter must if possible be
reproduced, or a photocopy attached.
199. When it is necessary to call a person to
an administrative office, he or she must be told of the purpose
of the meeting, and must be given priority at the time of attendance.
200. Efforts to combat corruption within the
public services led the Government to Day very special attention
to relations between the administrative authorities and the public.
201. A high authority was set up under Decree-Law
No. 369/83 of 6 October, entrusted with the task of preventing corrupt
and fraudulent activities. Act No. 45/86 of 1 October subsequently
laid down new legal arrangements designed to bring the status of
the authority into line with the objectives being pursued.
202. The principal features of these arrangements
are as follows:
(a) Direct reporting by the high authority to
the Assembly of the Republic (art. 1), and election by a two-thirds
majority of Assembly members in office (arts. 1 and 2).
(b) Complete independence in the performance
of its duties and strict respect for the Constitution and the law,
in upholding the public interest and national dignity (art. 4);
(c) New arrangements for putting into effect
the duty of official public bodies to co-operate, particularly those
having powers of judicial or police investigation, inquiry or inspection
(arts. 5 and 6). This special duty to co-operate gives rise to a
right, on the part of the high authority, to have access to documents
and other items of information, the setting aside of the principle
of banking secrecy and the duty to co-operate with the high authority
for all citizens and all bodies not enjoying express protection
under the Constitution or the law. An exception is made for information
constituting a State secret;
(d) Acts and transactions relating to the procedures
pursued by the high authority are subject:
(i) To the limitations deriving from the protection
of citizens' fundamental rights as regards the collection of evidence;
(ii) To the principle that the persons concerned
must be heard, except where they may be indicted in criminal proceedings
and where cases are closed, if the person concerned has not asked
to be heard.
203. Decree-law No. 370/83 of 6 October specifies
a number of measures for the realization of the principle of impartiality
in the work of the public administrative authorities, in accordance
with article 267, paragraph 2, of the Constitution:
"2. The organs and staff of the administrative
authorities shall be subject to the Constitution and the law, and
shall perform their duties fairly and impartially."
204. The Decree-Law deals with impediments to
certain administrative decisions or public law contracts, particularly
where the head of a department of the central, regional or local
administration or a public institution or enterprise has a personal
interest in the decision or contract. These principles also apply
where the interested party is the spouse or a relative of the person
concerned or a person with whom he or she is living in the same
205. Decisions taken or contracts entered into
in violation of these principles are subject to the provisions of
the law concerning nullity.
206. Decree-Law No. 371/83 of 6 October extended
the coverage of the criminal law beyond the definition of offences
laid down in the Penal Code to encompass the performance of duties
which are similar (from the viewpoint of criminal policy) to those
of public officials, and also to the categories stipulated in the
law as regards personally acquired or non-inherited assets.
207. The definition of a public official for
the purposes of the criminal law appears in article 437 of the Penal
Code, as supplemented by the definition appearing in article 4,
paragraph 2, of Decree-Law No. 371/83, concerning the consequences
arising from that instrument and the articles of the Code concerning
the offences of corruption (arts. 420 et seg.), embezzlement (arts.
421 et seg.), misuse of authority (arts. 428 et seg.), breach of
secrecy (arts. 433 et seg.) and abandonment of post (art. 436).
208. Serious and flagrant breach of duty may
entail the penalty of dismissal under article 66 of the Code (art.
7 of Decree-Law No. 371/83). Attempted breaches will always be punished,
regardless of the severity of the punishment prescribed in Decree-Law
No. 371/83 (art. 6).
The administrative courts
209. The Act on procedure in administrative
courts was recently approved by Decree-Law No. 267/85 of 16 July.
This instrument was adopted in pursuance of the applicable constitutional
principles, specifically article 268 concerning rights and safeguards
in respect of the administrative authorities.
210. In the words of its introduction, the instrument
seeks to devise a balanced system of remedies which, without calling
into question the public interest as pursued by the administrative
authorities, provides citizens with effective protection of their
legally protected rights and interests.
211. This piece of legislation introduced new
procedures, such as the declarations of regulations as illegal or
the recognition of legally protected rights or interests. Accordingly,
any rule issued in the performance of administrative functions may
be declared unlawful (art. 66), either at the request of a person
who considers himself or herself to have been injured by its application
(art. 63), or by the Public Prosecutor's Department.
212. It should be recalled that, under article
224 of the Constitution, it is the Department's task to uphold democratic
legality and the interests laid down in the law:
"1. The Public Prosecutor's Department
shall be competent to represent the State, initiate criminal proceedings
and defend democratic legality and the interests stipulated in the
"2. The Department shall have independent
213. It is also Possible for persons who claim
to be the holders of legally protected rights or interests to initiate
proceedings for the recognition of such a rights or interests (art.
69 et seq.). Such proceedings are initiated when other remedies
have failed to secure effective respect for a court decision, right
214. Under article 83, in order to Permit recourse
to administrative or legal remedies, the public authorities must
facilitate the examination of documents or Procedures and the issue
of copies of official documents, at the request of the interested
party or the Public Prosecutor's Department except where the matter
is confidential or secret, in other words, where discretion is necessary
in the public interest - specifically in matters of national defence,
internal security and foreign policy, or for the Protection of citizens'
fundamental rights, particularly the right to respect for private
and family life. Following a period of notice of 10 days, the applicant
may request the appropriate administrative court to order the authority
to accede to his or her request.
215. In the event of a breach, or feared breach,
of administrative law, the Public Prosecutor's Department or those
for whom the breach involves an injury which merits the intervention
of the law may request the administrative court to order the adoption
or avoidance of specific conduct in order to ensure that the rules
are applied (art. 86).
216. The Act concerning procedure even specifies
emergency procedures which are valid during the legal vacations.
Specific mention is made of orders to give access to or issue copies
of official documents, and orders to adopt a specific form of conduct.
Equal rights of men and women
217. As already pointed out on several occasions,
the Constitution lays down the principle of equality under which
all citizens possess the same dignity and are equal before the law
and no discrimination may be made specifically on the grounds of
sex. The text of the Constitution provides several examples of this
concern when it speaks of "the right to found a family and
marry on terms of complete equality" (art. 36, para. 1); of
"equality of opportunity in the choice of occupation or type
of work and conditions to ensure that access to any post, work or
professional category" is not "prohibited or restricted
by reason of a person's sex" (art. 59, para. 3 (b); of the
rights of workers without any distinction as to sex, and remuneration
on the principle of "equal pay for equal work" (art. 60,
218. Moreover, on 30 July 1980 Portugal ratified
the Convention on the Elimination of All Forms of Discrimination
against Women. Portugal has submitted the reports provided for under
article 18 of the Convention (see CEDAW/C/5/Add.21 and Corr.1 and
219. Ordinary law has endeavoured to incorporate
the above-mentioned constitutional principles:
(a) Decree-Law No. 392/79 of 20 September defined
the legal frame of application for the principle of non-discrimination
in access to employment, vocational training and working conditions
(see E/1984/6/Add.16, relating to the implementation of the International
Covenant on Economic, Social and Cultural Rights, articles 6 to
9, article 6 "Choice of employment").
Pursuant to the Decree-Law, the Commission on Equality in Employment
(CITE) was set up. It is made up of government, trade union and
employers' representatives and is in particular responsible for
recommending the adoption of legislative, regulatory or administrative
measures, for promoting the preparation of studies and disseminating
the objectives of Decree-Law No. 392/79 and publicizing cases of
violation of the rules thereof;
(b) The nationality Act, No. 37/81 of 3 October,
established equal rights for men and women (discussed in connection
with article 24);
(c) Decree-Law No. 303/83 of 28 June, relating
to advertising, laid down a number of principles, including equality,
by prohibiting any form of sexual discrimination;
(d) Act No. 4/84 of 11 May, relating to maternity
and paternity protection, and Decree-Laws Nos. 135/85 and 136/85,
implementing the Act, now represent the legal framework for maternity
protection and unify maternity legislation, which was previously
set out in a number of laws. The Act implements the principles embodied
in article 68 of the Constitution as amended on 30 September 1982
subsequent to the amendment of the Constitution voted on 12 August
(e) Article 8 of Decree-Law No. 491/85 of 26
November prohibits discrimination on the grounds of sex by laying
down the punishment of a coima (monetary administrative penalty)
for anyone who publishes or announces offers of employment that
contain sexually discriminatory restrictions, specifications or
(f) The new Penal Code in 1982 which establishes
equal treatment for men and women also displays deep concern to
provide women with adequate protection. By way of example we could
mention the following provisions: article 153, concerning ill-treatment
of pregnant women (para. 2);
Article 197, paragraph 2, concerning
the payment of alimony to pregnant women; article 198, relating
to material support by the man who has made a woman pregnant; the
section on sexual offences (art. 201 et seq.).
220. The Assembly of the Republic recently devoted
a session to the present situation of women in Portugal, in celebration
of International Women's Year. After a discussion of women's problems
in access to work, training, teaching, and in regard to family violence,
emphasis was placed on the need to contribute to changing outlooks
in order for equality to become a reality not merely on the legislative
level, but also in practice.
221. Some of the conclusions in the report submitted
at that session by the Parliamentary Commission on the Status of
Women are set out below:
(a) Portuguese women are still the victims of
deep-rooted discrimination in various areas of political life, particularly
at the higher levels in bodies formed by political parties and institutions;
(b) It is necessary to pay heed to the problems
of equality, with a view to achieving the constitutional principle
of equal rights and opportunities for men and women;
(c) The Commission on Equality in Employment
(CITE) and the governmental Commission on the Status of Women are
introducing effective measures to combat discrimination and to defend
and ensure the implementation and dissemination of the laws;
(d) Campaigns have to be conducted to publicize
women's rights, particularly on radio and television.
Derogations from obligations
under the Covenant
221. Under article 19 of the Constitution:
"1. The organs of supreme authority may
not, jointly or separately, suspend the exercise of rights, freedoms
and safeguards except in the case of a state of siege or emergency
declared in the manner laid down in the Constitution.
"2. A state of siege or emergency may be
declared in all or part of the national territory only in cases
of actual or imminent aggression by foreign forces, serious threat
to or disturbance of the democratic constitutional order or public
"3. The declaration of a state of siege
or emergency shall be adequately substantiated and shall specify
the rights, freedoms and safeguards whose exercise is to be suspended.
It shall be in force for no more than 15 days, although it may be
renewed for one or several periods of the same duration.
"4. The declaration of a state of siege
shall in no circumstances affect the right to life, personal integrity
and identity, civil capacity and citizenship, the non-retroactive
nature of criminal law, the right of accused persons to defence
and freedom of conscience and religion.
"5. The declaration of a state of emergency
shall at most entail the partial suspension of rights, freedoms
"6. The declaration of a state of siege
or emergency shall empower the authorities to take the necessary
steps for the prompt restoration of constitutional normality."
223. The states of "emergency" provided
for under the Constitution are marked by actual serious danger to
the existence of the State and the security and the organization
of the community-danger which can only be eliminated by exceptional
224. A state of siege and a state of emergency
are covered by the same articles of the Constitution (art. 137,
para. 1 (c), and art. 141); they are subject to similar time and
material limits (art. 19, para. 3).
225. A declaration of a state of emergency is
tightly controlled by the Constitution so as to avert any possibility
of its being declared without justification or being abused. Thus,
the President of the Republic is responsible for declaring a state
of siege or emergency (Constitution, art. 137, para. 1 (c)) after
"consulting the Government and obtaining authorization from
the Assembly of the Republic" (Constitution, art. 141) which
will supervise the application of the declaration (art. 165).
226. Furthermore, the President of the Republic
may not dissolve the Assembly while a state of siege or emergency
is in force (art. 175) and the Constitution may not be amended (art.
227. Suspension of the exercise of fundamental
rights on account of a declaration of a state of siege or emergency
does not affect the "principle of prohibition of excess";
i.e. a state of emergency will be declared only when it proves necessary
and is appropriate to overcome the dangers covered by the Constitution;
a state of siege will be decreed only when the state of emergency
has proved insufficient; the suspension will concern only those
rights, freedoms and safeguards whose exercise threatens the objectives
of the state of emergency and the state of emergency will last only
as long as the dangers covered by the Constitution persist.
228. Certain rights may not be suspended (art.
19, para. 4). These are the rights concerning the fundamental values
of the individual - life, integrity, security and freedom of conscience
- and the rights of accused persons to a defence.
229. The Constitution covers a number of aspects
of a state of emergency. It provides for additional laws to be passed
under certain conditions. The Assembly of the Republic alone may
pass legislation on the matter (absolute legislative powers), pursuant
to article 167 (c) of the Constitution.
Act No. 44/86 of 30 September
230. Quite recently, the Assembly of the Republic
adopted Act No. 44/86, published on 30 September, which laid down
the régime for a state of siege and a state of emergency.
Pursuant to the Constitution they may be declared only in cases
of actual or imminent aggression by foreign forces, serious threat
to or disturbance of the democratic constitutional order or public
calamity (art. 1).
231. A declaration of a state of siege or of
emergency may in no circumstances affect the right to life, personal
integrity and identity, civil capacity and citizenship, the principle
that criminal law cannot be retroactive, the right of accused persons
to a defence, and freedom of conscience and religion (art. 2, para.
232. Suspension of the exercise of rights, freedoms
and safeguards must always observe the principle of equality and
non-discrimination and respect the following principles:
(a) Restricted residence or detention of individuals
on the grounds of violation of security regulations must always
be referred to the competent examining magistrate within 24 hours,
and the right of habeas corpus in particular is guaranteed;
(b) Searches and the collection of evidence
by various means must be subject to an official report transmitted
to the examining magistrate, together with a report on the reasons
and the results;
(c) If the movement of persons or vehicles is
restricted or prohibited, the authorities must provide the necessary
means for enforcing the declaration, particularly in regard to the
transport, housing and maintenance of the persons affected;
(d) All types of publications, radio or television
broadcasts, cinema and theatrical presentations may be suspended,
and publications ordered to be seized;
(e) Meetings of the statutory bodies of political
parties, trade unions and occupational associations will in no circumstances
be prohibited, dissolved or subject to prior authorization.
233. It is important to stress that pursuant
to article 2, paragraph 3, if someone's rights, freedoms and safeguards
have been violated by the declaration of a state of siege or emergency
or by any unconstitutional or illegal measure taken while it was
in force, a right to compensation applies.
234. As to scope, duration and means, the suspension
or restriction of rights, freedoms and safeguards must be limited
to the strict minimum required for prompt restoration of constitutional
normality. The period may not exceed 15 days, although it may be
extended for one or two further periods of the same duration if
the reasons persist.
235. In no circumstances may the declaration
affect the application of the constitutional rules concerning the
competence and operation of organs of sovereignty.
236. A state of siege or emergency may be declared
in all or part of Portuquese territory, depending on the geographical
area affected by the relevant circumstances.
237. During the state of siege or emergency
persons retain full right of access to the courts to defend rights,
freedoms and safeguards which have been undermined or jeopardized
by any unconstitutional or illegal measure (art. 6).
238. A state of siege is declared whenever there
is an actual or imminent act of force or insurrection which threatens
the country's sovereignty, independence, territorial integrity or
democratic constitutional order and which it is not possible to,
remove by the normal means provided for in the Constitution and
the law. Once a state of siege has been declared the civil authorities
shall be subject to the military authorities or replaced by them
239. A state of emergency is declared in less
serious circumstances, in particular when there is a threat of or
an actual public calamity. The exercise of rights shall be suspended
only in part; the powers of the civil administrative authorities
may be reinforced and they may be given support by the armed forces
240. A state of siege or emergency shall be
declared by the President of the Republic and shall require authorization
from the Assembly of the Republic (art. 10).
241. Once the circumstances leading to the declaration
have ended, the state of siege or emergency will immediately be
abrogated by a decree from the President of the Republic, countersigned
by the Government.
242. The declaration shall contain the following
elements, clearly and specifically defined:
(a) Definition of and grounds for the state
(b) Territorial coverage;
(d) Specification of the rights, freedoms and
safeguards whose exercise is suspended or restricted;
(e) Definition, under a state of siege, of the
powers vested in the military authorities;
(f) Definition, under a state of emergency,
of the extent to which the powers of the civil administrative authorities
are reinforced and, where necessary, given support by the armed
(g) Definition of the crimes subject to the
jurisdiction of the military courts.
243. The Government shall ensure the implementation
of the declaration of the state of siege or emergency and inform
the President of the Republic and the Assembly of the Republic of
the relevant acts (art. 17).
244. Under a state of siege or emerqency covering
the whole of Portuguese territory, the Higher Council of National
Defence shall be permanently convened.
245. The Office of the Government Attorney and
the department of the Provedor de Justiça (Ombudsman) shall
also meet permanently, since the defence of democratic legality
and citizens' rights falls within their Purview (art. 18).
246. The military courts shall be responsible
for investigating and trying infringements of the declaration, as
well as offences committed wilfully and directly in connection with
the causes of the state of siege and while it is in force, namely
offences against the life, physical integrity and the freedom of
individuals, the right to information, security of communications,
property and public order. Such offences are dealt with essentially
as military offences (art. 22).
247. During states of emerqency the civil courts
fully exercise their powers and functions, pursuant to article 22.
In particular, they are responsible for ensuring observance of the
constitutional and legal rules governing states of siege and emergency
248. This is all an emergency procedure. Within
a period of 15 days after the lifting of the state of siege or emergency
or, if the declaration has been renewed, 15 days after the end of
each period, the Government shall submit to the Assembly of the
Republic a detailed and as carefully documented report as possible
on the steps and measures taken while the declaration was in force.
249. The Assembly of the Republic shall examine
the implementation of the relevant declaration and indicate the
requisite steps regarding civil and criminal responsibility for
violations of the provisions of the declaration of the state of
siege or emergency (art. 29).
The right to engaqe in any activity
or perform any act aimed
at the destruction of rights and freedoms
250. Under article 16 of the Constitution:
"1. The fundamental riqhts embodied in
the Constitution shall not exclude other riqhts resultinq from the
laws and applicable rules of international law.
2. The provisions of the Constitution and laws
relatinq to fundamental riqhts shall be interpreted and avp
lied in accordance with the Universal Declaration of Human Riqhts."
251. Furthermore, the system of riqhts, freedoms
and safequards is applicable to those set out under title II of
the Constitution, relating to rights, freedoms and safeguards and
other similar fundamental rights (art. 17).
252. Moreover, Portugal has ratified the European
Convention on Human Rights, in which article 17 stipulates that
nothing in the Convention may be interpreted as implying for any
State, group or Person any right to engage in any activity or perform
any act aimed at the destruction of the rights and freedoms set
forth therein or at their limitation to a greater extent than is
provided for in the Convention.
253. As already pointed out, under article 8
of the Constitution, rules from duly ratified or approved international
conventions enter into force following official publication of the
conventions. The constitutional provisions relating to rights, freedoms
and safeguards are directly applicable and binding on public and
private bodies (Constitution, art. 18).
The right to life
254. The right to life is expressly recognized
by the Constitution of the Republic (art. 24).
255. In its initial report, Portugal had already
mentioned the abolition of the death penalty. It is, however, worth
drawing attention to the evolution of abolitionism.
256. The death penalty for theft and homicide
was abolished by decrees dated 12 December 1801 and 11 January 1802.
257. The supplementary Act to the 1852 Constitutional
Charter abolished the death penalty for political crimes.
258. The 1852 Penal Code laid down the death
penalty only for civil crimes involving treason.
259. On 1 July 1867 the death penalty was abolished
for all civil crimes.
260. The Decree of 16 March 1911 abolished the
death penalty for military crimes. The abolition was confirmed by
the 1911 Constitution (art. 3, para. 22).
261. In 1916, the death penalty was restored
only for certain war crimes committed on the field of operations,
and confirmed by the Code of Military Justice and the 1933 Constitution.
262. The death penalty was completely abolished
by the 1976 Constitution, adopted after the Revolution of 25 April
263. It is nevertheless worthwhile mentioning
that the last execution for a political crime took place in 1834
and for a civil crime in 1772. Only one execution took place for
a military crime followinq the restoration of the death penalty
in 1916 and it was for espionage.
264. The last execution of a woman took place
Protection of life
265. On account of the absolute protection of
the right to life, no one may be deprived of life, even after a
declaration of a state of siege or emergency (Constitution, art.
19 maxime, para. 4).
266. Act N.º 44/86 of 30 September defines
the legal scope of states of siege and emergency and prohibits any
restriction whatsoever on the right to life (art. 1).
267. Furthermore, the Constitution prohibits
extradition for crimes punishable by the death penalty under the
law of the applicant State.
268. The law on extradition, Decree-Law N.º
437/75 of 16 August, also prohibits extradition if the crime carries
a life sentence and if no provision is made to replace that penalty
269. Portugal ratified the European Convention
on the Suppression of Terrorism in Act N.º 19/81 of 18 Auqust,
but entered a reservation concerning extradition for crimes punishable
by the death penalty or by a life sentence under the law of the
applicant State (art. 2).
270. Accordingly, the Portuquese Parliament
approved for ratification Protocol N.º 6 to the Convention
for the Protection of Human Rights and Fundamental Freedoms Concerning
the Abolition of the Death Penalty (Decision N.º 12/86 of 6
June, published in the Diário da República, N.º
129, Series I, dated 6 June 1986). The Protocol was ratified on
2 October 1986.
Protection of life before birth
271. Abortion is generally punishable under
article 139 of the Penal Code.
272. Act N.º 6/87 of 11 May nevertheless
amended the wording of articles 139 to 141 of the Penal Code so
as to make abortion no longer illegal in cases covered by article
140, provided the conditions set out therein and the formalities
laid down by article 141 for obtaining consent or determining cases
in which consent is not required are met.
273. Abortion is not considered illegal when
it is carried out for the following reasons: on therapeutic grounds,
when it is the sole means of removing a danger of death or serious
and irreversible harm to the body or physical and mental health
of the woman, in which case it may be carried out at any time (art.
140, para. 1 (a)); on prophylactic grounds ? to avert a danger of
death or serious and lasting harm to the body or physical and mental
health of the woman, in which case it is possible during the first
12 weeks of preqnancy (art. 140, para. 1 (b)); on eugenic grounds,
when there is a danger of malformation or serious and incurable
illness which could affect the child, in which case it is possible
during the first 16 weeks of pregnancy (art. 140, para. 1 (c)),
and on criminal qrounds, also known as sentimental grounds, when
the pregnancy is the result of a rape in which case it is possible
during the first 12 weeks of pregnancy (art. 140, para. 1 (d)).
274. In a decision concerning the compatibility
of articles 140 and 141 of Act N.º 6/84 with the Constitution,
the Constitutional Court's view was in the affirmative and it did
not declare them to be unconstitutional (Decision N.º 85/85
of 25 June, published in the Diário da República,
N.º 143, Series II).
275. Quite recently the department of the Minister
of Justice set up a Commission on the legal framework for new medical
technologies and instructed it to analyse the problems raised by
the modern techniques of artifical insemination and of life support
systems, in the light of ethical values.
276. Title II of the Penal Code incorporates
crimes aqainst humanity (chap. Il) and includes the crimes of qenocide
and racial discrimination (art. 198).
"1. Anyone who commits one or more of the
'following acts with intent to destroy, in whole or in oart, a national,
ethnic, racial, religious or social community or group:
(a) Killinq members of the community or group;
(b) Causinq serious bodily or mental harm to
members of the community or group;
(c) Inflictinq on the community or qroup inhuman
livinq conditions or treatment likely to bring about the destruction
of the community or grouo;
(d) Forcibly transferrinq children to another
community or group;
shall be liable to a prison sentence of 10 to 25 years.
"2. Anyone who, at a public meetinq, by
the dissemination of written material or by use of any of the mass
(a) Slanders, libels or insults an individual
or group of individuals or subjects them to iDublic scorn on account
of theirrace, colour or ethnic origin;
(b) Provokes acts of violence against an individual
or group of individuals of another race, colour or ethnic origin;
shall be liable to a prison sentence of five years.
"3. Anyone who:
(a) Founds or joins orqanizations or undertakes
activities of orqanized Dropaqanda incitinq to racial discrimination,
hatred or violence or encouraginq them;
(b) Participates in the organizations or activities
specified in the foregoing paragraphs or assists racist activities,
including the financing thereof;
shall be liable to a prison sentence of two to eight years.
Assistance in suicide
277. Assistance in suicide is punishable on
two counts: providing assistance or instigating suicide (Penal Code,
art. 135). Article 134 deals with homicide committed at the request
of the victim.
278. Article 135 specifically covers those cases
where the recipient of assistance is under 16, when he or she is
not legally responsible or is not capable of defending him or herself.
279. Articles 137 and 138 respectively concern
qualified infanticide and neglect or exposure of a person to circumstances
which endanger his or her life.
Suppression of terrorism
280. As bas already been mentioned, Portugal
ratified the European Convention on the Suppression of Terrorism,
which is consequently in force under Portuguese law (Constitution,
art. 8, para. 2).
281. Terrorism is covered by the Penal Code,
which stipulates heavy sentences for crimes involving terrorism
(art. 289) or committed by terrorist organizations (art. 288).
282. The issue of compensation for the victims
of terrorist acts bas been taken into consideration by the authorities
on account of the increase in the number of terrorist acts affecting
283. Decree-Law N.º 324/85 of 6 August
deals with the case-by-case award, subject to a decision by the
Council of Ministers, of compensation to public servants, whether
civilian or military, whenever they have been the victims of a terrorist
act in the performance of their duties or on account thereof, if
the act in question bas affected their life or physical integrity,
freedom or valuable property (art. 1, para. 1). Such compensation
may also be awarded to family members or dependents of public servants
who have been victims of the criminal act (art. 1, para. 2).
284. The justification for a claim will always
be subject to an examination ordered by the member of the Government
in charge of the appropriate plenistry (art. 2).
Other provisions of the Portuguese Penal Code
285. Crimes connected with lethal and highly
dangerous products are covered by section III of the Penal Code
(offences against the values and interests of the community). Chapter
III concerns offences involving ordinary dangers, such as fires,
explosions or exposure to radiation (art. 253 et seq.). Article
260 concerns arms, ammunitions and explosives.
286. Chapter III also deals with health of fences
(art. 269 et seq.), including water pollution and poisoning.
287. Chapter IV deals with crimes with threat
communications (art. 277 et seq.).
288. Finally, chapter V deals with offences
against public order and peace (art. 285 et seq.) and articles 288
and 289 concern terrorist acts or offences committed by terrorist
289. In 1971 Portugal ratified the 1961 Single
Convention on Narcotic Drugs and acceded to the 1971 Convention
on Psychotropic Substances. Systematic legislation on the subject
proved necessary and this was done by means of Decree-Law N.º
430/83 of 13 December, under which:
(a) The Office for Planning and Co-ordination
to Combat Drugs is responsible for ensuring fulfilment of the commitments
arising out of the Conventions (art. 5 and art. 22, para. 1);
(b) Control over the illegal sale of narcotics
has been reinforced, in particular in the case of phsychotropic
(c) Punishment for drug trafficking has been
altered and procedural measures for fuller investigations have been
strengthened. The judicial police have been given sole responsibility
for carrying out criminal investigations into drug trafficking;
(d) Legislation has been passed for the treatment,
cure and reintegration of drug addicts. Voluntary acceptance of
treatment by a drug addict is duly taken into account on sentencing.
Penal action may be waived in the case of non-habitual consumption
for first-time offenders who are under 21 and promise the court
not to offend again;
(e) The special penal provisions for young people
between 16 and 21 have been maintained.
(f) Measures have been taken to co-ordinate
the activities of existing institutions with similar objectives,
such as the Office for Planning and Co-ordination to Combat Drugs
(Decree-Law N.º 365/82 of 8 September), the Centre for Studies
into the Prevention of Drug Abuse (Decree-Law N.º 791/76 of
5 November) and the Institute for Social Reintegration (Decree-Law
N.º 204/83 of 20 May);
(g) Statutory Order N.º 71/84 of 7 September
regulated systematic measures against the trafficking and use of
narcotics and psychotropic substances. It specifies those cases
in which, although they are subject to controls, the cultivation,
manufacture, import, distribution, export and possession of narcotics
and psychotropic substances may be authorized (art. 4). Authorization
will be given by the Department of Pharmaceutical Affairs, provided
the use of narcotics and psychotropic substances is for medical,
scientific or teaching purposes only. Furthermore, the Decree prohibits
the advertising of narcotics and psychotropic substances (art. 39)
and stipulates that spot checks may be made in firms which possess
narcotics or psychotropic substances. The fairly loose penalty introduced
by the 1982 Penal Code applies to delinquents who abuse narcotics
(Penal Code art. 86 et seq.).
Prevention of addiction to smoking
290. Legislation covering addiction to tobacco
is contained in Act N.º 28/82 of 17 Auqust, supplemented by
Decree-Law N.º 226/83 of 27 May, which prohibits both tobacco
advertising (art. 2) and smoking in certain places, generally health
establishments, places where minors are present, teaching premises
and restricted spaces (art. 3).
291. General criminal law establishes fairly
loose sentences for habitual alcoholics or those who show a propensity
to alcohol abuse (Penal Code art. 86 et seq.).
292. Article 278 of the special section makes
it an offence to drive or pilot any means of transport, on land,
sea or air, if one is not in a fit state to do so and if doing so
will endanger the life, physical integrity or valuable property
of another person. Act N.º 3/82 of 29 March makes it an offence
to drive under the influence of alcohol and provides for withdrawal
of the offenders driving licence and prohibits substitution of the
prison sentence by a fine or by a suspended sentence if he has caused
the death of, or serious injury to, another person in an accident
293. Requlations covering advertisinq are laid
down by Decree-Law N.º 303/83 of 28 June. Article 23, paragraph
5 prohibits children and young people from taking part in any advertising
for tobacco and alcohol. Failure to observe these prohibitions is
punishable by a fine.
Regulations concerninq the use of firearms
The use of firearms by the police
294. This is covered by articles 88 et seq.
of Decree-Law N.º 458/82 of 24 November, which establishes
the organic statutes of the judicial police and which was also analysed
in connection with article 7 of the Covenant. Mention may also be
made of Decree-Law N.º 364/83 of 28 September relating to the
control of firearms by the public safety police and Decree-Law N.º
465/83 of 31 December (art. 5, para. 18) concerning the National
Republican Guard (GNR).
295. Use of firearms by the police is subject
to the following principles and rules:
(a) Firearms must be used only as a last resort
(art. 88, para. 1);
(b) Their use must be justified by the circumstances
(art. 88, para. 1);
(c) The persons against whom it is intended
to, use firearms must be given a prompt and unambiguous warning
of that intention (art. 89);
(d) An obligation to provide wounded people
with prompt assistance (art. 90, para. 1);
(e) An obligation to make a written report on
the incident to one's superior, even if no injury or damage had
ensued (art. 90, para. 23);
(f) A prohibition on the use of firearms if
it involves danger to other Persons other than the policeman himself
and the criminals, except in the case of self-defence or state of
necessity (art. 88, para. 2).
296. By way of example, the law lists instances
in which firearms may be used.
Use of firearms by private individuals
297. Government Decree N.º 56/84 of 28
September approved for ratification the European Convention on the
Control of the Acquisition and Possession of Firearms by Individuals.
298. In Portuguese law, Decree-Law No. 7-A/75
of 17 April remains partly in force (see art. 1 and, regarding prohibited
arms, arts. 2 and 3). The import, manufacture, holding, purchase,
sale or transfer for any reason as well as the transport, possession,
use and carrying of firearms are punishable under article 260 of
the Penal Code.
Torture, cruel, inhuman or degrading
treatment or punishment
299. Article 25, paragraph 2, of the Constitution
guarantees protection against torture or cruel, degrading or inhuman
treatment or punishment. As to the safeguards provided by criminal
procedure, article 32, paragraph 6, of the Constitution makes similar
provisions and establishes that any evidence obtained through torture,
coercion, violation of the moral integrity or security of person
of the individual or other means shall be of no effect. Furthermore,
article 30 establishes that no one shall be subjected to a sentence
or security measure involving deprivation or restriction of freedom
for life or for an unlimited or indefinite term.
300. Article 412 of the Penal Code punishes
any official who, in criminal or disciplinary proceedings or proceedings
connected with an administrative offence resorts to violence, serious
threats or any other illegal means of constraint in order to obtain
a written or oral statement from the accused, informant, witness
or expert or to prevent them from making such a statement.
301. The constitutional principle in question
is also incorporated in the Code in regard to "offences against
the physical integrity of individuals" (art. 142 et seq.) and
"offences against the freedom of individuals", for example
threats (art. 155), coercion (art. 156), illegal confinement (art.
160) and the kidnapping of minors (art. 167) or others (art. 162).
302. The principle is also found in the law
on sexual offences. For example, article 209 of the Code makes it
an offence to have sexual relations with or to behave indecently
before detainees or persons in similar circumstances.
303. The same principle underlies offences against
the family, such as desertion of one's spouse and children in the
face of moral danger (art. 199).
The law on penal procedure
304. In addition to article 306 of the Code
of Penal Procedure regarding the prohibition on ill-treatment of
Prisoners, already quoted in Portugal's initial report, part II
of Decree-Law N.º 402/82 of 23 September sets out the general
conditions concerning the enforcement of sentences and security
"(...) Convicted persons shall be treated
so to protect their physical and mental health and to ensure their
reintegration in society" (art. 6).
305. Article 261 of the Code of Penal Procedure
prohibits the use of certain measures during the questioning of
accused persons, and specifically prohibits the use of violence,
ill-treatment, bodily harm or the use of cruel, fraudulent, hypnotic
or other means likely to weaken the accused's will or sense of judgement.
306. As to court witnesses, article 437 of the
Code empowers the president of the court to prohibit questions which
are suggestive, misleading, improper or vexatious.
307. Both of these texts are applicable until
the new Code of Penal Procedure comes into force.
308. The new Code of Penal Procedure prohibits
the use of evidence obtained by torture, coercion or, in general,
injury to the physical or mental integrity of individuals even with
their consent (art. 126, para. 1 and para. 2).
309. The above prohibition also concerns unauthorized
interference with privacy and the home or tamperinq with correspondence
or telecommunications (art. 126, para. 3).
310. Evidence obtained by these means is null
and void and may be used only in criminal proceedings against the
persons obtaining such evidence.
311. Article 6 of Decree-Law N.º 265/79
of 1 Auqust establishes that a detainee shall enter a prison out
of the sight of the other prisoners if it is necessary to protect
his privacy (para. 1).
312. Searching of detainees is regulated by
article 116. For example, a search must fully respect the detainees
personality and dignity (para. 2) and may be carried out only when
instruments of detection have failed (para. 4).
313. Article 125 requires that prior warning
be given when physical force is employed (new version of Decree-Law
N.º 49/80 of 22 March).
314. Article 126 lays down the qeneral rules
on the use of firearms by prison personnel or persons working in
prisons (the use of firearms is prohibited in detention centres
for young people under article 20 of Decree-Law N.º 90/83 of
16 February, which will be referred to below).
315. In all cases where force is used it must
be employed in proportion to the circumstances (art. 124) and restricted
to the minimum required to ensure safety and order (art. 122 et
seq.). Use of force is always followed by a written investigation
into the circumstances.
316. Provisions also cover the use of coercion
in health care. Pursuant to article 127, it is prohibited to oblige
a detainee to undergo medical examinations, treatment or feeding
unless his life or health is in danger. Such measures may only be
prescribed and applied under the supervision of a doctor.
317. The following special safety measures are
authorized: prohibition on the use, and confiscation, of certain
objects; observation of the prisoner during the niqht; isolation
of the prisoner from the prison population; elimination of, or restrictions
on, the time a prisoner spends outside; the use of handcuffs, if
necessary, under medical supervision; use of a special security
cell (art. 111). Such measures will be authorized if it is impossible
to prevent or remove the danger of escape or in the event of a serious
disturbance to the order and safety of the establishment.
318. The director of the establishment is responsible
for deciding on the application of these special security measures.
In the event of immediate danger the measures may be ordered by
his deputy, but a request must be made for them to be confirmed
as soon as possible.
319. Article 272 of the Constitution stipulates
that the police may act only in those cases and in accordance with
the rules laid down by the law and only as strictly necessary (para.
2). This rule has been followed in reqard to coercion by the public
safety police (Decree-Law N.º 151/85 of 9 May, art. 3).
320. Under Decree-Law N.º 458/82 of 24
November, it is the duty of the judicial police not to use torture,
inhuman, cruel or degrading treatment and not to carry out or to
ignore, if necessary, orders or instructions to apply such treatment
(art. 87, para. 1 (b)). Police officials who refuse to obey such
orders will not be disciplined (art. 87, para. 2).
321. This princiole is reflected in the orqanizational
or statutory laws relating to other police forces.
Medical or scientific experiments
322. Criminal law now lays down the legal provisions
concerning medical and surgical treatment and operations (Penal
Code, arts. 143, 148 to 150, 158 and 159).
323. Such acts are legal provided they satisfy
the following requirements:
(a) The operation must have been carried out
in accordance with professional practice and with the state of medical
knowledge and experience (art. 150, para. 1);
(b) The purpose of such an act must be to cure,
to prevent or to relieve suffering (art. 150, para. 1);
(c) Prior consent must have been obtained in
a valid and proper manner (arts. 38, 149, 159 and, in respect of
presumed consent, art. 39);
(d) Any ensuing injury must not offend common
decency (art. 149, paras. 1 and 2).
violation of the rules of professional conduct
may be prosecuted under art. 150 paragraph 2, of the Penal Code.
Arbitrary medical and surgical operations and treatment are specifically
dealt with by the provisions of article 158.
324. Apart from these provisions, the Penal
Code specifically covers:
Serious bodily harm, involving either serious
bodily injury or damage to health (art. 143);
(b) Artificial insemination without the consent
of the woman (article 214).
325. This matter may also be considered from
the standpoint of health offences, which are covered by articles
269 et seq. of the Penal Code. This is in particular the case of
articles 274 to 276 which respectively lay down penalties for the
examining doctor or his employee, the pharmacist or his employee
and the doctor responsible, either intentionally or through negligence,
for endangering the life, health or physical integrity of another
person by altering analyses, medical prescriptions or denying or
failing to provide medical assistance.
326. The removal of organs or tissue from deceased
persons, in particular for the purposes of a transplant or any other
major therapeutic purpose is in ali cases regulated by Decree-Law
N.º 533/76 of 13 July, which was mentioned previously in Portugal's
327. Problems have arisen in respect of the
definition in this Decree-Law of a criterion to determine whether
death has taken place, a criterion which is hard to reconcile with
the requirements for the removal of certain organs and tissue and
which may even involve criminal responsibility.
328. The issue was dealt with in depth in the
opinion given by the Office of the Attorney General of the Republic
and, published in the Diário da República, N.º
272, Series II, on 26 November 1985, namely, death as defined by
Decree-Law N.º 553/76 of 13 July signifies cerebral death.
Proper rules of medico-legal semiology must be observed in determining
death for the purposes of this text. Once death has been determined,
resuscitation techniques for the purposes of removing organs or
tissue under satisfactory conditions may be maintained or used on
329. Acknowledging that problems have come into
being as a result of the emergence of modern resuscitation techniques,
the Ministry of Justice has recently set up a commission to identify
the problems and put forward practical legal solutions (Decision
N.º 37/86 of the Minister of Justice, published in the Diário
da República, Series 11, 6 May 1986).
330. Decree-Law N.º 553/76 of 13 July raises
another type of issue in respect of consent for the removal of organs.
In law, the only ground for preventing the removal of tissues or
organs by doctors is the opposition of the deceased oerson himself.
Pursuant to an opinion of the Office of the Attorney General of
the Republic in 1952, the use of organs and tissue for therapeutic
purposes must have preference over the rights of family members
and friends in regard to the corpse.
331. Chapter II, concerning life and death,
deals with problems such as therapy involving a risk of miscarriage,
the obligation to refrain from using therapy when it has no hope
of succeeding, a decision to cut off life support systems, the removal
of organs from dead and living individuals, and artificial insemination
332. Chapter IV covers problems of experiments
on humans, and makes specific reference to safeguards and the ethical
limits to experiments.
333. Chapter I, article 44, stipulates that
when a doctor treating children, elderly or handicapped persons
or invalids finds that they have been the victims of cruelty, maltreatment
or other forms of suffering, he must take the appropriate measures
to ensure their protection, and in particular inform the police
or the relevant social services.
334. Chapter III specifically concerns ill-treatment
of patients in prisons. The general principle set out in article
56, paragraph 2, establishes the doctor's obligation to respect
under all circumstances the interest of the patient and his physical
integrity in accordance with the profession's code of practice,
which stipulates the following:
"1. In no circumstances must a doctor carry
out, collaborate in or accept the use of violence, torture or other
cruel, inhuman or degrading treatment, whatever offence the prisoner
or detainee may have committed or been accused of committing, including
states of siege, wars or civil conflicts".
The provisions include refusal to hand over
premises, instruments or medicines and refusal to communicate the
scientific knowledge in order to allow torture to be applied.
Slavery, servitude and forced
335. On 4 October 1927 Portugal ratified the
1926 Slavery Convention and on 10 August 1959 it ratified the Supplementary
Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery, adopted on 7 September 1956 in
Geneva. Consequently, these have for many years formed part of Portuguese
336. On 9 November 1978 Portugal ratified the
European Convention on Human Rights, in which article 4 stipulates
that "No one shall be held in slavery or servitude". As
it has signed the declaration provided for under article 25 of the
Convention, Portuqal accepts that, if anyone claiming to be the
victim of a violation of that right, a supranational body may assess
the value and consequences in accordance with the principles of
337. This shows that Portugal has adopted a
number of international legal instruments and that, pursuant to
article 8 of the Portugese Constitution, they are an integral part
of internal law, a fact which moreover illustrates the trend in
internal legislation. By a decree dated 10 December 1836 Portugal
banned the slave trade in its territory. Subsequently, in 1858,
slavery itself was abolished.
338. The Constitution makes no specific mention
of slavery or servitude. This in itself is no doubt a reflection
of the fact that both of these situations have long since disappeared
from Portuguse society. The Constitution provides a framework of
rights and safeguards which makes slavery and servitude impossible.
Reference has already been made of the inviolability of the physical
and moral integrity of citizens, their right to a personal identity,
the civil capacity, citizenship, freedom and security (see arts.
25 to 27).
339. The earlier Portuguese Penal Code, of 1886,
made no mention of slavery and servitude among the offences enumerated.
Only with the 1982 Penal Code, published in Decree-Law N.º
400/82 of 23 September, was a prison sentence of 8 to 15 years stipulated
for "anyone who reduces a person to the state or status of
slave". A similar sentence was established for anyone who transfers,
sells or purchases a human being or takes possession of a human
being in order to keep him in a state of slavery or servitude (art.
161). Illegal confinement (art. 160), the kidnapping of minors (art.
163) or others (art. 162) and trafficking in persons (art. 217)
are also offences under criminal law.
340. Article 60 of the Penal Code provides for
community service in place of a short-term prison sentence (para.
1). This means rendering free services which the court considers
to be of value to the community and which are given outside normal
working hours for the benefit of the State or for other bodies determined
by law (para. 2). This penalty may only be applied with the consent
of the offender.
341. If the convicted person is unable to work
for reasons beyond his control, the court may impose a fine or even
lift the sentence. Any convicted person who wilfully incapacitates
himself for work or refuses to work without justification is liable
342. The Penal Code provides for the replacement
of an unpaid fine by days of work. The law punishes whoever wilfully
renders himself unable to pay a fine either partly or in full or
unable to replace such payment by days of work.
343. Criminal law in the case of juveniles provides
for young people to be placed in reform centres (in this connection
see the initial report by Portugal on the application of articles
10 to 12 of the International Covenant on Economic, Social and Cultural
Rights, E/1980/6/Add.35/Rev.1 and E/1985/WG.1/SR.2). Under this
system which is regulated by Decree-Law N.o 90/83 of 16 February,
young people are kept busy in work, physical education, sport and
social and cultural activities.
344. Act No. 6/85 of 4 May provides for the
status of conscientious objector to military service, and makes
it compulsory to perform some form of civil service (see the observations
made in connection with art. 18).
Right to freedom and security
345. Article 27 of the Constitution, as reworded
in the first constitutional revision, takes account of the exceptions
to the general principle that "No one shall be deprived of
his freedom in whole or in part, except as the result of a court
judgement convicting him of an offence punishable under the law
by a prison sentence or as the result of the judicial application
of a security measure" (art. 27, para. 2).
346. Exceptions to this principle, for the periods
and on the conditions laid down by law are:
(a) Remand in custody where a person is caught
in flagrante delicto, or where there is strong evidence that he
has wilfully comitted an offence punishable by a major sentence;
(b) The arrest or detention of a person who
has unlawfully entered or stayed in Portuguese territory or against
whom extradition or deportation proceedings have been instituted;
(c) Disciplinary arrest of military personnel,
with the right of appeal to the competent court;
(d) Placing a minar in an appropriate institution,
for measures of protection, assistance or education as ordered by
the competent court;
(e) Detention by court order following failure
to comply with a court decision, or for the purpose of ensuring
appearance before the ccmpetent judicial authority.
347. Article 28 of the Constitution reads:
"l. Arrest without charge shall be subject
to a court order with in 48 hours confirming or continuing detention.
The court shall hear reasons for detention and shall inform the
prisoner, question him and give him the opportunity to defend himself.
2. Remand in custody shall not be continued if it can be replaced
by bail or by conditional release as provided for by law.
3. A court order requiring or extending a period of deprivation
of freedom shall be made known immediately to a relation of the
prisoner or to a person trusted and named by the prisoner.
4. Remand in custody, before and after the charge, shall be subject
to the time-limits laid down by law."
348. The law follows the provisions of the Constitution
closely in this matter.
The Code of Penal Procedure
349. In the existing procedural text, the subject
is dealt with mainly under articles 286 to 311, with modifications
introduced by Act N.º 25/81 of 21 August and by Decree-Law
N.º 402/82 of 23 September. As a rule, these provisions concern
detention to ensure appearance before the court and the form of
custody in which the prisoners may be placed.
350. Under article 286, remand in custody may
be authorized only in cases of flagrante delicto or in cases involving
a serious crime punishable by a major sentence. The other articles
concern conditions for arrest in flagrante delicto and after cases,
the conditions for remand in custody, including particulars as to
which authorities are competent to order it, the formal and substantive
conditions governing it, its treatment of prisoners, the time-limits
to be observed before and after the charge, appearance before the
court and holding persons incommunicado.
351. The accused may be conditionally released
if remand in custody can be replaced by other measures. The conditions
which determined remand in custody may be periodically re-assessed.
352. Article 91, paragraph 3, makes provision
for appearance sob custódia (under escort). The court may
use the police to compel, a person to appear if he has been absent
without reason from a hearing of which he has been duly notified.
The new Code of Penal Procedure
353. In the new Code, the way the matter is
treated has undergone systematic, terminological and substantive
Detention to ensure appearance before a magistrate or court
354. The law deals differently with remand in
custody, as a sentence of last resort (arts. 191 to 218); and arrest,
the purposes of which are set out in article 254:
(a) To bring the prisoner before a court within
48 hours after his arrest or within the same time-limit, before
the examining magistrate competent to carry out the initial judicial
inquiry and order remand in custody or bail;
(b) To bring the prisoner immediately before
a court for procedural purposes.
355. In the case of flagrante delicto punishable
by a prison sentence, arrest may be carried out by a judicial authority
or police body (art. 255, para. 1 (a)), or by any other person in
the absence of such authority or body and if it is not possible
for them to be summoned in time (art. 255, para. 1 (b)). If prosecution
of the offence is by private action, the offender need only be identified
(art. 255, para. 4).
356. If the person is not caught in flagrante
delicto, the court must always issue an arrest warrant. Nevertheless,
the Public Prosecutor's Department May order an arrest if remand
in custody is applicable (art. 257, para. 1); the criminal police
authorities may also order arrest if all the following conditions
(a) If remand in custody is admissible in the
case in question;
(b) There are grounds for fearing the person
(c) It is impossible, for reasons of urgency
and the risk of delay, to wait for the judicial authority to intervene.
The police bodies which have placed the person
under arrest are required immediately to inform the court or the
Public Prosecutor's Department, as appropriate.
Remand in custody in terms of measures of constraint and the general
principles under which such are applied
357. Measures of constraint are subject to the
principles of legality, suitability and proportionality. They may
not interfere with the exercise of those fundamental rights which
are not incompatible with the requirements of prevention in the
case in question.
358. Whether such measures are applied will
also always depend on whether the person has first been duly charged
(art. 191, para. 1).They may not be applied if there are good grounds
for believing there are causes entailing exemption from responsibility
or extinguishment of the criminal prosecution (art. 192, para. 2).
The measures shall always be applied by decision of the court, on
the request of the Public Prosecutor's Department, during the inquiry
and even routinely, following an inquiry, after hearing the Public
Prosecutor's Department (art. 194, para. 1).
359. It is worth mentioning the new measure,
introduced in the new Code of Penal Procedurer whereby the person
is required to remain at home or not to leave it without prior authorization.
It will not be applied unless there are strong grounds for believing
that there has been a serious offence punishable by a maximum prison
term of at least three years (art. 201).
General features of the systemi for remand in custody
360. First, remand in custody is clearly a measure
used in the last resort, a feature that is even more marked in the
new Code of Penal Procedure.
361. Remand in custody may be used only when
other measures are unsuitable or insufficient (art. 193, para. 2).
It may be used if there are strong grounds for believing that the
person has committed a serious offence punishable by a maximum prison
term of at least three years (art. 202, para. 2 (a)) or in the case
of a person who has unlawfully entered or remained on Portuguese
territory or against whom extradition or deportation proceedings
have been instituted (art. 202, para. 1 (b)).
362. If the accused appears to be suffering
from a mental abnormality, the court may order him to be placed
in a psychiatric or similar establishment for the duration of the
abnormality, after hearing counsel for the defence and, as soon
as possible, a member of the accused's family. The necessary precautions
are taken to prevent any risk of escape and to prevent any further
crimes being committed (art. 202, para. 2).
363. Remand in custody is used under the general
conditions for measures of constraint set out in article 204, concerning
escape or the risk of escape, the risk of interference with the
inquiry or destruction of evidence, and the maintenance of public
364. Second, in accordance with these general
lines, the legislature has just abolished the system for certain
offences considered to be more serious and for which bail has not
been granted. To this end, the situation of such prisoners will
be subject to reassessment by the court with a view to deciding
whether to maintain or replace the measure in question.
365. Third, revocation, modification or termination
of remand in custody as well as measures of constraint are regulated
in detail; they may be re-imposed for supervening ? reasons which
warrant them (arts. 212 to 214), and suspended in the event of serious
illness, pregnancy or maternity (art. 211).
366. Fourth, strict regulations apply to the
time-limits for remand in custody. The maximum time-limits are set
out in article 215 and relate to the duration of arrest before charges
are brought, the decision to charge, a verdict of guilty by the
court of first instance, and final conviction, having the force
of res judicata. The time-limit may be extended, as when an appeal
has been lodged with the Constitutional Court (art. 215). The limit
may be suspended under certain conditions if expert advice is sought
or if the accused falls ill and requires hospitalization (art. 216).
Rights in cases of administrative offences
367. The law prohibits remand in custody for
administrative offences (Decree-Law N.º 433/82 of 27 October,
Illegal presence of foreigners in Portuguese territory
368. Under the Extradition Act adopted in 1975,
persons can be arrested for the purposes of extradition. Any application
of these provisions must naturally take account of the principles
of the Constitution, particularly the matter of deprivation of freedom
(arts. 27 and 28) and extradition, deportation and the right to
asylum (art. 33). Decree-Law N.º 264-C/81 of 3 September applies
in deportation cases (see below in connection with arts. 12 and
Disciplinary arrest of military personnel
369. This is an exceptional, disciplinary and
non-penal measure provided for in the Regulations on Military Discipline.
Conditions for arrest, remand and measures to replace remand are
subject to the provisions of general penal procedure, except as
stipulated in the provisions of the Code of Military Justice (arts.
363 to 375).
Placing a minor in a suitable establishment
370. Portuqalls initial report on the implementation
of articles 10 to 12 of the International Covenant on Economic,
Social and Cultural Rights (E/1980/6/Add.35/Rev.1) has already covered
371. An official who orders a person to be deprived
of freedom and refuses to, inform him of the reasons for his arrest,
when the reasons have been requested, is punishable under article
417, paragraph 2, of the Penal Code.
372. In the Code of Penal Procedure still in
force, provision is made for the prisoner and his relations or a
person whom he trusts to be informed, and also for the prisoner
to be heard before the judge decides to place him on remand.
373. In the new Code of Penal Procedure the
consent of an accused person with 18 years of age is required before
any third person is informed that remand or other measure of constraint
or bail has been ordered (art. 194, para. 3). The information will
be given to a relation, confidant or counsel chosen by the accused
(para. 3.). Consent is none the less waived in the case of a person
under 18 years of age (para. 4).
374. The Code makes detailed provision for information
concerning the reasons for arrest to be supplied to the prisoner
by a judicial authority or a branch of the criminal police. Such
authorities must tell him of his status as an accused person by
informing him, and if necessary explaining to him, what his rights
and duties are (art. 58). Failure to carry out or a breach of the
formal procedures established by law means that the statements obtained
cannot be used as evidence against the person under arrest (art.
58, para. 3).
375. Remand shall be preceded, as soon as possible,
by a hearing at which the accused is present (art. 194, para. 2).
376. Under article 32, paragraph 2, of the Constitution:
"Any person charged with an offence shall
be presumed innocent until his conviction has acquired the force
of res judicata, and he shall be tried in the shortest space of
time compatible with safe guards for his defence."
We shall turn now to the questioning of the
detainee, without prejudice to the observations made in examining
paragraphs 2 and 3 of article 14 of the Covenant.
Questioning of the prisoner
The existing Code of Penal Procedure
377. Articles 250 to 268 cover questioning of
the prisoner and include provision for an interpreter to be appointed;
they also specify which methods of questioning are prohibited and
establish that the questioning shall have no effect if defence counsel
was not present in accordance with the law.
The new Code of Penal Procedure
378. The subject is covered in articles 141
379. The prisoner shall be brought before a
competent court within 48 hours after his arrest, failing which
he shall be brought before the court with jurisdiction at the place
of arrest. It will be possible in any event for the prisoner to
be brought, immediately after his arrest, before the Public Prosecutor's
Department with jurisdiction at the place of arrest. The Department,
having heard the accused, may order his release or decide that he
should go before the court in accordance with the procedure established
for the situations mentioned above.
380. Immediate release has also been provided
for under article 261.
Immediate release may be decided by the body which ordered or carried
out the arrest, or before which the prisoner is brought, in the
event of mistaken identity or if it has become unnecessary to proceed
381. A report on the incident is compulsory
if the body concerned is not the judicial authority.
382. Any questioning of the accused between
midnight and six a.m. shall have no effect, except when done immediately
after the arrest (art. 103, para. 3).
Trial within a reasonable time
383. The concept of trial within a reasonable
time must be viewed in the light of the provisions concerning the
timing of procedural and the time-limits on them. We shall revert
to this subject in our examination of other articles of the Covenant,
particularly article 14.
384. We should, however, refer at this point
to the time-limits on remand in custody. The existing and the new
Codes of Penal Procedure set out the maximum time-limits for each
phase in the procedure and also cases in which an appeal has been
lodged. On expiry of these time-limits, the accused is set free
immediately, under a decision by the court.
385. Under the new Code the court may decide
to impose other measures.
386. The accused is not set free if he is to
be held on remand because other proceedings against him are under
387. If the maximum time-limits are not observed,
an application for habeas corpus may be filed.
Paragraph 4: Right of appeal
388. The prisoner has the right of appeal to
a higher court to re-examine a decision to restrict or deprive him
of his freedom. The general principle in this respect is to be found
in article 32, paraqraph 1, of the Constitution, which states that
"criminal proceedings shall afford all necessary safeguards
to the defence".
389. Habeas corpus is dealt with in article
31 of the Constitution:
"l. The remedy of habeas corpus shall be
available before a court of law or court martial, according to the
case, against any wrongful use of power in the form of unlawful
arrest or detention.
2. Habeas corpus may be applied for by the person concerned or by
any citizen qualified to exercise his political rights.
3. The court shall rule on the application for habeas corpus within
a week, at a hearing attended by both parties."
390. The existing Code of Penal Procedure follows
these lines. Penalties apply to bodies which do not enforce a decision
on habeas corpus by the Supreme Court of Justice.
391. The prisoner also enjoys the right of appeal
against a decision by the court to deny or to grant bail. The right
to appeal is also granted in respect of cases where imposed obligations
have not been fulfilled. In the latter case, however, an appeal
may be made only when the accused is in prison (art. 647-2, para.
392. The new Code of Penal Procedure has adopted
Paragraph 5: Right to compensation
393. Under the terms of article 27, paragraph
5, "Any deprivation of freedom in breach of the provisions
of the Constitution and the law shall oblige the State to compensate
the victim in accordance with the law". In the new Code of
Penal Procedure, articles 225 and 226 rule on the compensation payable
as a result of unlawful or unjustified detention. Remand in custody
(a) In the event of an obvious (grosseiro) error
in assessing the factual premises on which the decision to remand
in custody is based;
(b) If the deprivation of freedom has caused abnormal and very serious
harm, unless the prisoner helped to create the situation by intent
Treatment of prisoners and purpose
of the treatment
395. Respect for the dignity of the prisoner
is covered by the provisions on deprivation of freedom.
396. Under the existing penal procedure and
article 6 of Decree-Law N.º 402/82 of 29 September, "in
the enforcement of sentences and security measures the human dignity
of convicted persons shall always be respected and they shall be
provided with the treatment that is necessary to maintain their
physical and mental health and required for their social rehabilitation".
397. Under article 7, the individual characteristics
of convicted persons must be taken into account so that preference
is given, within the limits of the law, to the most suitable ways
of carrying out the above aims.
398. Decree-Law N.º 265/79 (penitentiary
law) follows the same lines. Prisoners are still entitled to fundamental
human rights, except in regard to the limitations stemming from
a verdict of guilt and from the requirements for the order and safety
of the prison establishment. They also have the right to paid work
and social security benefits and as far as possible, the right of
access to culture and full development of their personality (Decree-Law
N.º 265/79, art. 4).
399. This principle is echoed in other provisions,
such as the right to receive visits (arts. 29 et seq.), to choose
one's work (arts. 63 et seq.), the right to privacy (art. 116) and
the right to petition the European Court of Human Riqhts (art. 151).
This matter was mentioned in the initial report by Portugal; see
also the comments concerning articles 14 and 18 below.
400. Remand in custody is enforced under the
special rules set out in articles 209 et seq. of Decree-Law N.º
265/79 (penitentiary law). Article 209 states that "persons
on remand are presumed innocent and must be treated accordingly"
(para. 1). Remand in custody such that it must avoid any restriction
of freedom not strictly necessary for the purpose served and for
the maintenance of discipline, safety and order within the prison
401. The conditions governing remand in custody
are set out in article 210 of Decree-Law No. 265/79 as amended by
Decree-Law No. 414/85 of 18 October. The normal régime for
accused persons is that they shall spend their time with other small
groups of prisoners during the day and be separated at night (art.
210, para. 1). These conditions do not apply to prisoners:
(a) Held incommunicado, in accordance with the
(b) Who make a written request to the prison
(c) Who are not suited to the normal régime
or who are presumed to be particularly dangerous in view of the
acts for which they were remanded or in view of their criminal record;
(d) Whose physical or mental condition does
not so permit.
In these cases, the prisoner may be held in
an establishment of another category, although the remand régime
will continue to be observed and, as soon as possible, he will be
separated from other categories of prisoners (para. 5).
402. Adults up to the age of 25 must, as soon
as possible, be remanded in custody in a suitable establishment,
essentially for educational purposes (art. 216).
403. The rules for custodial sentences are applicable
to remand in custody, unless otherwise established by law (art.
216-A). The application of this article in the light of the special
security measures was assessed in an opinion from the Office of
the Government Attorney published in the Diário da República
No. 272 of 26 November 1985, which went into thorough detail about
conditions for prisoners on remand. We shall here set out the basic
steps in connection with the opinion concerning the matter, and
note that it was adopted before publication in 1985.
404. The need to differentiate between the situations
of persons under arrest or on remand from convicted persons serving
a sentence was quickly realized by the legislature and recommended
by specialists. At the international level, more particularly after
the Second World War, human rights safeguards became particularly
important and led to the establishment of Standard Minimum Rules
for the Treatment of Prisoners, whether serving a sentence, under
arrest or on remand.
405. The basic document on the subject is the
Standard Minimum Rules for the Treatment of Prisoners adopted by
the First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders on 30 August 1955 and approved by the
Economic and Social Council in resolutions 663 C (XXIV) of 31 July
1957 and 2076 (LXII) of 13 May 1977.
406. The International Covenant on Civil and
Political Rights, signed by Portugal at New York on 7 October 1976
and approved for ratification by Act No. 29/78 of 12 June, after
declaring that "It shall not be the general rule that persons
awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution
of the judgement" (art. 9, para. 3), stipulates that "All
persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person n
(art. 10, para. 1), and that "Accused persons shall, save in
exceptional circumstances, be segregated from convicted persons
and shall be subject to separate treatment appropriate to their
status as unconvicted persons" (art. 10, para. 2 (a)).
407. Although it contains no precise provisions
concerning the treatment of arrested or remanded persons, the European
Convention on Human Rights, approved for ratification by Act No.
65/78 of 13 October, embodies rights which may have repercussions
on the custodial situation of this category of detainee.
408. A thorough reform of penitentiary law by
the legislature in Decree-Law No. 265/79 of 1 August, which entered
into force on 1 January 1980 (art. 227), was undertaken with those
international instruments, among others in mind. The new rules on
remand in custody are Dart of the idea that any accused person is
presumed innocent until the judgement has become res judicata (para.
3 of the preamble).
409. Remand in custody is itself an exception
to the principle that accused persons are presumed innocent until
found guilty. Given the danger to the rights of the individual,
it is understandable why most legislations, over and above establishing
the circumstances in which remand in custody may be imposed and
the purposes it is intended to serve, lay down special rules which
reflect the way remand in custody is different from actual imprisonment.
410. As the purpose of remand has nothing to
do with general, special or judicial prevention (it is not a true
sentence and hence there is no pretention to any ideal of social
rehabilitation), we can understand why article 209 of Decree-Law
No. 265/79, after establishing that: "1. Persons on remand
are presumed innocent and must be treated accordingly" introduces,
as the general principle underlying remand in custody, that: "2.
Remand in custody is such that it must avoid any restriction of
freedom not strictly necessary for the purpose served and for the
maintenance of discipline, safety and order within the establishment".
411. Detention conditions are covered by careful
and precise regulations, something which is necessary to prevent
remand in custody from becoming, in practice, a form of more or
less arbitrary repression by another name.
412. Under these provisions, over and above
establishing the principle (which had been a constant feature since
the reform of 1936, reaffirmed in the aforementioned international
instruments) that "persons on remand must be placed in separate
establishments or, as far as possible, in sections segregated from
other categories of prisoner" (art. 210, para. 3), the 1979
legislature, distancing itself radically from the normal rule of
constant separation set by the 1936 reform, established that "the
normal régime for persons on remand is that they shall spend
their time with other prisoners during the day and be separated
at night" (art. 210, para. 1). However, the normal régime
is not applicable to prisoners (art. 210, para. 2):
(a) Held in absolute or limited isolation by
order of the competent authority in accordance with the provisions
of the Code of Penal Procedure (cf. art. 211);
(b) Who make a written request to the prison
(c) Who are unsuited to communal living with
(d) Whose physical and mental condition does
not so permit.
413. Apart from exceptional situations in which
they are held incommunicado, prisoners may receive visits every
day, whenever possible, under the conditions set by the regulations
(art. 212); may wear their own clothing (art. 213); may receive,
at their own expense, food prepared outside the establishment (art.
214); may not be compelled to work (art. 215, para. 1), but may,
at their request, be authorized to do so, to attend educational
and basic and advanced vocational training courses or take part
in any other instructive, cultural, recreational or sports activity
organized by the establishment (art. 215, para. 2).
414. Apart from the special rules, the general
rules valid for all categories of prisoners are applicable to persons
on remand. They concern visits (arts. 31 to 39), correspondence
(arts. 40 to 48) and the use of free time (arts. 83 to 88).
415. Although recognizing that Decree-Law No.
265/79 had welcomed "the updated principles of penitentiary
law recommended by the specialized international agencies",
the legislature admitted that "the existing material, human
and financial realities" called for a number of small changes
in some matters, and this was later done in Decree-Law No. 49/80
of 22 March, in which the legislature also tried to resolve doubts
as to interpretation and to rectify the shortcomings which had become
evident in practice.
416. The changes regarding the conditions governing
remand in custody lie in article 210, paragraph 2 (c), whereby prisoners
"incapable of living together with others" are exempt
from the normal arrangements, as are those who "because of
their criminal record are considered especially dangerous".
An addition was made to article 216-A, which reads:
"The rules governing the conditions for
penalties involving deprivation of freedom shall apply to remand
in custody, unless the law provides otherwise."
417. Now that the broad lines of developments
in the conditions governing remand in custody have been explained
and a brief account given of the basic principles behind them, it
is necessary to consider the question of the legality of adopting
the special security measures referred to in the information provided
by the Director-General of Penitentiary Services, and of the conditions
in which they may be maintained.
418. Under the heading "Special security
measures", article 111 of Decree-Law No. 265/79 states:
"1. Special security measures may be applied
to the prisoner if his conduct or his physical state are such as
to suggest a risk of escape or committing acts of violence against
himself or against persons or objects.
"2. The following security measures shall
(a) Prohibition of the use, or confiscation
of certain objects;
(b) Observation of the prisoner at night;
(c) Separation of the prisoner from others;
(d) Removal of, or restrictions on, outdoor
(e) Use of handcuffs;
(f) Holding the prisoner in a special security
"3. Implementation of the measures set
out in the previous paragraph shall be authorized if it proves impossible
to avert by any other means the risk of escape of prisoners or the
order and security of the establishment in question are seriously
"4. The special security measures shall
be implemented only for as long as the risk which has led to their
"5. The measures referred to in paragraph
2 may not be implemented as a disciplinary measure."
419. Article 113 contains specific provisions
with regard to holding a prisoner in a special security cell and,
to use the wording of Decree-Law No. 49/80:
"1. A prisoner may be confined in a special
security cell only for reasons that relate to him and when all other
special security measures have proved to be ineffective or inadequate
means of dealing with the seriousness or nature of the situation.
"2. Uninterrupted solitary confinement
of a prisoner in a special security cell is intended solely as a
means of bringing about a return to normal and shall not, in any
case, exceed a period of one month.
"3. If, after the aforementioned period,
the conditions leading to implementation of the special measure
of solitary confinement still obtain, the prisoner must be transferred
to a security establishment or section.
"4. Confinement of a prisoner in a special
security cell for a continuous period exceeding 15 days shall require
the approval of the Directorate-General of Penitentiary Services.
"5. The time-limits referred to in the
previous paragraphs may not be regarded as interrupted because the
prisoner has attended religious services or been allowed periods
"6. A prisoner held in a special security
cell must be seen by the establishment's doctor and must be given
regular check-ups for as long as he remains there; the doctor must
report to the governor on the prisoner's physical and mental state
of health and, if appropriate, on the need to modify the penalty
"7. The special security cell may contain
no dangerous object; with that exception, the cell must have all
the features of the other cells in the establishment, apart from
those specifically relating to security."
420. The fact that the Director-General of Penitentiary
Services refers to article 113, paragraph 2. suggests that such
a measure has come to be regarded as "custody in a special
421. The legal possibility of applying, in the
abstract, such a measure to those remanded in custody raises no
great doubts. Any possible doubts were removed entirely by article
216-A (added to Decree-Law No. 265/79 by Decree-Law No. 49/80),
under which the rules on the system for penalties involving deprivation
of freedom can apply to remand in custody, unless the law provides
otherwise; in fact, no legal provision conflicts with application
of the measures set out in article 111, paragraph 2, of Decree-Law
No. 265/79 to persons remanded in custody.
422. Under the terms of article 114, paragraph
1, of Decree-Law No. 265/79, it is for the prison governor to decide
whether to apply the special security measures referred to in article
111, although, as already pointed out, when confinement in a special
security cell exceeds a continuous period of 15 days, the governor's
decision must be approved by the Director-General of Penitentiary
Services. However, a superior's authority includes, as a rule, all
the powers conferred by law on his subordinates (simultaneous competence),
with the exception of those cases in which the law empowers the
subordinate to perform certain acts (exclusive competence), something
which does not appear to apply in the case of article 114, paragraph
1. Accordingly, adoption of the measures laid down in article 111,
paragraph 2, may also be decided upon by the Director-General of
423. The relevant conditions are a more complicated
matter. It seems obvious, however, from both article Ill and article
113, that the special security measures in general, and the measure
concerning custody in the special security cell in particular, may
not be applied unless "it proves impossible to avert or remove
the risk of escape of prisoners or if the order and security of
the establishment are seriously disrupted" (art. 111, para.
3) and "when all other special security measures have proved
to be ineffective or inadequate means of dealing with the seriousness
or the nature of the situation" (art. 113, para. 1). In other
words, any threat to the order and security of penitentiary establishments
must be dealt with by stronger security and greater discipline in
the prison; only when security and discipline have proved inadequate
is it lawful to resort to these special security measures.
424. Among these measures, the most serious
is certainly confinement in a special security cell, and it may
therefore be applied only when all other measures (namely, separating
the prisoner from others and deprivation of/or restriction on outdoor
periods) have proved ineffectual or inadequate as a means of dealing
with the seriousness or nature of the situation.
425. These measures, from the most flexible
to the most rigid, are extraordinary and exceptional are will no
longer be applied when the danger that initially occasioned them
is removed (art. 11, para. 4). Regarding solitary confinement in
a special security cell, the legislature has gone so far as to decree
that it must be brought to an end even in cases where, after the
one-month time-limit has expired, the conditions that caused it
to be enforced still obtain (art. 113, para. 3).
426. It is for the prison governor to decide
in each case whether conditions warrant these measures, without
prejudice to the supervisory powers of the Director-General of the
Penitentiary Services and of the Minister of Justice and the right
of persons remanded in custody or of accused persons to be brought
before a judge of the Court for the Inspection of the Enforcement
of Sentences (Decree-Law No. 265/79, art. 139).
427. Prison governors have discretionary powers
and such powers can be abused when exercised for reasons other than
those stipulated by law (to avert or remove the risk of escape of
prisoners or put an end to serious disturbances of the order and
security of the prison). They must never be used for disciplinary
428. Article 113, paragraph 1, states clearly
that confinement in a special security cell may be applied "only
for reasons that relate to" the prisoner himself, something
which highlights the need to weigh up the circumstances of the individual
before enforcing this measure. This would seem to prevent any enforcement
for reasons unconnected with each of the prisoners affected, or
in conditions which could be construed as collective punishments,
which are expressly forbidden by rule 27, paragraph 2, of the Standard
Minimum Rules for the Treatment of Prisoners, as adapted by the
Council of Europe.
429. These rules set out the powers, conditions
and the aims of prison administration.
430. As we have stated before, the special security
measures must be halted when the risk which has necessitated their
enforcement no longer exists. Confinement in a special security
cell must end, even when the conditions which gave rise to it still
obtain after the one-month time-limit has expired, in which case
the prisoner must be transferred to a security establishment or
431. Is the one-month time-limit interrupted
when the person on remand is taken out to appear before a magistrate?
Article 113, paragraph 5, rules that this time-limit is not interrupted
if a prisoner has attended religious services or been allowed periods
of recreation. In view of this rule, it might be inferred, a contrario,
that the time-limit is interrupted when the prisoner is brought
before the court. Quite apart from the obvious fallibility of this
kind of argument, such an interpretation is not in keeping with
the spirit of the law. In the case of persons remanded in custody,
the normal régime is for them to spend their time with other
prisoners during the day (art. 210, para. 1). The period of confinement
can only be considered to have been interrupted when the prisoner
has been allowed to return to the normal system of remand in custody,
which, because of its very nature, cannot be confused with being
taken from a special security cell, under constant surveillance,
in order to appear before the court.
432. Again, the time-limit of one month cannot
be interpreted as the normal period of confinement in a security
cell. This is the maximum period and it may not be exceeded. Confinement
must end when the risk which has necessitated it no longer exists
(art. 111, para. 4), when the situation has returned to normal (art.
113, para. 2), and the prison administration must take all requisite
steps to ensure that the situation is restored to normal as quickly
433. All of this still means that the order
and the security of the prison are recognized as being the fundamental
values of the régime on imprisonment, including remand in
custody. They are limits on the fundamental rights of. prisoners
(art. 4, para. 1), their communal life (art. 17, para. 2 (c)), the
freedom to decorate their cells (art. 19, para. 3), the right to
purchase food and articles of personal hygiene (art. 27, para. 3),
visits (art. 31 and art. 34, para. 1) , correspondence (art. 40,
para. 2, art. 43, para. 1 (a) choice of work (art. 63, para. 7),
leisure activities (art. 83, para. 3, and art. 87), access to newspapers
and periodicals (art. 85, para. 2) , radio and television (art.
86, para. 1) , attendance at religious services (art. 90, para.
3) and privacy (art. 116, para. 1).
434. It is clear from these provisions that
the underlying idea is that where insurmountable conflicts arise
between the rights of prisoners and the need to maintain order and
security in the establishment and among the inmates, these values
must ultimately prevail. But even in these situations, which can
almost prefigure a state of necessity, the prison authorities must
always bear in mind the spirit of article 108, paragraph 3, (like
all the other articles cited without any indication of the source,
it is from Decree-Law No. 265/79), which states: "Any restriction
imposed on the prisoner in the interest of order and discipline
must be proportionate to the purpose served and must not be maintained
beyond the time strictly necessary."
435. Under the terms of article 71 of the Penal
Code, "If the penalties for an offence involve custodial or
non-custodial sentences, the court must give preference to the latter
and state the grounds for so doing, when a non-custodial sentence
is sufficient to achieve the social rehabilitation of the offender
and meets the needs for punishment and prevention of the offence."
436. If it is a custodial sentence, i.e., one
of deprivation of freedom in a penal institution, the social rehabilitation
of the offender is always borne in mind in the provisions of the
law on penitentiaries, due account being taken of the enforcement
of custodial sentences, the choice of institution in which the convicted
person will serve the. sentence, and the treatment of prisoners.
437. Prisoners must be committed according to
sex, age and legal status (accused persons or convicted persons,
first offenders, habitual offenders) to separate establishments
and, if this is not possible, to separate wings in the prison establishment
(art. 12, para. 1).
438. The period involved, the state of physical
and mental health, the proximity of the family residence, security,
training and labour considerations which may be important when a
prisoner returns to society, will also be taken into account in
deciding on the prison establishment (art. 11, para. 1).
439. Establishments exist for young adults and
detention centres for young people from 16 to 21 years of age. Young
people remain in them up to the age of 25 if their treatment so
requires (art. 158, para. 5 (a), and art. 160). Suitable principles
of re-education for the return to society apply to the imprisonment
of adult offenders up to the age of 25. Once order and security
are guaranteed, efforts are made to provide vocational training,
physical exercise, and leisure activities, with expert guidance
440. Decree-Law No. 90/83 of 16 February established
two detention centres for young people from the age of 16 to 25
serving short sentences, as prescribed in Decree-Law No. 101/82
(Special Penal Code for Young People). The aim is to respond to
acts by young offenders that are not sufficiently serious as to
warrant a Prison sentence but justify an institutional measure.
441. The system for young people was discussed
in Portugal's initial report on the implementation of articles 10
and 12 of the International Covenant on Economic, Social and Cultural
442. Further to the reform of the prison system
initiated under Decree-Law No. 265/79, Decree-Law No. 204/83 of
20 May established the Social Rehabilitation Institute, the main
aim being to prevent crime, especially through the social rehabilitation
of offenders and non-offenders subject to institutional or non-institutional
measures and through support for minors who are at risk or experience
difficulty in adapting to society (art. 2). The Institute's functions
include (art. 3):
(a) Participation in the implementation of institutional
measures particularly in penal, psychiatric and other institutions;
(b) Support for offenders who have been released
or are on parole, with the view to their reintegration in society;
(c) Participation in the implementation of measures
applicable to young offenders or minors;
(d) The development of co-operation with all
bodies forming part of the system of the administration of justice,
for effective implementation of social rehabilitation and crime
(e) Examination of social marginalization in
order to make the Institute's activities more relevant;
(f) Establishment of relations with foreign
agencies and international organizations.
Imprisonment for debts
443. Under the Portuguese legal system, no one
may be imprisoned for debts.
444. However, provisions of criminal law deal
with total or partial family obligations, namely cases of failure
to provide material assistance to one's family, material assistance
outside wedlock and desertion of one's spouse or children in moral
danger, matters which are covered in articles 197 to 199 of the
Right to freedom of movement
free choice of residence
445. Article 44 of the Constitution recognizes
this right and reads:
"1. Every citizen is guaranteed the right
to travel and to settle freely anywhere in Portuguese territory.
"2. Everyone is guaranteed the right to
emigrate or to leave and to return to Portuguese territory."
446. Portugal has ratified the European Convention
on Human Rights, which has been incorporated into national legislation
under article 8 of the Constitution.
447. Under Article 2 of the Fourth Protocol
to the Convention:
"1. Everyone lawfully within the territory
of a State shall, within that territory, have the right to liberty
of movement and freedom to choose his residence.
"2. Every person shall be free to leave
any country, including his own.
"3. No restrictions shall be placed on
the exercise of these rights other than such as are in accordance
with law and are necessary in a democratic society in the interests
of national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.
"4. The rights set forth in paragraph 1
may also be subject in particular areas to restrictions imposed
in accordance with law and justified by the public interest in a
Article 3, paragraph 2, further
states that "No one may be deprived of the right to enter the
territory of the State of which he is a national".
448. Under article 18 of the Constitution, rights,
freedoms and guarantees may not be subject to any restrictions except
in cases expressly provided for in the Constitution and those restrictions
shall be limited to what is necessary to safeguard other rights
or interests protected by the Constitution. Restrictive laws must
be general and abstract in nature and may not have any retroactive
effects or restrict the scope of the essential substance of the
Constitution. For its part, article 19 forbids the suspension of
the exercise of rights, freedoms and safeguards except in the case
of a state of siege or emergency declared in the manner laid down
in the Constitution.
449. Act No. 44/86 of 30 September, as we have
seen, regulates states of siege and states of emergency and closely
follows the constitutional provisions. Some restrictions on the
right to freedom of movement are stipulated. Under a state of siege
or emergency, the restrictions on movement of persons and vehicles
require the authorities to take t ' he requisite measures, especially
in regard to the transport, housing and support of the citizens
affected (art. 2, para. 2 (c)). The Act further guarantees the right
of access to courts to defend the rights and freedoms and safeguards
against any harm or threat of harm caused by imposing unconstitutional
or unlawful measures (art. 6). The Act recognizes the principles
of equality, non-discrimination and proportionality (art. 2, Paras.
450. Again, regulations on the entry and residence
of foreigners in Portugal (see Decree-Law No. 264-B/81, of 3 September)
as well as the principles governing applications for asylum by foreigners
or stateless persons (Act No. 38/80 of 1 August and Decree-Law No.
415/83 of 24 November) are discussed briefly below (a subject also
examined in connection with article 13 of the Covenant; see, in
addition, CERD/C/101/Add.8, paras. 197 to 215).
451. Reference is also made here to the rules
and regulations of the Aliens Service (Decree-Law No. 440/86, of
Entry and residence of foreigners in Portugal
452. Under article 1, foreigners wishing to
enter Portugal should as a rule do so at the frontiers and present
a valid passport. For certain categories of persons, including diplomats,
the presentation of a passport is not required.
Travel documents issued by the Portuguese authorities
453. A passport for foreigners may be issued
to: (a) stateless persons or nationals of countries without any
diplomatic or consular representation in Portugal; (b) nationals
of countries with which Portugal has signed an agreement; (c) persons
non-resident. in Portugal if exceptional reasons so determine. This
passport is valid for two years.
454. A travel document (arts. 23 to 27) may
be issued to foreigners with refugee status who are living in Portugal.
Under Act No. 38/80 of 1 August, it may also be granted to refugees
in accordance with paragraph 11 of the annex to the 1951 Convention
relating to the Status of Refugees. This document is valid for two
years and may be issued for individuals or families.
455. A safe conduct (arts. 28 and 29) is granted
to foreigners not resident in Portugal who have proven that it is
impossible or difficult for them to obtain another document which
will' enable them to leave the national territory.
456. Any foreigner who has been granted a permit
to reside in Portugal by the Aliens Service is a resident. The Service
makes its decision in the light of: (a) the person's respect for
Portuguese laws, in particular laws pertaining to foreigners; (b)
the person's financial means; (c) the person's purposes in residing
in Portugal and their viability; (d) family ties with other national
or foreign residents.
Right of asylum
457. The right-of asylum is (under Act No. 38/80
of 1 August, and Decree-Law No. 415/83 of 24 November) guaranteed
to foreigners and stateless persons persecuted or seriously threatened
with persecution at a result of their activities In furtherance
of democracy, social and national liberation, peace between peoples,
and the freedom and rights of the individual in the State of his
nationality or usual place of residence.
458. This right will be studied in detail in
the light of article 13 of the Covenant. However, it is interesting
to note that, if asylum is denied, the applicant may remain on Portuguese
territory for a temporary period not exceeding 60 days in order
to seek asylum in another country or to return to one where he has
already been granted it. On the expiry of that period, the applicant
becomes subject to the general code concerning foreigners in Portugal.
459. Regulations for the Aliens Service were
issued on 31 December 1986, after the adoption of Decree-Law No.
440/86. The Service monitors and supervises foreigners in order
to contribute to the prevention of terrorism and other forms of
organized international crime. It has been reorganized in order
to guarantee freedom of movement of persons by keeping a check on
and removing risks of crime from abroad.
460. The Aliens Service, which falls under the
Ministry of the Interior, examines, promotes, co-ordinates and executes
measures connected with frontier crossing and it keeps a constant
check on the activities of foreigners on Portuguese territory. Its
functions include, more particularly (art. 2):
(a) Checking and monitoring the frontiers to
prevent them being crossed by individuals without documents or proper
(b) Checking the documents of nationals at points
of entry and departure;
(c) Checking the stay and activities of foreigners
on Portuguese territory;
(d) Advising on requests for visas;
(e) Granting permanent visas and residence permits
(f) Organizing proceedings to expel foreigners
from Portuguese territory;
(g) Conducting proceedings for applications
for asylum in accordance with the law and maintaining contacts with
national and international agencies for the support and protection
(h) Preventing crew members and passengers who
arrive from places where health conditions are suspect from disembarking
without the authorization of the Directorate-General of Primary
461. Decree-Law No. 312/86 of 24 September has
stipulated that foreigners must be in possession of a certain amount
of money to live on when they enter Portuguese territory, unless
they can prove that they will have accommodation and food for the
duration of their stay. These provisions do not apply to citizens
of member States of the European Communities.
462. In regard to any measures of constraint
ordered during the proceedings, the new Code of Penal Procedure
provides for measures such as a ban on staying in Portugal, on travelling
abroad, a requirement to remain in certain regions or a ban on frequenting
certain circles or places (art. 200, para. 1). Under the terms of
article 201, a person may be placed under house arrest, but only
where there are serious grounds for presuming that an offence involving
a maximum prison sentence exceeding three years has been committed.
For the purposes of identification, the police may not, by law,
hold an individual for more than six hours (art. 250, para. 3).
463. In the case of administrative offences,
by law the competent administrative and police authorities are entitled
to require the offender to identify himself. When persons are caught
in flagrante delicto, they cannot, for identification purposes,
be held for a period exceeding 24 hours (Decree-Law No. 433/82 of
27 October, art. 49).
464. Article 54 of the Penal Code, concerning
probation, entitles the court to impose obligations on convicted
persons with a view to rehabilitation, including the obligation
not to frequent certain areas or to reside in certain places or
regions (para. 2 (b) and (c)). The obligations are part of a personal
rehabilitation plan under the probation system introduced by article
53 of the Code.
465. Articles 6 and 8 of Decree-Law No. 401/82
of 23 September (special penal system for young people), concern
certain rules of conduct for young offenders, for rehabilitation
purposes (see E/1980/6/Add.35/Rev.1).
466. On 30 May 1984, Portugal ratified the European
Agreement on Regulations governing the Movement of Persons between
Member States of the Council of Europe. Under article 1, paragraph
1, nationals of the contracting parties may enter and leave the
territory of the other parties on presentation of one of the documents
listed in the annex to the Agreement. With regard to Portugal, the
documents are a valid passport or one that is not more than five
years out of date, a valid national identity card, a valid collective
identity travel document, and an identity card (cédula pessoal)
in the case of minors.
467. The total number of foreign residents in
Portugal in December 1985 was 79,594. Of these 6,257 were granted
residence permits and 6,533 were granted visas to pursue professional
Deportation, extradition and
the right of asylum
468. Article 33 of the Constitution sets forth
the principles regulating extradition, deportation and the right
of asylum. It forbids the extradition or deportation of Portuguese
citizens from Portuguese territory.
469. The grounds for deportation are now set
forth in Decree-Law No. 264-B/81 of 3 September and persons may
be deported in the following cases (art. 42, para. 1):
(a) Illegal entry into Portuguese territory;
(b) Attacks against Portuguese sovereignty,
public order or morality;
(c) Any threat against the interests of the
country or the dignity of the State of Portugal or of its nationals;
(d) Unauthorized interference in the political
life of the country;
(e) Failure to observe the legal provisions
(f) Involvement in any actions of a kind which
would have prevented their entry into Portuguese territory in the
first place if the Portuguese authorities had had knowledge of such
Persons may also be deported as the result of
a criminal conviction or in cases stipulated in article 43 of Decree-Law
470. Under article 33, paragraph 4, of the Constitution,
extradition and expulsion shall be decided only by a judicial authority
(see Decree-Law No. 264-B/81, art 45, concerning expulsion, and
Decree-Law No. 437/75 of 16 August, art. 24, concerning extradition).
With respect to guarantees of protection against the expulsion procedure
governed by Decree-Law No. 264-B/81, a foreigner. will receive notification
of the court proceedings so that he may prepare and present his
defence. If he is not present, the hearing may be postponed only
once (art. 46 and art. 47, para. 2 (b)).
471. The Constitution also guarantees the right
of asylum for foreigners and stateless persons persecuted or seriously
threatened with persecution as a result of their activities on behalf
of democracy, social and national liberation, peace between peoples,
and the freedom and rights of the individual (art. 33, para. 5).
472. Refugee status and the right of asylum
are provided for in Act No. 38/80 of 1 August, as amended by Decree-Law
No. 415/83 of 24 November.
473. The Ministers of the Interior and the Minister
of Justice rule on applications for asylum. When the right of asylum
is granted, the beneficiary has refugee status and the effects of
asylum are extended to the applicant's under-age children and can
be extended to other members of the nuclear family if the applicant
474. Any application for asylum shall be submitted
to the Aliens Service within 60 days following entry into Portuguese
territory. If the application is viewed favourably, the Aliens Service
will issue a temporary residence permit which will remain valid
until a final decision is taken on the application. On submission
of an application, any administrative or criminal proceedings initiated
by reason of illegal entry are suspended. If asylum is granted,
the proceedings are discontinued.
475. Once the decision has been taken, the Aliens
Service notifies the applicant and informs the representative of
the Office of the United Nations High Commissioner for Refugees.
If the decision is in the negative, the applicant is informed of
his right to appeal to the Administrative High Court within 30 days.
Where asylum is refused, the applicant may remain in the national
territory for an interim period not exceeding 60 days so that he
may seek asylum in another country or return to the one which had
already granted him asylum.
476. Proceedings to grant or refuse asylum,
as well as deportation proceedings, are free of charge and dealt
477. Refusal of asylum, in limine, is admissible
in the absence of proper grounds or in cases in which a person has
left the country of origin or of residence under a deportation order
(art. 15-A, added under Decree-Law No. 415/83), issued as a result
of one of the acts prohibited by article 9 of Act No. 38/80 of 1
478. As to the resettlement of refugees under
the mandate of the office of the United Nations High Commissioner
for Refugees, the Government's decision will be taken in the light
of the particular circumstances and the legitimate interests to
479. In view of the incorporation into Portuguese
law of the European Convention on Human Rights, under article 8
of the Constitution, account must also be taken of article 3 of
the Fourth Protocol (adopted by Act No. 65/78 of 9 November):
"1. No one shall be expelled by means either
of an individual or collective measure, from the territory of the
State of which he is a national."
In addition, article 4 of the Protocol prohibits
the collective expulsion of foreigners.
The administration of justice
480. Article 113, paragraph 1, of the Constitution
considers the courts to be organs of supreme authority, and under
articles 167 (h) and 168, paragraph 1 (g). the Assembly of the Republic
is competent to legislate on their organization, functioning and
procedures. It falls to the courts to administer justice in the
name of the people (art. 205). Hence the Jurisdictional function
of the State devolves on them alone and, in accordance with article
206, they ensure the defence of the rights and interests of citizens
that are protected by law, punish violations of democratic legality
and resolve conflicts of public and private interests.
481. It should also be emphasized that the courts
are independent (vis-à-vis the other sovereign organs, State
bodies and the hierarchical orders and instructions of other courts)
and are subject only to the law (art. 208). Their decisions are
binding on all public and private bodies and prevail over the decisions
of all other authorities (art. 210, para. 2).
482. The detailed and complex characteristics
of some branches of substantive law have warranted the establishment
of several systems of specialized courts, depending on the specific
judicial matters concerned. Accordingly, article 212 of the Constitution
stipulates the following categories of court: the Constitutional
Court, courts of law, the Court of Audit and courts martial. It
also provides for the establishment of administrative and fiscal
courts, maritime courts and arbitration tribunals.
483. Under Act No. 35/86 of 4 September, the
maritime courts have civil jurisdiction (art. 4) with regard to
administrative offences (art. 5), the enforcement of decisions (art.
6) and international matters (art. 7).
484. The courts martial are competent to try
essentially military offences.
485. Thus, in conformity with the Constitution,
courts martial no longer have jurisdiction ratione personae over
members of the armed forces, for their jurisdiction is defined ratione
materiae, in relation to some categories of crime (Constitution,
art. 218, para. 1). These provisions have rendered unconstitutional
others whereby courts martial were competent to try administrative
cases, within the armed forces.
486. The Constitutional Court declared this
to be unconstitutional in two recent judgements of 22 April (81/86)
and 27 June (204/86)
487. Where good cause exists, deliberate offences
comparable to essentially military offences may be included by law
in the jurisdiction of the courts martial (art. 218, para. 2). It
must, however, be emphasized that legislation on this matter falls
within the sole jurisdiction of the Assembly of the Republic, in
accordance with article 167 (i) of the Constitution.
488. The various categories of courts of law
do reflect a hierarchy, but the sole aim is to ensure that decisions
can be reviewed (Act No. 82/77, art. 15). Therefore, it is possible
to lodge an appeal against the decisions of the courts of first
instance with the appeal courts and thence with the Supreme Court
489. The Supreme Court of Justice is the highest
court of law, without prejudice to the competence of the Constitutional
Court in regard to matters that are unconstitutional or unlawful
(Constitution, art. 214, para. 1 and Act No. 82/77, art. 21).
490. The courts of appeal are, as a rule, courts
of second instance (Constitution, art. 215, para. 2 and Act No.
82/77, art. 11, para. 2) and they sit in each judicial district.
Depending on the subject-matter, the courts of law may be courts
with general jurisdiction or courts with special jurisdiction.
491. As a general rule, the courts of first
instance have general jurisdiction (Act No. 82/77, art. 1) and they
have all jurisdictional authority not assigned to other courts of
law. (Act No. 82/77, art. 54).
492. The courts with special jurisdiction are
the civil courts, criminal courts, courts of criminal investigation,
family courts, juvenile courts, labour courts and courts for the
enforcement of sentences (Constitution, art. 216, para. 1 and Act
No. 82/77, art. 45, paras. 2 and 56).
493. It is the responsibility of the civil courts
to settle cases not assigned to other courts of law (Act No. 82/77,
art. 57); the criminal courts decide or the indictment ("pronúncia")
, the trial and its outcome in criminal cases (Act No. 82/77, art.
59)l and the courts of criminal investigation conduct the pre-trial
proceedings and adversary proceedings and exercise the jurisdictional
functions relating to the preliminary inquiry and the procedure
on security measures (Act No. 82/77, art. 60).
494. It is the responsibility of family courts
to prepare and hear cases concerning marriage and to exercise civil
jurisdiction over minors (Act No. 82/77, arts. 61 and 62); the labour
courts exercise social jurisdiction either in civil matters or labour
offences (Act No. 82/77, arts. 65 to 67); and generally the courts
for the enforcement of sentences decide on the alteration or substitution
of current sentences and security measures and deal with the respective
prisoners (Act No. 82/77, arts. 70 and 71).
495. The juvenile courts are competent to decide
on measures regarding minors who are over 12 years of age (apart
from the cases stipulated in paragraph 2) and under 16 (apart from
the cases stipulated in paragraph 4) and:
(a) Have great difficulty in adjusting to normal
life in society owing to their situation, conduct or obvious tendencies;
(b) Engage in begging, vagrancy, prostitution,
debauchery, abuse of' alcoholic beverages or unlawful use of narcotics;
(c) Commit acts characterized by the law as
crimes, offences or contraventions (Act No. 82/77, of 6 December,
art. 63, para. 1).
496. In accordance with Act No. 82/77, article
63, paragraph 3, and Decree-Law No. 314/78, article 15, which deals
with the guardianship of minors, the juvenile courts are also competent
(a) Decide on measures regarding minors who
have been ill-treated, abandoned or deprived of support and are
consequently at risk in terms of their health, safety, education
(b) Decide on measures regarding minors who
have reached the age of 14 and have failed to adjust to family discipline,
employment or the educational or welfare establishment in which
(c) Assess and rule on applications to protect
minors against misuse of authority in the family or in the institutions
in which they live.
497. In short, the juvenile court is intended
to provide judicial protection for minors and to defend their rights
and interests by implementing measures for protection, assistance
and education (Decree-Law No. 314/78, art. 2).
498. The courts with special jurisdiction are
defined in terms of the form of proceedings (Constitution, art.
216, para. 1 and Act No. 82/77, art. 45, para. 3). They are equivalent
to the criminal, correctional and police chambers of the criminal
courts (Decree-Law No. 269/78, art. 7).
499. The criminal chambers are concerned with
the indictment, trial and subsequent decisions in criminal cases
covered by "de querela" proceedings or when a collective
court must intervene (Decree-Law No. 269/78, art. 8).
500. The correctional chambers are concerned
with the indictment or its equivalent, trial and subsequent decisions
in criminal cases punishable under correctional proceedings (Decree-Law
No. 269/78, art. 9).
501. The police chambers are concerned with
preparation of the proceedings, trial and subsequent decisions in
criminal cases involving summary proceedings or contravention proceedings
(Decree-Law No. 269/78, art. 10.
502. The "julqados de paz", which
have not yet been established, are also courts of first instance
and have jurisdiction in the parishes (Act No. 82/77, art. 12, para
2, and art. 73). The "justice of the peace" (juiz de paz)
is elected by the parish assembly (Act No. 82/77, art. 74) and he
rules on minor civil and criminal cases. Appeals against his decisions
can be brought before the court of first instance with jurisdiction
in the relevant parish (Act No. 82/77, art. 76, para. 2 and art.
20, para. 1).
503. The new structure of the penal procedure,
introduced as a result of the entry into force of the new Code of
Penal Procedure, involves changes in the composition and jurisdiction
of the criminal courts. Changes are also made to the organizational
structure of the courts of law (Penal Procedure Authorization Act,
504. In settling cases involving rural leases,
placing minors in custody, dealing with minor criminal offences
committed by minors over 16 and already subject to special measures,
or hearing certain labour matters in which a collective tribunal
may take Part, two people's judges who are not "togados"
(not wearing a judge's robe) may Participate in the hearing. They
will be drawn:
(a) In the first case, from lessors and tenant
(b) In the second case, from citizens without
(c) In the last case, from independent and self-employed
workers or from workers' and employers' organizations (Act No. 82/77,
arts. 58, 64 and 68, and Constitution, art. 217, para. 2).
505. After 25 April 1974, the situation regarding
the judicial system was marked by the:
Social upheaval and an increased number of grievances;
Economic recession and widespread crisis;
Return to Portugal of approximately 1 million
nationals from former colonies;
Emergence of new factors making for conflict
and instability in the law;
Real dangers of people taking justice into their
Danger of democracy being lost.
All these limitations and influences made the
task of redefining priorities, projects and programmes to reduce
the existing shortcomings a particularly difficult one.
506. Therefore it proved necessary to develop
and implement a plan to counter the crisis, three areas being of
fundamental importance in restoring the country's judicial system:
(a) Training and increasing the number of judges
and officials in the judicial system;
(b) Legislative changes or reform of the methods
of judicial organization and the functioning of the courts;
(c) Structural reform of the judicial system
and detailed review of the laws on procedure.
The first of these measures, concerning the
selection and training of judges, were taken in 1974 and 1975 -
a period characterized by profound social and economic changes and
marked by political instability and the danger of reverting to non-democratic
507. After a decision was taken to opt for the
only viable solution with regard to the selection and training of
judges, namely a guarantee of the best choice, the number was increased
as rapidly as possible, without however jeopardizing the standard
of quality required to ensure competent administration of justice
and the safeguards demanded by democracy.
508. After a distinction was drawn between judges
on the Bench and members of the Public Prosecutor's Department,
the Centre for Judicial Studies, a training school for judges was
established in Portugal. From the technical competence it has displayed,
this school has gained great international prestige among such establishments.
509. The number of judges has increased from
440 in 1974 to over 900 at the present time and, among prosecuting
counsels, from 292 in 1974 to approximately 600 today.
510. The status of judicial officials has been
greatly changed, with the aim, inter alia, of improving the selection
standards and acquiring more highly trained staff. As a result of
the efforts made, there has been an overall increase from approximately
2,700 in 1974 to almost 5,500 at present.
511. Along with efforts to create conditions
to overcome the shortage of higher ranking staff and their tendency
to seek alternative employment, the new organizational laws and
respective regulations on the courts of law and Public Prosecutor's
Department, together with the Statutes for Judges, were elaborated
- in the first place by Act No. 82/77; in the review of the Statutes
for Judges by Act No. 21/85 of 30 July; by replacing the organizational
law on the Public Prosecutor's Department by Act No. 47/86 of 15
October. These laws and regulations set out the structure and jurisdiction
of the highest organ for the administration and discipline of judges
(Higher Council of the Judiciary) and of the umbrella organ for
prosecuting counsels (Office of the Government Attorney).
512. Also in the legislative field, the Organizational
Act concerning Clerks to the Courts and the Statutes of Judicial
Officials was published on 30 December 1978. However, this official
text was replaced by Decree-Law No. 385/82 of 16 September, which,
while retaining most of the provisions of the earlier text, introduced
a few important changes. More particularly they concern the admission
procedure and, as a result, candidates are now tested publicly in
order to ensure that the best are selected. In addition. measures
have been introduced to modernize our courts gradually by creating
new categories of officials, assigning units solely to serve the
Public Prosecutor's Department and regarding professional specialization
as the best criterion in the appointment of clerks to the labour
513. As to legislative reforms and laws of procedure,
mention should be made of the introduction, in Decree-Law No. 242/85
of 9 July, of important changes to the civil procedure. The aim
of such changes has fundamentally been to "relieve the situation"
so that "at the same time, the decisive lesson of experience
can be used for some solutions which the Legislative Review Commission
already felt able to suggest to the competent bodies in order to
simplify the procedure".
514. The new Statutes for Judges, approved by
Act No. 21/85 of 30 July, replaced the previous statutes (which
had been analysed in Portugal's initial report - Act No. 85/77 of
13 December). Under article 40, a person must, in order to perform
the duties of a judge:
(a) Be a Portuguese citizen;
(b) Enjoy all political and civil rights;
(c) Hold a degree in law, obtained or approved
(d) Have successfully completed the studies
and training courses at the Centre for Judicial Studies.
Such persons may not exercise any other public
or private function apart from teaching, unpaid scientific research
of a judicial nature or holding office in the Professional organizations
of the Bench (art. 13). Nor may they be publicly involved in party
politics (art. 11).
515. Judges must be assigned to their posts
in the light of the needs of the service and the private and family
life of those concerned. In the assignment of judges to the courts
with special jurisdiction, particular consideration must be given
to the training candidates have received in the field concerned.
516. The Higher Council of the Judiciary, the
highest administrative and disciplinary organ, has several functions
set forth in article 149 of Act No. 21/85, including:
(a) To appoint, assign, transfer, promote, exonerate,
assess the professional merit of and exercise disciplinary action
in connection with judges of the courts of law;
(b) To express opinions on texts concerning
the organization of the judiciary, the status of judges and matters
relating to the administration of justice in general;
(c) To study and suggest to the Ministry of
Justice legislative measures to improve penitentiary institutions
and increase their efficiency.
517. Act No. 47/86 of 15 October very recently
approved the organizational status of the Public Prosecutor's Department,
the organ competent to represent the State, initiate criminal proceedings
and defend democratic legality and such interests as are stipulated
by law (Constitution,. art. 224).
518. The Office of the Government Attorney is
the highest organ of the Public Prosecutor's Department and it is
(a) To promote the defence of democratic legality;
(b) To appoint, assign, transfer, promote, exonerate,
assess the professional merit of and exercise disciplinary action
in connection with the prosecuting counsels and staff of the Public
(c) To direct, co-ordinate and monitor the activities
of the Public Prosecutor's Department and draft directives, orders
and instructions to be followed by the prosecuting counsels and
staff of the Department in the exercise of their duties;
(d) At the request of the Government, in cases
where mandatory consultation is required by law, to give advisory
opinions which will be regarded as official interpretations if they
meet with the agreement of the member of the Government who requested
them; to suggest to the Minister of Justice legislative measures
to enhance the efficiency of the Department and to improve judicial
(e) To inform the Government of obscurities
or contradictions in legal provisions and to suggest appropriate
(f) To monitor the exercise of the functions
of police bodies.
519. The Minister of Justice gives the Government
Attorney general instructions on the functions of the Public Prosecutor's
Department and specific instructions in cases of civil actions involving
the State, and requests clarification and reports from the Higher
Council of the Department.
520. The functions of officials of the Department
are parallel to and independent from those of court judges (art.
521. The incompatibilities, duties and rights
are similar, for example, with regard to the exercise of public
or private functions or party political activities (arts. 60 et
522. In order to become a prosecuting counsel,
a Person must:
(a) Be a Portuguese citizen;
(b) Enjoy all civil and political rights;
(c) Hold a degree in law obtained or approved
(d) Have successfully completed studies and
training courses at the Centre for Judicial Studies.
523. The assignment of prosecuting counsels
is subject to the same criteria to those laid down for judges (art.
524. Access to the courts is guaranteed by the
Constitution (art. 20). It is also fully safeguarded, during a state
of siege or state of emergency, in all matters pertaining to the
defence of rights, freedoms and guarantees infringed or threatened
by a measure that is unconstitutional or illegal (Act No. 43/86
of 30 September, art. 6).
525. With regard to Public hearings, article
211 of the Constitution applies:
"Court hearings shall be Public, except
when the court itself decides otherwise by means of a substantiated
decision, in order to safeguard Personal dignity and public morality
or to ensure that it may function normally."
526. Acts of procedure may be Public, depending
on the circumstances (arts. 86 et seq.).
527. On pain of being declared null and void
a criminal case is given a Public hearing once a decision is taken
on committal for trial at the end of the Preliminary investigation.
If a preliminary investigation does not take Place, the case is
given a Public hearing when such an investigation can no longer
be required. Until such time in the procedures, the case is confidential
(art. 86, para. 1).
528. Specific provisions relate to the mass
media in connection with the publicizing of proceedings which are
not covered by judicial confidentiality (art. 88, para. 1). The
media commit the offence of contempt if they reproduce items or
documents from ongoing cases, transmit unauthorized pictures or
sound recordings, or disclose the identity of the victim if he or
she is under 16 years of age (art. 88).
529. The Public are excluded if the judge considers
that Publicity would seriously harm personal dignity, public morality
or the normal course of the proceedings, and are admitted when reasons
warranting an in camera hearing no longer apply (art. 87, para.
2). Cases of sexual offences in which the victim is under 16 are
always held in camera (art. 87, para. 3). Sentence must always be
Pronounced at a public hearing (art 87, para. 4).
530. The principle of the presumption of innocence
is set out in article 32, paragraph 2, of the Constitution:
"Any person charged with an offence shall
be presumed innocent until his conviction has acquired the force
of res judicata, and he shall be tried in the shortest space of
time compatible with safeguards for his defence."
531. As noted with reference to article 10,
a person in custody awaiting trial is presumed innocent and his
treatment must conform to that principle, in accordance with article
209, paragraph 1, of the Prisons Act.
532. The inclusion of this principle in the
new Code of Penal Procedure stems chiefly from the following provisions:
(a) The elimination of situations in which the
rules of evidence are reversed. In accordance with article 243,
an official record which is drawn up by the authorities and under
the conditions stipulated in the article will be regarded simply
as information (para. 3), whereas under the present system it is
regarded as authoritative in the absence of evidence to the contrary
(1929 Code of Penal Procedure, arts. 166 and 169). Thus the legislature
endorsed the arguments for caution and removed this "statutory
inequity" for the accused person;
(b) The system of measures of constraint, which
entails a clear Preference for less restrictive measures (arts.
191 to 193 and 196 et seq., arts. 202 and 204);
(c) The abolition of the system which prohibited
bail for some offences considered to be more serious;
(d) Closing the case in the absence of sufficient
presumptions (arts. 277, para. 2, 279 and 308, para. 1);
(e) A guarantee of the principle of a full hearing
for the defence counsel during the trial.
533. With regard to time-limits, the Code establishes
innovative provisions to speed up the procedure and consequently
make for more effective access to law. The main features of these
(a) Strict regulation of time-limits (art. 103
(b) An obligation to inform the disciplinary
authorities of the reasons for failure to observe a time-limit even
if the procedure has been carried out in the meanwhile (art. 10);
(c) The introduction of a point of law to speed
up the procedure (art. 109);
(d) Simplification of the transmittal of documents
(art. 111 et seq.)
(e) Strengthening of the principle of continuity
of the hearing and strict regulation of time-limits and breaks.
Such is the case, for example, with an adjournment of a hearing
under regular procedure. It cannot exceed 30 days. A longer break
in the proceedings invalidates evidence already submitted (art.
328, para. 6);
(f) Restructuring of the appeals system (arts.
399 et seq.) and the admissibility of rejection in limine in some
cases stipulated by law (art. 420).
534. The matters dealt with in this paragraph
were the subject of a detailed statement on the law in force at
the time Portugal's initial report was submitted. Since the decree
law approving the new Code of Penal Procedure, which is to enter
into force on 1 June 1987, has recently been published in the official
gazette, reference to the guidelines contained in that text will
be made below.
535. This statement will follow the structure
of article 32 of the Constitution, concerning safeguards in criminal
proceedings. These provisions have undergone some changes as a result
of the review of the Constitution in 1982:
"Article 32 of the Constitution
"1. Criminal proceedings shall comprise
all necessary safeguards for the defence.
"2. Any person charged with an offence
shall be presumed innocent until his conviction has acquired the
force of res judicata, and he shall be tried in the shortest space
of time compatible with safeguards for his defence.
"3. The person charged shall have the right
to choose and be assisted by counsel at all stages of the proceedings.
The cases and stages in which such assistance shall be compulsory
shall be specified by law."
536. All rights of the person charged are set
forth in article 61 of the new Code of Penal Procedure:
"1. At each stage of the proceedings, in
the absence of legal provisions to the contrary the accused shall
in particular enjoy the following rights:
(a) To be present at the acts of the proceedings
which directly concern him;
(b) To be heard by the court or the examining
magistrate when they are taking measures or decisions which concern
(c) Not to be compelled to answer questions
asked by persons speaking during the trial that relate to acts imputed
to him or to the contents of previous statements."
537. An admission of quilt is now admissible
and it may be full and unqualified, partial, or subject to qualification.
The court must ascertain that it is a free admission, particularly
with regard to whether the act can be fully imputed to the accused
and with regard to the veracity of his confession.
(Continuation of article 61, paragraph 1, of
the new Code of Penal Procedure)
"(d) To choose his counsel or request the
court to appoint counsel for him;
(e) To be assisted by counsel throughout the
proceedings in which he takes part and, if he is held in custody,
to communicate with his counsel both publicly and Privately."
538. If security reasons so require, the discussion
shall be held within sight, but not within earshot.
539. The Prisoner has the opportunity of communicating
with his counsel even before being questioned for the first time
or if he is being held incommunicado, and this clearly shows the
extent of the right to be assisted by counsel.
540. Article 143, paragraph 3, should also be
"In cases of terrorism or violent or highly
organized crime the Public Prosecutor's Department may decide that
the Prisoner shall not communicate with anyone, other than his counsel,
before the first judicial examination."
541. The Constitutional Court considered this
matter, when it analysed the future Code of Penal Procedure, for
the purposes of monitoring the Code's constitutionality. At that
time, it stated that the right of the accused to be assisted by
counsel "does not include only the Physical presence of counsel
during the Proceedings, but also the right of the accused to communicate
542. In Decision 7/87, published in the Diário
da República on 9 February 1987, the Court ruled that the
initial draft of the rule was unconstitutional vis-à-vis
the safequard contained in article 32, paragraph 3, of the Constitution
(the right of the accused to be assisted by counsel). The rule was
543. Another measure which illustrates the extent
of the right to be assisted by counsel is the mandatory presence
of counsel at the prisoner's first examination (art. 64, para. 1
(a) and art. 141, para. 2), with the opportunity of requesting the
judge, at the end of the examination and without the accused being
present, to ask questions which are of interest in discovering the
truth (para. 6). Absence of counsel at that stage renders the case
null and void (art. 119 (c)). If the prisoner so requests, after
being informed of these rights, counsel may also be present during
any brief questioning by the Public Prosecutor's Department prior
to the judicial examination (art. 143, para. 2).
544. The presence of counsel is also mandatory
during an appeal (art. 64, para. 1 (d)). The counsel shall exercise
the rights of the accused recognized by law, apart from those which
the law reserves for the accused himself (art. 63). If counsel is
officially appointed, he may be replaced at the request of the accused
(art. 64, para. 2).
545. The Code sets forth the cases in which
the presence of counsel is mandatory. They include, inter alia,
all stages of the proceedings when the accused is deaf, mute, illiterate,
unfamiliar with Portuguese or under 21 years of age, or if the question
of his non-imputability or partial imputability is raised (art.
64, para. 1 (c)).
(Continuation of article 64, Paragraph 1, of
the new Code of Penal Procedure)
"(f) To take part in the progress of the
inquiry and the preliminary Investigation, providing evidence and
demanding any steps he believes necessary;
(g) To be informed of these rights by the judicial
authority or organ of the criminal police before which he is to
(h) To appeal, in conformity with the law, against
decisions unfavourable to him."
546. Article 92 of the Code is concerned with
the language used in proceedings and the appointment of an interpreter
for persons who do not understand or speak Portuguese. A suitable
interpreter will be appointed, free of charge, even if the presiding
judicial officer or one of the participants is familiar with the
language used by the person in question.
547. Article 93:sets forth the rules to be followed
in cases of persons who are deaf, dumb or deaf mutes.
548. The acknowledged importance of this principle
in law is clearly shown by the fact that reviews for confirmation
of foreign judgements will not be permitted if the person charged
was unfamiliar with the language used in the proceedings and was
not assisted by an interpreter (art. 37 (d)).
549. Under the new Code the presence of the
accused at the hearing is mandatory (art. 332, para. 1). The consequences
of his absence and a judgement by default are set forth in articles
332, 336 and 337.
Article 32 of the Constitution
"4. The entire investigation shall be within
the competence of a judge, who may, in circumstances laid down in
law, delegate to other persons elements of the investigation which
are not directly connected with fundamental rights."
550. Under article 17 of the new Code, the preliminary
investigation is carried out by the examining magistrate, who is
also responsible for committal for trial and for jurisdictional
formalities during the inquiry.
551. The examining magistrate, assisted by police,
heads the preliminary investigation (art. 288).
552. The law indicates which judicial steps
fall within the sole jurisdiction of a judge, during both the investigation
and the inquiry and, in the latter case, which steps way be ordered
or authorized by the judge alone. He alone is competent:
(a) To carry out the first judicial examination
of the prisoner;
(b) To order measures of constraint or bail
(c) To order searches in lawyers' offices, doctors'
surgeries or banks;
(d) To conduct the initial examination of the
contents of correspondence seized, in order to assess their importance
for the evidence.
553. As distinct from the law now in force,
the inquiry will become the usual procedure for indictment. The
preliminary investigation is optional and restricted to the following
(a) A check on omissions in charges by the Public
Prosecutor's Department, at the request of a private plaintiff;
(b) A request by the person charged to investigate
the acts of which he is accused, in public or private proceedings
(acts. 286 and 287).
554. The preliminary investigation is concluded
by the preliminary investigation debate", which is conducted
orally and in which both parties are heard (arts. 289 and 297).
After this, the magistrate decides whether or not to commit the
person to trial.
Article 32 of the Constitution
"5. Criminal proceedings shall be adversary
in nature and the trial and steps in the preliminary investigation
determined by law shall be governed by the principle that both parties
are to be heard."
555. As already stated, the principle behind
the present Code is to strike a balance between making the proceedings
as adversary as possible and retaining the principle of investigation,
which is embodied in the tradition of Portuguese criminal law, during
both the preliminary investigation and the trial.
556. Reference must now be made to two innovative
(a) The stage of the proceedings at which the
applicable penalty is determined, in the light of the personality
of the accused and the report submitted by social reintegration
services, has become discretionary (arts. 369 and 370). The law
even provides for an instance in the proceedings at which additional
evidence may be produced, in accordance with article 371, when required
to choose the nature and extent of the penalty;
(b) The principle of the possibility of discontinuing
criminal proceedings. This encompasses the provisions of articles
280 to 282.
557. The first of these innovations is the possibility
of closing a case if the law expressly stipulates that dispensation
or exemption from a sentence is possible and if it is found the
conditions are such that the accused way be exempted. Depending
on the stage in the proceedings, this decision is made by the Public
Prosecutor's Department after obtaining the agreement of the examining
magistrate, or by the examining magistrate himself, after obtaining
the agreement of the Public Prosecutor's Department and the accused.
558. The second innovation is the decision to
suspend proceedings temporarily if the offence is punishable by
a prison sentence of less than three years or by a penalty not involving
deprivation of freedom, in the conditions stipulated by law. There
is a sort of classification that is accompanied by certain injunctions
and rules of conduct. The decision to suspend proceedings is taken
by the Public Prosecutor's Department after obtaining the agreement
of the examining magistrate, and suspension may last for up to two
years. If the accused observes the injunctions and rules of conduct,
the case is closed and cannot be re-opened (art. 282).
Article 32 of the Constitution
"6. Any evidence obtained through torture,
coercion, violation of the moral integrity or security of the person
or the individual, or wrongful interference in private life, the
home, correspondence or telecommunications shall be null and void.
7. No case shall be withdrawn from a court which
has jurisdiction under existing law."
559. Juveniles under 16 cannot be charged under
criminal law (Penal Code, art. 19). Young people from 16 to 21 are
subject to a special penal system established in Decree-Law No.
401/82 of 23 September.
560. The special penal system relates only to
young people who can be charged (art. 1, para. 3), and it stems
from the rules governing the laws on rehabilitation or guardianship
for minors. This is reflected by the preference given to remedial
measures, the only kind introduced by the decree-law, in place of
prison sentences of up to two years, if such measures are shown
to be more favourable to the social rehabilitation of the juvenile.
If a prison sentence is applicable, the judge must reduce the sentence
in conformity with the general law if he has good grounds for believing
that it will make for social reintegration of the juvenile (art.
4). The subsidiary application of rules on the law on minors ("Guardianship
of Minors", Decree-Law No. 314/78 of 27 October) may also be
561. The Code of Penal Procedure requires the
mandatory presence of defence counsel at all stages of the proceedings
concerning persons under the age of 21 (art. 64, para. 1 (c)).
562. The summary procedure, a special, more
informal form of procedure, is not applicable to persons who have
not reached the age of 18 at the time the offence is committed (art.
381, para. 2).
563. Cases concerning sexual offences of which
the victim is under 16 are always held in camera (art. 87, para.
564. The right of appeal is safeguarded in the
Constitution (art. 32, para. 1), as is the right of the accused
to be assisted by counsel of his own choosing (art. 32, Para. 3).
Such assistance is mandatory during an appeal.
565. Significant changes are to be made in the
appeal system via-à-vis the law currently in force, including,
for example, the possibility of discussing an appeal in limine if
there is a defect as to reasoning or in clear cases of an inadmissible
appeal (art. 420); the possibility of the withdrawal of an appeal
(art. 415); and the subsidiary enforcement at the appeal hearing
of provisions concerning the hearing on first instance (art. 423).
566. This right is recognized under constitutional
law in article 29, paragraph 6, of the Constitution and it is embodied
in the Code in force.
567. The rules governing petition for review
are set forth in articles 449 to 466 of the new Code.
568. Compensation shall be granted in the decision
to acquit the accused (art. 462, para. 1) or may be determined on
enforcement of the sentence at the request of the applicant (art.
462, para. 3).
569. Sums paid at fines or costs of the proceedings
will also be reimbursed (art. 462, para. 1).
570. Judicial acts required during the appeal
proceedings will take precedence over any other services when the
convicted person has been imprisoned or interned (art. 466).
571. Suspension of the prison sentence or security
internment measure may be granted when the court has grave doubts
regarding the conviction and in the course of appeal proceedings
(art. 457, para. 2).
572. Under article 29, paragraph 5, of the Constitution,
no one may be tried more than once for the same offence.
573. It should be emphasized that Portugal has
also ratified the European Convention on Human Rights, which is
therefore in force in accordance with article 8 of the Constitution,
and that article 6 of the Convention recognizes the same rights
as those set forth in article 14 of the Covenant.
Nulla poena sine lege, nullum
crimen sine lege
574. The new draft of article 29 of the Constitution
upholds this provision of the Covenant. Paragraph 1 states:
"No one shall be convicted under criminal
law except by virtue of existing legislation making the act or omission
punishable, and no one shall be subjected to a security measure
involving deprivation of freedom for reasons that do not warrant
such a measure under existing legislation."
Paragraph 3 says:
"No sentences or security measures involving
deprivation of freedom shall be applied that are not expressly provided
for in existing legislation."
575. Among sentences involving deprivation of
freedom the new Penal Code introduces free-time detention (art.
44) i.e. detention at weekends, and semi-detention (art. 45). The
systems of probation (arts. 53 et seq.), admonition (art. 59), and
community service work (art. 60) have been introduced as Punishments
which do not involve deprivation of freedom. Changes have been made
in the system for suspension of sentence (arts. 48 et seq.), conditional
release (arts. 61 et seq.), and fines (arts. 46 and 47).
576. A relatively indeterminate sentence has
been introduced in the hope of solving the problem of accused persons
described as dangerous.
577. The general principle of article 65, which
reiterates article 30, Paragraph 4, of the Constitution applies
to accessory penalties:
"No sentence shall involve, as a necessary
consequence, the loss of any civil, labour or political rights."
This applies to such penalties as resignation
(art. 66), temporary suspension from duties (art. 67) and a prohibition
on engaging in other occupations or exercising other rights (art.
578. Security measures exist for insane persons
(arts. 91 et seq.) and mentally abnormal people facing charges (arts.
103 et seq.).
579. Furthermore, article 30 of the Constitution
"In cases of danger due to grave mental
disorder that cannot be treated in an open environment, security
measures involving deprivation or restriction of freedom may be
extended successively by judicial decision in each case, for as
long as the danger lasts."
580. Article 40 of the Penal Code establishes
an absolute limit for prison sentences, which must never exceed
25 years (para. 3).
581. The Constitution affirms that criminal
laws more favourable to the offender shall apply retroactively.
582. The principles of the legality (art. 1)
and the retroactivity of the criminal law more favourable to the
offender (art. 2) are also set forth in the Penal Code.
583. Analogy may not be used to characterize
an act as an offence, to define a state as dangerous or to determine
the appropriate sentence or security measure.
Right to recognition as a Person
before the law
584. Under the heading "Other personal
rights", article 26 of the Constitution sets forth a number
of the individual's inalienable rights namely the rights to personal
identity, civil capacity, citizenship, good name and reputation,
image and protection of privacy and of private and family life.
585. A Person may be deprived of citizenship
or subjected to restrictions on civil capacity only in the cases
and under the conditions laid down by law, and never on political
grounds (art. 26, para. 3).
586. A declaration of a state of siege or emergency
may never prejudice, inter alia, the right to civil capacity (Act
No. 44/86 of 30 September, concerning states of siege or emergency,
587. In accordance with paragraph 2 of article
26 of the Constitution, the law must establish effective safeguards
against the misuse of information concerning persons and families
or any use in a manner inconsistent with human dignity.
588. Article 70 of the Civil Code provides for
legal protection of individuals against any unlawful attack or threat
of attack on their security of person or their existence as a person.
Apart from any civil liability involved, an individual who is attacked
or threatened with attack in such a way can demand that appropriate
steps be taken to avert or alleviate the effects of the attack.
589. Article 71 of the Civil Code goes on to
state that the rights of legal personality are protected even after
a person's death. Voluntary restrictions on the exercise of legal
personality are null and void if they are contrary to the principles
of public order (art. 81).
590. For its part, the Penal Code provides for
protection of some of these rights, namely offences against honour
(arts. 164 et seq.) and against privacy (arts. 176 et seq.).
The rights of the person
591. This is the subject-matter of article 26
of the Constitution, cited above.
The right to protection of privacy and family
592. This right is safeguarded in two ways;
the right to prevent third parties from obtaining information and
the right to prevent disclosure of information on one's private
and family life. In this respect, under paragraph 2 of article 26
the law is required to establish "effective safeguards against
the misuse of information concerning persons and family or any use
in a manner inconsistent with human dignity."
593. Other closely related constitutional provisions
are those set out in article 34 (Inviolability of home and correspondence)
and article 35 (Use of data processing).
594. Article 35 recognizes the rights of citizens
to information about them in data banks and the use for which it
is intended and that they are entitled to require the information
to be corrected and updated (para. 1) ; that third parties are forbidden
access to files containing personal data and interconnection of
such files and transboundary flows of data are also forbidden, save
in exceptional cases as provided for in the law (para. 2) that the
processing of personal data is prohibited, except in the case of
non-identifiable data for statistical purposes (para. 3) ;.and that
a person shall not be given one single national identification number
595. As already mentioned, this matter is dealt
with in the Penal Code, in particular in the chapter on offences
against privacy (arts. 176 et seq.). Article 181 is concerned with
interference with privacy by means of data processing. In this connection,
paragraph 2 states:
"Anyone who unlawfully processes or orders
the processing of personal data concerning political, religious
or philosophical convictions and other private information shall
be liable to deprivation of freedom for a maximum of two years."
596. Paragraph 1 of the article concerns other
computer activities which interfere with one's private life. This
article derives from the provisions of the Council of Europe's Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data, which has already been signed by Portugal.
597. There are also regulations on the protection
of access to certain data and to classified information held by
bodies established under Act No. 30/84 of 5 September, which is
the framework-law on Portugal's official data processing system.
598. This data system is essentially intended
to provide the necessary information to protect national independence
and safeguard internal security.
599. The information services are monitored
by the Inspection Board, which is elected by the Assembly of the
Republic and has its own powers of inspection (art. 7, para. 1).
600. The restrictions on the updating of the
services relate to compatibility with the constitutional system
of rights, freedoms and personal safeguards, in particular vis-à-vis
data processing, including all restrictions established by law for
the defence of these rights (arts. 3 to 5, arts. 23 et seq.).
601. Data can be erased or corrected at the
request of persons concerned if the data on them are considered
inaccurate, improperly obtained or an infringement of their rights,
freedoms and safeguards (art. 27, para. 2).
602. Civil servants and civilian or military
personnel carrying out police duties require prior authorization
from the Government in order to gain access to data held by the
information services, since such data may be used only to protect
democratic legality or to prevent and suppress crime (art. 5).
603. Civil servants are bound by the duty to
observe professional secrecy and this applies to all persons who
have gained access to classified material held by the information
services (art. 28). The law establishes penalties for breaches of
these legal obligations and duties (art. 30).
604. Furthermore, protection is assured by arrangements,
in terms of matter and organization, under four legal texts dated
4 July 1985, subject namely Decree-Law No. 223/85, establishing
the fundamental principles; Decree-Law No. 224/85, on the structure
of the Strategic Defence Information Service; Decree-Law No. 225/85,
on the structure of the Security Information Service; Decree Service,
which is the only body within the Information Service of the Republic
competent to produce information intended to guarantee internal
security and prevent sabotage, terrorism, espionage and acts that
could harm or destroy the rule of law (art. 2); and Decree-Law No.
226/85, on the re-structuring of the Military Information Service
605. Particularly important in this connection
are the provisions concerning access to and protection of classified
material, the dividing line between State secrets and professional
confidentiality, and the criteria governing the selection of personnel.
606. The fundamental principles of the activities
of the services in the Information System of the Republic (Decree-Law
No. 223/85 of 4 July) include the principle of specialization in
the collection and processing of. data concerning the specific functions
of each service (art. 1); the principle of inter-service co-operation
outside the context of their specific functions (art. 2); the autonomy
of data centres, so that link-ups between them are forbidden (art.
4); state secrets (art. 5); the duty to observe professional confidentiality
(arts. 6 and 7); and monitoring of the activities of the information
services, which is the responsibility of judges vested with their
statutory rights and duties (art. 8).
607. As far as Police records are concerned,
Decree-Law No. 39/83 of 25 January follows the principles of the
new Penal Code and the system is based on two fundamental vectors:
(a) Adaptation to the limitations imposed by
the new Penal Code on the effects of penalties. Article 3 defines
the subject-matter of criminal records. Articles 19 and 20 concern
full invalidation of some decisions and rehabilitation of the person.
Articles 21 and 22 provide for temporary invalidation (rehabilitation
(b) Defining the conditions for access to data
contained in the files (arts. 9 to 14), for example by imposing
stricter conditions for a request submitted by a third party (art.
10, para. 2).
608. A special system 1s established for criminal
records for minors (arts. 23 et seq.).
609. The law on procedure deals with indecent
searches. In the law currently in force, this matter is covered
by articles 178 et seq. of the Code of Penal Procedure and by Decree-Law
No. 605/75 of 3 November (art. 2, as redrafted under Act No. 25/81
of 21 August).
610. In the new Code, searches are governed
by the terms of articles 171 to 173.
611. Searches must respect the dignity and,
as far as possible, the sense of propriety of the person examined
(art. 172, para. 2).
612. The law also indicates which persons may
be present when a search is carried out. The person to be searched
may be accompanied by somebody he trusts it delay does not involve
any danger. Hence he must be informed of this option granted to
him by law (art. 172, para. 2).
613. Anyone wishing to avoid or prevent a search
that is deemed necessary may be compelled to submit to it by the
competent judicial authority (art. 172, para. 1).
614. The competent judicial or the police authority
way prevent persons present at the search from leaving and, if necessary,
use force to compel them to remain until the search is completed
and for as long as their presence is required (art. 173).
615. These acts may be carried out by any officer
of the law if there is a danger of losing evidence and if the above-mentioned
authorities are not present.
616. Articles 174 and 175 concern body searches.
Such searches are made on the decision of the competent judicial
authority, which, whenever possible, should direct the search (art.
174, para. 3). The following cases are exceptions (para. 4):
(a) Terrorism or organized crime, if there are
well-founded presumptions that a crime involving serious risk to
the life or integrity of persons is about to be committed; the examining
magistrate must be informed immediately, in order for the search
to be valid (para. 5);
(b) Written evidence of the consent of the person
(c) in flagrante delicto, if the offence is
punishable by a sentence of imprisonment.
In these exceptional cases, searches may be
carried out by the criminal police, under conditions defined by
617. The criminal police may also carry out
searches without prior authorization, subject to a subsequent cheek
by the judicial authority, in the event of imminent escape and in
dealing with suspects who, for well-founded reasons, are believed
to be linked with the crime and may be important to the evidence,
if there is a danger of losing them (art. 251).
618. The conditions required for examinations
and searches are set out in the law (arts. 172 and 174 respectively).
619. In the procedure for administrative offences,
evidence drawn from the individual's private life, from body searches
and blood analyses is admissible only with the consent of the person
concerned (Decree-Law No. 433/82 of 27 October, art. 42, para. 2).
The right to inviolability of the home
620. This right is laid down in paragraphs 3
and 4 of article 34 of the Constitution. Restrictions on the right
to inviolability of the home may be ordered only by the competent
judicial authority, in the cases and in the forms laid down by law
(para. 2). This right is fully guaranteed at night, unless the person
concerned gives his consent (para. 3).
621. Hence, night searches are forbidden, unless
the owner of the building gives his consent (Code of Penal Procedure.
art. 204, and Decree No. 605/75 of 7 November, art. 2, both texts
being still in force).
622. The new Code of Penal Procedure forbids
searches of an inhabited house or outbuilding of such a house, between
9 p.m. and 7 a.m. ; otherwise, the evidence is rendered invalid
(art. 177, para. 1) .
623. Entry to anyone's home may be ordered only
by the court. However, the law states that in the above-mentioned
cases of terrorism, violent crime, imminent perpetration of a crime
endangering the life or integrity of any person or when there is
written evidence of the consent of the person concerned, searches
may be ordered by the Public Prosecutor's Department or conducted
by the criminal police. In the latter case, the court must immediately
be informed of such searches in order for them to be validated (art.
177, para. 2).
624. Special conditions govern searches conducted
in a lawyer's office, doctor's surgery (art. 177, para. 3) or public
health care establishment (art. 177, para. 4).
625. Infringements of this right are stated
with the appropriate penalties in article 428 for cases of abuse
of authority and, in general, in articles 176 and 177 of the Penal
Right to the inviolability of correspondence
626. Article 34, paragraph 4, of the Constitution
states that "Any interference by the public authorities with
correspondence or telecommunications, apart from the cases laid
down by the law on criminal procedure, shall be prohibited".
627. Criminal law deals with this matter in
articles 182 (incrimination) and 183 (aggravation), apart from cases
where the person responsible is an employee (art. 434) or a former
employee (art. 435) of the postal or telecommunications services.
628. Reference should be made, however, to article
12 of Decree-Law No. 90/83 of 16 February, concerning the inspection
of correspondence of young persons placed in centres of detention.
This article provides that correspondence sent by or addressed to
such persons may be inspected in order to prevent the entry of prohibited
objects, the establishment of criminal relations or the commission
of acts jeopardising the security of the detention centre.
629. Other restrictions apply to the inspection
of prisoners' correspondence and telecommunications, as laid down
in the Prisons Act (Decree-Law No. 265/79, arts. 40 et seq.), although
they entail an obligation to observe confidentiality (act. 45, para.
630. This matter is regulated in the procedural
law still in force (Code of Penal Procedure, art. 210) and provided
for in the new Code (arts. 178 to 186), which establishes a more
strict régime for the inspection, interception or seizure
of correspondence, which the examining magistrate alone can order.
Seizure or any other means of inspecting correspondence between
the accused and his counsel is prohibited, except where the judge
has good reason to believe that such correspondence is material
to the offence (art. 179, para. 2).
631. A judge who has ordered or authorized the
seizure of correspondence shall be the first to take cognizance
of its content and determine whether it is important as evidence.
If it is not, he shall arrange for the correspondence to be returned
to the riqhtful owner. The magistrate shall remain bound by the
requirement of confidentiality in respect of any material of which
he has taken coqnizance and which is not relevant as evidence (art.
179, para. 3).
632. Articles 180 and 181 govern cases of seizure
in the office of a lawyer or physician and in a banking institution.
633. Articles 187 to 190 deal in general with
the régime governing interference with communications by
telephone or by any other technical means.
634. The procedure concerning administrative
offences permits neither interference with correspondence or telecommunications,
nor the use of evidence that is a violation of professional confidentiality
(Decree-Law No. 433/82 of 27 October, art. 42, para. 1).
The requirement of confidentiality
635. This matter is dealt with in article 217
of the Code of Penal Procedure, which is still in force, and is
covered by several legal provisions, the most recent concerning
the High Authority against Corruption (Act No. 45/86 of 1 October,
art. 7) and the services in the Information System of the Republic
(Act No. 30/84 of 5 September, art. 28), and by provisions of the
Penal Code. This requirement relates to facts or matters which have
come to the attention of public officials in the exercise of their
Again the legal régime for bank secrecy
is established in Decree-Law No. 2/78 of 9 January, but should also
be viewed in relation to the duty of co-operation with the High
Authority, as prescribed by article 7, paragraph 2, of Act No. 45/86
of 1 October, and with reference to the struggle against illegal
drug trafficking (Decree-Law No. 430/83 of 13 December, art. 50).
637. Violation of a public official's duty of
professional secrecy for the purpose of unlawful gain, either for
himself or for a third party, or with the intention of causing prejudice
to the public interest or to third parties is punishable under article
433 of the Penal Code. Proceedings are taken only where a complaint
is lodged by the supervisory body or by the victim.
638. The new Code of Penal Procedure introduces
innovations in the regime governing confidentiality. Provision is
made for the possibility of ordering testimony, notwithstanding
the duty or tight to observe confidentiality, by decision of a judicial
authority higher than the one in which the matter was raised or
in the Supreme Court, sitting in plenary session of the criminal
chambers, in cases where one of the grounds laid down in article
185 of the Penal Code for exclusion of the illegal nature of the
act is applicable and after hearing the body representing the profession
which is subject to professional secrecy. The only exception concerns
the seal of the confessional.
Freedom of expression, reliqion
639. Portugal is a mainly Catholic country.
Catholicism, throughout much of its history and until the establishment
of the Republic in 1910, had the prerogatives of the official religion.
640. After the Act concerning the Separation
of Church and State in 1911, Catholics experienced considerable
curtailment of various aspects of their freedom of action, at a
time when religious orders were prohibited and religious associations
virtually ceased to exist. And despite all the reactions, it was
only 30 years later - with the celebration of the Agreement with
the Holy See in 1940 - that the Catholic Church once again acquired
legal personality and autonomy under Portuguese law.
641. The principle of religious freedom was
thus recognized in Portuguese law, embodied successively by several
constitutions, and gained an important place under the Act concerning
the Bases of Religious Freedom in 1971. Under the Act, several of
whose provisions are still in force, the State recognizes and guarantees
religious freedom and provides adequate legal protection for religious
denominations (base 1). In emphasizing the principle of separation,
the Act grants religious denominations the right to equal treatment,
except as regards the differences imposed by their varying representativeness
(base II). With regard to religious convictions and worship, the
Act states that all persons are entitled to:
(a) Have or not have a religion, change denomination
or abandon their previous denomination, and act or not act in accordance
with what is prescribed by their denomination;
(b) Express their convictions;
(c) Manifest orally, in writing or by other
means the doctrine of the religion to which they adhere;
(d) Perform acts of worship, privately or in
public. in accordance with their religion (base III).
Further, the Act provides for the right of assembly
for public worship and establishes the régime governing religious
denominations and their recognition by the State.
The Constitution of 1976
642. Freedom of conscience, religion and worship
was strengthened by the entry into force of the 1976 Constitution,
which guarantees first and foremost the inviolability of this freedom
(art. 41, para. 1). Moreover, it dots so in such express terms,
particularly as far as the first two aforementioned rights are concerned
- the right to freedom of conscience and religion - that the Constitution
does not allow them to be suspended even in a state of siege. Article
19, paragraph 4, provides that a declaration of a state of siege
may in no circumstances affect the right to life, integrity, identity,
civil capacity and citizenship of the person, the non-retroactive
nature of criminal law, the right of accused persons to a defence
and freedom of conscience and religion.
643. This same provision is reproduced by Act
No. 44/86 of 30 September concerning the régime governing
states of siege or emergency (art. 2).
644. In reaffirming the provisions of previous
constitutions and even of Act No. 4/71, mentioned earlier, article
41, paragraph 2, provides that no one shall be prosecuted, deprived
of rights or exempted from civil obligations or duties because of
his convictions or religious practices. ' The safeguard of non-prosecution
is a consequence of the freedom of religion set out in the previous
paragraph of the article. On the other hand, non-deprivation of
rights, guaranteed by this provision, is a consequence of the constitutional
principle of the equality of citizens before the law (art. 13, para.
2). It is worth pointing out that the legislature wanted to embody
the above-mentioned safeguards explicitly in a single provision.
645. Article 41, paragraph 3, states that no
one shall be questioned by any authority about his convictions or
religious practices, except for the collection of statistical data
that cannot be identified individually, and no one shall be prejudiced
by refusal to reply. This important provision was introduced by
the Constitutional Amendment Act of 1982. It represents a step forward
in protecting persons against any injustice or discrimination on
religious grounds. The Act concerning the Bases of Religious Freedom,
unlike this provision, did not grant a subjective right not to be
questioned about matters of religion. It simply provided a guarantee
that a person's refusal to reply did not constitute an Illegal act.
The Constitution thus set forth a real right not to be questioned.
And this provision is even more important in that it applies to
both public and private entitles.
646. The churches and religious communities
are separate from the State and are free to organize and exercise
their own ceremonies and worship (art. 410 para. 4). This principle,
so dear to republican ideals was to be irreversibly set forth in
the Constitution and the legislature did this by treating the separation
of the churches from the State as a constitutional principle not
open to review (art. 290 (c)).
647. The corollary to this principle is the
non-denominational nature of the State on the one hand, and the
freedom of organization and independence of the churches on the
other hand. The first aspect - denominational neutrality -relates
directly to the constitutional prohibition on both religious interference
with the public authorities and on any religious functions or duties
by such authorities. This principle underlies the requirements of
article 43, Paragraph 2 that public education shall not be denominational
and of article 51 paragraph 3 - that the political parties shall
be prohibited from adopting religious symbols.
648. The second aspect - the freedom of organization
and independence of the churches - is closely tied in with the prohibition
on any State interference except where, in Its law-making capacity,
the State regulates the freedom of organization and private association
and the right of assembly and demonstration or other instrumental
rights of freedom of worship.
649. The Constitution safeguards freedom of
religious instruction within a given religious denomination and
the use of the denomination's own means of public information for
the pursuit of its activities (art. 41, para. 5).
650. We have looked at article 41 of the Constitution,
the most important provision concerning freedom of conscience, religion
and worship. The importance attached to this matter led the legislature
to include, in other articles, certain express provisions on religious
freedom. To illustrate this point, it will be sufficient to cite
the following articles of the Constitution:
"2. No one shall be privileged, favoured, injured, deprived
of any right or exempted from any duty because of his ... religion
"3. Compute r technology shall not be used
to process data relating to a person's ... religious beliefs
"1. The freedom to learn and teach shall
2. The State shall not arrogate to itself the
right to plan education and culture in accordance with any philosophical,
aesthetic, political, ideological or religious guidelines."
"3. Without prejudice to the philosophy
or ideology of their programmes, political parties shall not use
names that contain terms directly related to any religion or church
or use emblems which may be mistaken for national or religious symbols."
"4. Trade union associations shall be independent
of employers, the State, religious denominations, political parties
and other political associations. Safeguards for such independence
shall be laid down by law as the foundation of the unity of the
There are, too, other Provisions which, although
not explicitly establishing safeguards or rights of a religious
nature, implicitly cover these matters. This applies to the provisions
concerning freedom of expression and information and freedom of
The principle of separation of the churches
and the State and the special status accorded to the Catholic reliqion
651. Article 41, paragraph 4, of the Constitution
provides that the churches and religious communities shall be separate
from the State. The non-denominational nature of the State of Portugal
stipulated in this Provision on the one hand guarantees no interference
by religion in the orqanization and government of the State or public
authorities, and on the other hand, prohibits the latter from exercising
religious functions or duties or using religious rites or symbols
in official ceremonies. This principle forms the basis of the constitutional
Provisions which guarantee the non-denominational nature of public
education and which prohibit the adoption of religious symbols by
the political parties.
652. Article 43, paragraph 2, provides that
the State shall not arrogate to itself the right to plan education
and culture in accordance with any philosophical, aesthetic, political,
ideological or religious guidelines. And article 51, paragraph 3,
states that without prejudice to the philosophy or ideology of their
programmes, political parties shall not use names that contain terms
directly related to any religion or church or use emblems which
may be mistaken for national or religious symbols.
653. The re1igious neutrality of the State of
Portugal as we have seen, dates from the establishment of the Republic
and was laid down by the 1911 Act of Separation of the Church and
State. The 1976 Constitution once again includes and even reinforces
this provision, at the same time guaranteeing that it cannot be
reversed in future revisions of the Constitution (art. 290 (c)).
654. Although non-denominational, the Portuguese
State nevertheless accords special status to the Catholic religion,
a special status that stems above all from the historical importance
of this religion. Until the establishment of the Republic, as has
already been pointed out, Portugal was a State which accepted Catholicism
as the official religion. However, the Separation Act of 1911, while
recognizing the principle of freedom of conscience and religion,
prohibited religious instruction in schools, including even private
schools, and placed religious associations under the protection
of the State. The difficult situation in which the Catholic Church
was placed vis-à-vis the State by virtue of this legislation
was overcome only with the conclusion of the Agreement with the
Holy See. The agreed provisions show that the Portuguese State has
not only guaranteed religious freedom to the Catholic Church through
this instrument, but has also taken into consideration the very
special importance Catholicism has always had in the life of the
Portuguese community. The special status enjoyed by the Catholic
Church does not, however, conflict with the principle of religious
freedom recognized by the State in respect of any other religion.
Indeed, under Act No. 4/71, religious denominations have the right
to equal treatment (art. 2, para. 2), a principle which is expressly
embodied in the Constitution itself (art. 13, para. 2).
655. The protection of persons against religious
intolerance is also guaranteed by criminal legislation. The new
Penal Code approved in 1982 has a section on offences against religious
sentiments (arts. 220 to 224). Some of these articles correspond
to the provisions already established by a decree dating from the
establishment of the Republic. This is the case for the offences
of religious coercion (art. 221), prevention or disturbance of an
act of worship (art. 222) and injury or abuse of a minister of religion
(art. 224). However, other situations, concerning respect for religious
convictions and worship, have been specifically provided for in
the new Penal Code. This is true of offensive behaviour towards
religious convictions, functions or worship.
656. In accordance with article 220 of the Penal
Code, any person who submits another to public abuse or ridicule
in an objectionable or offensive manner on account of his convictions
or religious functions shall be punished by a term of imprisonment
of one year or more and by a maximum fine equivalent to 100 days'
minimum wage. The same penalty shall be incurred by any person who
profanes a place of worship or object of religious veneration. Under
article 223 of the Code, the same penalty shall be applicable to
any person who publicly ridicules an act of religious worship. Moreover,
any attempt to commit either of these two offences shall be punishable.
657. Decree-Law No. 437/75 of 16 August, concerning
the legal régime governing extradition, provides that extradition
shall not be allowed if there are grounds for believing that it
is being requested "for the criminal prosecution of a person
on account of his ... religion".
Right to conscientious objection
658. The Constitution of the Portuguese Republic,
since the revision in 1982, recognizes conscientious objection In
a broad sense and it is no longer limited to the military field
as in the earlier version (art. 41, para. 6). The new version thus
grants the right to exemption from obligations and from the performance
of acts which are contrary to a person's conscience. It is a matter
for the law, however, to regulate this right. As a fundamental right,
the Constitutional requirement imposes an obligation on the competent
legislative bodies to legislate in this area, failure to do so resulting
in =constitutionality by omission, and makes it incumbent upon the
competent authorities to take measures to safeguard the exercise
of this right before the regulations are finalized.
659. As regards conscientious objection to military
service, article 11 of the National Defence Act (Act No. 29/82 of
11 December) defines objectors as citizens who for religious, moral
or philosophical reasons cannot legitimately, in accordance with
their convictions, use means of violence of any kind against their
fellow man, even for the purpose of national, collective or private
defence, and who have been recognized as objectors under the Act
defining the conscientious objector status (para. 1).
660. Conscientious objectors must, however,
perform a civilian service which is as long and exacting as armed
military service (Decree-Law No. 91/87 of 17 February governs the
performance of this public service).
661. Act No. 6/85 of 4 May adopts this same
concept of conscientious objector and defines objector status. This
Act states that, conscientious objectors shall enjoy all the rights
and shall be subject to the same duties as those laid down by the
Constitution and by the law in respect of all citizens, in so far
as they are not incompatible with the status of conscientious objector
662. The right to conscientious objection includes
exemption from military service, in time of peace or war, and requires
conscientious objectors to perform a civilian service suited to
their situation (art. 4). The competent authorities must take account
of the interests, capacity for abnegation and occupational aptitudes
of the conscientious objector in defining the tasks of the civilian
service and in assigning specific functions to each conscientious
objector. In defining the tasks and assigning the functions to be
performed as part of civilian service, the preferences indicated
by the Person concerned should be taken into consideration.
663. The régime governing remuneration
and social security for conscientious objectors shall be established
in strict accordance with the provisions applicable to compulsory
military service (art. 6).
664. The Act governing the basic principles
of the educational system was issued very recently (Act No. 46/86
of 14 October). As regards access to education the Act states that
all Portuguese citizens are guaranteed freedom to learn and teach,
with tolerance for all possible choices, subject in particular to
the following principles:
(a) The State shall not arrogate to itself the
right to plan education and culture in accordance with any philosophical,
aesthetic, political, ideological or religious guidelines;
(b) Public education shall not be denominational;
(c) The right to establish private and co-operative
schools shall be safeguarded.
Religious assistance to prisoners
665. The Portuguese State has always endeavoured
to provide religious assistance to Prisoners, in application of
the principles formulated in 1955 by the first United Nations Congress
on the Prevention of Crime and the Treatment of Offenders.
666. This safeguard, established since the penitentiary
reform of 1936, was once again set out in Decree-Law No. 265/79
of 1 August, concerning the restructuring of the services responsible
for applying measures involving deprivation of freedom. This decree-law
ensures moral and religious assistance for prisoners, regardless
of their convictions. For the time being, in view of the specific
situation in Portugal, where, as we have already pointed out, the
large majority of the population is Catholic, by virtue of the 1940
Agreement with the Holy See the safeguard of religious assistance
has been qranted to prisoners who are Catholics.
667. Decree-Law No. 268/81 of 16 September,
which approved the orqanization of the penitentiary services, also
made specific provision for a service to provide religious assistance
in penitentiary institutions.
668. Finally, Act No. 79/83 of 9 February defines
the status of religious workers of the Catholic Church and their
legal position, especially as regards their work in penitentiary
institutions. Catholic religious assistance is therefore provided
in these institutions by chaplains of the Catholic Church designated
as religious workers (art. 1). These workers, nominated by the'
bishop of the local diocese and appointed by the Minister of Justice,
provide spiritual assistance to Catholic detainees and all prisoners
who expressly request their assistance (art. 4). In the exercise
of their mission, religious workers are required to perform religious
services and provide detainees with any other religious assistance.
The internal regulations of the institution must allow complete
freedom for the exercise of this activity (art. 5).
669. The decree-law further governs aspects
relating to the rights, powers and duties of religious workers in
the exercise of their functions, at the same time safeguarding their
position of independence from the administrative authorities.
670. The Constitution also deals with freedom
of cultural expression in article 42, to which reference was made
in Portugal's initial report (CCPR/C/6/Add.6, para. 18.4). It should
be pointed out, however, that a new Copyright Code has since been
published (Decree-Law No. 63/85 of 14 March, ratified by Act No.
4/85 of 17 September). This new law has, as indicated in the preamble,
taken account in particular of the institutionalization of democracy,
improvements in copyright law at the international level and international
conventions since incorporated into Portuguese law, as well as the
needs created by advances in communications and reproduction.
671. The earlier legislation has thus been modified
in regard to the administration of copyright and contracts for the
utilization of literary or artistic works, specifically publishing
contracts and translators' rights to the same protection of their
work as is enjoyed by the authors translated.
672. Under article 1, works are intellectual
creations in the literary, scientific or artistic field, regardless
of their outward form, which by virtue of this fact are protected,
and, as such are the rights of their authors. Copyright, under article
12, is recognized independently of registration, certification or
any other formality. It covers rights of a patrimonial and moral
nature (art. 9). Under article 31, Portuguese law alone can determine
the protection to be afforded, unless the work is subject to a contrary
international convention which has been ratified or approved. AS
a rule, in the absence of any special provision, copyright lasts
for 50 years after the death of the creator of the work, even in
the case of a work released posthumously (art. 35).
673. Title IV of Act No. 45/85 deals with infringements
and protection of copyright and related rights. It covers the offences
of usurpation and counterfeiting (arts. 195 and 196), violation
of moral right (art. 198), economic exploitation of the work usurped
or counterfeited (art. 199), prosecution (art. 200), the confiscation
and loss of items used to commit the offence and liability (art.
Freedom of expression and information,
freedom of the press
and public information media
674. Since it was amended, the Constitution
provides for these freedoms in articles 37 to 40.
Freedom of expression and information
675. Article 37 states that:
"1. Everyone shall have the right freely
to express and make known his thoughts by words, images or any other
means, and also the right to inform, to obtain information and to
be informed without hindrance or discrimination.
"2. The exercise of these rights shall
not be prevented or restricted by any type or form of censorship.
"3. Offences committed in the exercise
of these rights shall be punishable under the general principles
of criminal law, the courts of law having jurisdiction to try them.
"4. The right of reply and rectification
and the right to compensation for injury suffered shall be equally
and effectively guaranteed to all natural and juridical persons."
676. Freedom of the press is recognized by article
38 of the Constitution, which underwent several modifications at
the time of the 1982 constitutional amendment. In the new version,
paragraph 2 of this article establishes that:
"Freedom of the press shall involve from
of expression and creation for journalists and literary contributors
and a place for the former in giving ideological orientation to
information organs not belonging to the State, to political parties
or to religious groups, without any other sector or group of workers
having the power to exercise censorship or prevent free creativity."
And paragraph 3 recognizes that:
"Freedom of the Press shall involve the
right of journalists to elect editorial councils, to access to sources
of information and to protection of their professional independence
and confidentiality in accordance with the law."
Freedom of the press involves the right to found
newspapers and any other Publications without any prior administrative
authority, any security or qualification (para. 4). Paragraph 6,
furthermore, contains the requirement that no administrative or
fiscal system credit policy or foreign trade policy shall affect
freedom, of the press and the independence of information media
from Political and economic interests.
677. Article 39 requires public information
media belonging to the State and to other public bodies to be independent
of the Government and administrative and other public authorities,
and guarantees the possibility of expressing and comparing various
schools of thought. To safeguard compliance with these provisions,
a Public Information Council was established with powers to shape
overall guidelines to respect ideological pluralism (Act No. 23/83
of 6 September).
678. Freedom of the press and public information
media may be subject to restrictions imposed on account of a state
of siege or emergency under the conditions specified by the law
(Act No. 44/86 of 30 September, art. 2, para. 2 (d)). These restrictions
concern the suspension of press publications, radio and television
broadcasts and shows. These shall in no case be subject to prior
censorship (art. 2, para. 2 (b)). Infringement of these rights under
an unconstitutional or illegal provision gives rise to the right
to compensation (art. 2, para. 3).
679. Offences committed during a state of siege
which are directly related to the circumstances of the declaration
of such a state of siege and which are contrary to the right to
information and security of communications, inter alia, shall be
treated as essentially military offences and, accordingly, shall
be subject to military jurisdiction.
680. Portugal's initial report referred to several
provisions of the Press Act currently in force, and in particular
to those concerning criminal responsibility for offences involving
abuse of freedom of the press and the effects of a conviction on
a criminal charge or of a repeated offence. The legislative authorization
in respect of penal procedure committed the Government to reformulating
the provisions of the Press Act in connection with the entry into
force of the new Code of Penal Procedure (art. 6, para. 2).
681. The new Code, in fact, contains provisions
relating to the new régime for publicizing criminal proceedings,
more particularly by the mass media (art. 88) (see the comments
on art. 14).
682. It is interesting to see how these constitutional
principles are reflected in the legislation concerning the status
of radio and television broadcasting, which were examined at the
time of the preparation of the two reports submitted by Portugal
to the Committee on the Elimination of Racial Discrimination (CERD/C/101/Add.
8 and CERD/C/126/Add.3).
683. Act No. 75/,79 of 29 September, modified
by Decree-Law No. 23/82 of 19 August, regulates television broadcasting.
684. Article 3 of the Act states in particular
that the "objectives of radio and television" (para. 1
(c)) must be to:
"Contribute to strengthening knowledge
and understanding of Portugal in the world and to broadening relations
with all other peoples, especially Portuguese-speaking peoples,
as well as links of solidarity with emigrant communities."
685. Article 5 (para. 1), concerning "freedom
of expression and information", states that:
"Freedom of expression of thought on radio
and television shall be an integral part of the fundamental right
of citizens to free and pluralistic information which is essential
to democracy, the protection of peace
686. This right to free and pluralistic information
naturally presupposes freedom of expression of thought by those
who convey information by television, as well as the right to inform
and to be informed, without impediment or discrimination, in keeping
with the principles of information set forth in the Constitution
of the Republic.
687. Article 6 of the Television Act deals with
general programming and affirms in particular (para. 2) that:
"Radio and television programming shall
be organized in such a way that it respects ideological pluralism
and allows free expression and comparison of the various schools
of thought, as well as sound and objective information".
688. Further, article 7 of the Act deals with
prohibited programmes, stating that:
"It is prohibited to broadcast programmes
or messages which:
(a) Are an incitement to crime or violate fundamental
rights, freedoms and safeguards, especially because of their spirit
of intolerance, violence or hatred."
689. Lastly, attention should also be drawn
to Article 52 of the Act, which deals with international co-operation
and trade (para. 1):
" The Government shall facilitate the participation
of radio and television in International institutions, particularly
those aimed at promoting and protecting freedom of expression of
thought and mutual solidarity and understanding between peoples
by this means of public communication, and shall foster the accession
to and conclusion of international conventions in these areas."
690. This shows the concern to protect television
against any possible political, ideological or other manipulation.
To this end article 29, paragraph 1, of the Television Act provides
specifically that offences committed with the aid of television
shall be punishable in accordance with the legal régime applicable
to offences involving abuse of freedom of the press. The legislation
applicable to such offences will be discussed later.
691. The Press Act, approved by Decree-Law No.
85-C/75 of 22 February, specifies in article 1 that:
"1. Freedom of expression of thought by
the press, as an integral part of the fundamental right of citizens
to free and pluralistic information, is essential, to the practice
of democracy, to the protection of peace and to the political, social
and economic progress of the country.
"2. The right to information includes the
right to inform and the right to be informed.
"3. The right of the press to inform includes,
in addition to freedom of expression of thought:
(a) Freedom of access to official sources of
(b) A guarantee of professional confidentiality;
(c) Freedom of publication and broadcasting;
(d) Freedom of enterprise;
(e) Freedom of competition;
(f) A guarantee of the independence of the professional
journalist and his participation in shaping news publications.
"4. The right of citizens to be informed
is safeguarded in particular by means of:
(a) Anti-monopoly measures;
(b) Publication of the editorial position of
(c) Identification of advertising;
(d) Admission of the right of reply;
(e) Access to the Press Council."
The right of reply and access to the Press Council
are therefore two ways by which all citizens; are guaranteed the
right to be informed.
692. The Press Council has a very special function.
First regulated by article 17, paragraph 4, of the Press Act, its
statutes were later revised by Act. No. 31/78 of'20 June. The Council
functions under the Assembly of the Republic as an independent body
(art. 1, para. 1, of the Act) and is responsible, among other things,
"(a) The Independence of the press from
Political and economic interests, inter alia through measures such
as combating monopolies in this area;
(b) The adoption of a general approach that
respects ideological pluralism, permits the expression and comparison
of the various schools of thought., ensures a sound and objective
press and prevents the advocacy or propaganda of Fascist ideology
or of any other ideology which is likewise contrary to democratic
freedoms and to the Constitution;
(c) Respect, in the press, for the other rights
and duties laid down in the Constitution and the law." (art.
By way of example, the Government considers
it useful to present an extract from a press release concerning
a meeting held on 4 February 1980 at which the Press Council stated
"1. At the request of the international
relations branch of the State Secretariat for Public Information,
the Press Council has issued an opinion on a very comprehensive
document prepared by the Council of Europe on the possible functions
of the news media in society in the social, cultural and political
fields. The Press Council suggests that the following functions
should be added to the list proposed by the Council of Europe: educating
young people and expressing their views and aspirations, contributing
to a balanced flow of information between the industrialized and
developing countries; strengthening international peace and understanding,
and combating racism, apartheid and incitement to war; promoting
knowledge and understanding of the values and problems -of emigrant
communities and encouraging their integration into the societies
in which they live."
693. In 1985, the Advisory Council of the office
of the Government Attorney discussed the right to information and
freedom of the press in its advisory opinion No. 57/85. The first
three conclusions of this opinion are reproduced below:
"1. Sports club officials who prohibit
journalists access, in the exercise of their functions, to sports
facilities where football games are held, or to places specially
allocated for such games, are acting in violation of the right to
information from the point of view of both the right to inform and
of the right to be informed, as embodied in article 37,paragraph
1, of the Constitution;
2. Such action shall be treated as an offence
under article 35 of the Press Act (Decree-Law No. 85-C/75 of 26
February) and shall be punishable by a fine of up to 500,000 escudos
and, when violence is used or threatened, shall be treated as the
offence of coercion under article 156 of the Penal Code and punishable
by a term of imprisonment of up to two years or a fine or both;
3. Police officers, when dealing with a situation
described in paragraph 1 above, must take action to prevent the
commission of the offences referred to in the preceding conclusion,
and secure for such journalists effective enjoyment of their rights."
694. We shall now analyse the statute of the
Public Radio Broadcasting Corporation (RDP) as approved by Decree-Law
No. 167/84 of 22 May.
695. RDP is required to present national programmes
to promote the preservation of national values and to meet the needs
and wishes of the population in respect of information and training.
It is also, required to broadcast programmes for Portuguese centres
abroad - with the aim of protecting their cultural identity and
strengthening the bonds of affection binding them to Portugal and
the links of solidarity between all Portuguese nationals - and for
other countries where Portuguese is the official language. It is
also permitted to broadcast programmes about Portugal in a foreign
696. Under article 11, RDP is required to observe
certain principles, and in particular must:
(a) Provide up-to-date, truthful, sound, pluralistic
and comprehensive information on national and international events;
(b) Ensure the exercise of freedom of expression
and allow comparisons between the various schools of thought;
(c) Ensure a general approach that respects
(d) Reflect Portuguese culture in such a way
as to develop public interest;
(e) Take and apply measures aimed at minimizing
the effects of illiteracy;
(f) Consider it a fundamental duty to broadcast
instructional and educational material useful to the life of society
by stimulating patriotism, civic responsibility and noble sentiments
and by condemning delinquency and deteriorating morals.
697. As regards international co-operation,
RDP is required to maintain relations with the European Broadcasting
Union, the United Nations Educational, Scientific and Cultural Organization
and other foreign entities, giving priority where possible to entities
in countries where Portuguese is the official language (art. 13).
698. Employees of RDP also have special duties
which reflect the nature of their duties. They must use their initiative
and creativity to serve the higher aims of a democratic State based
on the rule of law and refrain from adopting views which favour
any one party, contrary to their duty to provide independent and
objective information. Any breach of this principle shall be treated
as a serious disciplinary offence.
699. Mention should be made of the celebration
of human rights days in Portugal. Celebrations were held to mark
not only the official day of Europe proclaimed by the Council of
Europe, but also the fortieth anniversary of the United Nations,
several information sessions being organized on these occasions.
700. Act No. 5/86 of 26 March redrafts some
of the provisions of Act No. 60/79 of 18 September, concerning official
communications for which publication is compulsory. They may be
issued by the Assembly of the Republic or the Government and must
be broadcast for reasons of public order. Such information concerns
situations which represent a danger to public health, to the safety
of citizens, to national independence or other emergency situations
701. The inclusion of material which is objectively
offensive in nature or which does not correspond to the truth constitutes
grounds for exercise of the right of reply (art. 5).
702. Naturally, freedom of expression also includes
the right to express political opinions. The Portuguese Republic
is, as stated in article 2 of the Constitution, a democratic State
subject to the rule of law and based "on plurality of democratic
expression and democratic political organization". The political
parties and trade union and professional organizations have the
right to broadcasting time on radio and television, in keeping with
their representativeness, so as to explain their programmes and
activities (Constitution, art. 40). Furthermore, various provisions
recognize the right of reply, in general terms as regards any natural
or legal person (art. 37, para. 4) and specifically as regards the
political parties represented in the Assembly of the Republic (art.
40, para. 2).
703. Article 117, paragraph 2, of the Constitution
grants the right of democratic opposition to minority parties, whose
status is governed by Act No. 59/77 of 5 August (discussed in Portugal's
704. Very recently, the Assembly of the Republic
approved Act No. 36/86 of 5 September, which recognized the right
of political reply of the opposition parties. This Act states that
the parties which are represented in the Assembly and are not part
of the Government have the same right as the Government to radio
and television broadcasting time, free of charge and on a monthly
basis, and allocated in proportion to their representativeness.
They have the right to reply to political statements by the Government,
that is to say, statements dealing with matters of general policy
or affecting a particular sector. Broadcasting time and the right
of reply may not be used simultaneously to respond to the same political
statement by the Government.
Incitement to war or hatred
705. Article 46 of the Constitution, dealing
with freedom of association, prohibits:
"1. The formation of associations intended
to promote violence or whose objectives are contrary to the criminal
"4. Armed, military-type, militarized or
paramilitary associations and organizations which adopt Fascist
706. The Penal Code covers this matter in several
provisions relating to crimes against peace (arts. 186 et seg.),
against mankind (arts. 189 et seg.) or against the State - the security
of the State, national sovereignty, independence or integrity (arts.
334 et seg. and 350 et seg.).
707. We may cite by way of example article 186,
concerning incitement to hatred against a people for the purpose
of starting a war; article 188, concerning the recruitment of mercenaries
for military service on behalf of a foreign State or any national
or foreign armed organization seeking through violence to overthrow
the lawful Government of another State or to threaten its independence,
territorial integrity or the normal functioning of its institutions;
article 189, concerning the crime of genocide and discrimination
on grounds of ethnic origin, race or colour; article 337, concerning
incitement to a declaration of war or armed action; articles 357
and 364, concerning the crime of incitement to civil war or collective
disobedience aimed specifically at causing alarm or unrest among
the population or in divisions of the armed forces; articles 287
and 288, concerning criminal or terrorist associations; and lastly,
article 132, concerning aggravated homicide as a result of circumstances
revealing that the perpetrator is especially open to censure, and
this includes homicide for reasons of racial or religious hatred
(para. 2 (d)).
708. Prevention of incitement to violence is
of crucial importance in this respect. It is one of the concerns
of the Portuguese Government and we might also draw attention to
Decree-Law No. 61/85 of 12 March, which lays down standards of discipline
in sports facilities and competition areas for the purpose of preventing
and suppressing violence.
Right of peaceful assembly
709. This right is embodied in article 45 of
the Constitution, which recognizes that:
"1. Citizens shall have the right to meet
peacefully and without arms, even in public places, without requiring
"2. The right of all citizens to demonstrate
shall be recognized."
710. Participation in motins (riots) or public
meetings at which acts of violence are committed is an offence under
articles 290 et seg. of the Penal Code. The carrying of weapons
on such occasions is a criminal offence.
711. Brawling which results in death or serious
injury is punishable by a term of imprisonment of up to two years
and by a fine under article 151.
712. Riotous behaviour by prisoners is punishable
under article 394 of the Penal Code.
713. The initial report submitted by Portugal
discussed Decree-Law No. 406/74 of 29 August, which deals with the
right of assembly (see CCPR/C/6/Add.6, P. 51). Since this legislation
is still in force, we consider it unnecessary to repeat here what
has already been said.
Freedom of association
714. Article 46 of the Constitution provides
for freedom of association. Paragraph 4 was modified so as to prohibit
armed, military-type, militarized or paramilitary associations and
organizations which adopt Fascist ideology. Under the article, citizens
have the right to form associations if:
(a) They are not intended to promote violence;
(b) Their objectives are not contrary to the
Act concerning Fascist organizations
715. Under Act No. 64/78 of 6 October, organizations
which advocate Fascist ideology are prohibited in Portugal. Under
this Act, political parties and movements, special commissions,
companies and enterprises may be considered as organizations for
this purpose. And fascism is understood, in the terms of article
3, as being the adoption, advocacy or dissemination of values, principles,
institutions or methods characteristic of specific historical régimes,
in particular warmongering, violence as a form of political struggle,
colonialism, racism, corporatism or the glorification of the most
representative personalities of such régimes. Also considered
as Fascist organizations are:
"Organizations which oppose democratic
institutions and symbols of sovereignty by anti-democratic means,
and in particular by violence, or organizations which advocate and
disseminate ideas or adopt forms of struggle contrary to national
716. Fascist organizations recognized as such
by judicial decision shall, by virtue of such decision, be abolished
or prevented from exercising any activity (art. 4). Members of such
organizations and persons who take part in their activities shall
themselves be punished under criminal law (art. 5).
717. Meetings of the statutory bodies of political
parties, trade unions and professional associations shall in no
event be prohibited, dissolved or subject to the requirement of
prior authorization in cases where a state of siege or emergency
is decreed (Act No. 44/86 of 30 September, art. 2, para. 2 (e)).
718. The provisions of articles 287 et seg.
of the Penal Code concern organized and violent crime. Under article
287, anyone who founds or is a party to a group, organization or
association whose objective is to commit crime shall be punished
by deprivation of freedom for a term of six months to six years.
The penalty shall be imprisonment for a term of two to eight years
in cases where the person concerned effectively directs such criminal
associations. Mitigation of or exemption from punishment is allowed
if the person concerned prevents the criminal activity from being
continued or informs the authorities of the existence of such groups,
organizations or associations so that the commission of offences
can still be prevented.
Freedom of association
719. Portugal discussed this subject in its
initial report on the implementation of articles 6 to 9 of the International
Covenant on Civil and Political Rights.
Right to form or join trade unions
720. Freedom of association is guaranteed by
article 56 of the Constitution, which states that:
"Workers shall be free, to form trade unions,
a condition and safeguard for the building of their unity in defence
of their rights and interests".
This provision, supplemented by the Freedom
of Association, Act (Decree-Law No. 215-B/75 of 30 April), also
"In the exercise of trade union freedom,
the following freedoms shall be safeguarded for workers without
exception: freedom to set up trade union associations at all levels"
(art. 2 (a)).
721. Freedom to set up trade union associations
is not dependent on any form of administrative authorization. Workers
are free to organize and draw up internal regulations for trade
union associations. Accordingly, the trade union's by-laws, developed
by the workers themselves, are not dependent on ministerial approval
and are subject only to judicial verification, a posteriori, of
722. Trade union associations acquire legal
personality upon registration of the by-laws with the Ministry of
Labour. The by-laws must also indicate the criteria governing the
admission of workers, that is to say, the geographical scope and
723. The Act places no limitation on the number
of trade unions permitted for each profession, occupation, category
or branch of activity. Workers therefore enjoy complete freedom
to set up trade unions associations where they feel bound to do
so to protect their rights.
724. Freedom of association, as provided for
by the Constitution, covers both the freedom of the worker to join
a trade union of his own choice and his freedom, not to belong to
a trade union, no worker being required to pay dues to a union of
which he is not a member.
725. The constitutional safeguards regarding
this aspect of trade union freedom are developed by article 37 of
the Freedom of Association Act, which states:
"Any agreement or act shall be prohibited
and declared null and void if its purpose is:
(a) To make the employment of a worker conditional
upon his joining or not joining a trade union association, or upon
his withdrawing from the association of which he is a member;
(b) To dismiss, transfer or cause prejudice
to any worker on the grounds of his membership or non-membership
of a trade union or on the grounds of his trade union activities."
726. Foreign workers enjoy, under the same conditions
as Portuguese nationals, not only the right to set up or join trade
union associations, but also the right to participate in trade union
727. Apart from these restrictions, it should
be mentioned that trade union associations are independent of employers,
the State, religious denominations, political parties and other
political associations (art. 56, para. 4, of the Constitution),
and reciprocal financing is prohibited (Freedom of Association Act,
art. 6, para. 2).
728. The Constitutional Court in a recent decision
upheld the concept of freedom of association already set forth in
the Constitution. It affirmed that:
Freedom of association is the antithesis of
trade union monopoly: it neither allows the imposition of systems
of one single trade union nor prohibits the existence of more than
one trade union for each category.
"Since it concerns workers uti singuli,
by recognizing a subjective - and therefore not a mere collective
class freedom - freedom of association ensures for each worker full
independence to decide whether or not to join an existing trade
union, or whether to take the initiative of promoting the establishment
of a new trade union. Furthermore, it is the duty of the trade union
itself to choose the kind of organization (by sector, by enterprise,
etc.). And it shall also be for the parties concerned - without
any external influence - to define the professional or occupational
category to which the association should relate."
Right of trade unions to form federations
729. The Constitution, in the article on freedom
of association mentioned above, establishes "freedom to set
up trade union associations at all levels" (art. 56, para.
2 (a)). The possibility of establishing trade union associations
is thus recognized, and the Freedom of Association Act allows three
(a) A federation an association of trade unions
of workers belonging to the same profession, occupation or to the
same branch of activity;
(b) A union - a regional association of trade
(c) A general Confederation - a national association
of trade unions.
730. At the same time, the Constitution also
recognizes that "trade union associations shall have the right
to establish relations with or to join international trade union
organizations" (art. 56, para. 5).
Right to strike
731. The right to strike is safeguarded by article
58 of the Constitution, which entitles workers to decide what interests
are to be protected by means of strikes; such interests are not
restricted by law. This constitutional provision is supplemented
by Act No. 65/77 of 26 August (Strike Act).
732. For example, the principal requirements
in the Act are:
(a) The right to strike may not be relinquished
(art. 1, para. 3);
(b) Strike action shall be decided by trade
union associations or, under certain conditions, by workers' assemblies
(c) Strike pickets shall be allowed, subject
to the right to work of those persons not engaged in the strike
action (art. 4);
(d) At least 48 hours' advance notice of a strike
is required (art. 5);
(e) Striking workers may not be replaced by
foreign workers in the enterprise or service while the strike is
being held (art. 6);
(f) Trade union associations and workers must,
during a strike, provide minimum essential services to meet certain
basic public needs (such as medical, hospital and pharmaceutical
services, power and water supply, post and telecommunications, etc.);
(g) Any form of discrimination on grounds of
participation or non-participation in the strike is prohibited (art.
Failure to comply with the obligation referred
to in subparagraph (f) may necessitate the civilian requisition
of workers by the Government under special legislation (art. 8),
although this procedure is rarely used.
733. Public administration workers, other employees
of the State and other public entities enjoy full equality with
all other workers in respect of the right to form or join trade
unions and the right to strike. Both the Freedom of Association
Act and the Strike Act emphasise the need to elaborate special legislation
to Govern these matters for workers in the public administration
(arts. 50 and 12, respectively).
734. However, the absence of such legislation
has not prevented recognition of these rights or diminished their
exercise. We would point out, moreover, that Portugal has ratified
International Labour Organisation Convention No. 151 (1978) concerning
Protection of the Right to Organize and Procedures for Determining
Conditions of Employment in the Public Service.
735. As regards members of the armed forces
and the police, article 270 of the Constitution states that:
"The law may lay down restrictions on the
rights of expression, assembly, demonstration, association and collective
petition and on the electoral capacity of the permanent members
of the military and security forces on active duty, as strictly
required by their functions."
736. Developing the principles set forth in
this article of the Constitution, Act No. 29/82 of 11 December -
the Armed Forces National Defence Act - restricts, inter alia, the
exercise of the rights of expression, assembly, demonstration and
association of military and militarized personnel. Thus, they may
not convene or participate in trade union meetings or demonstrations,
join or participate in the activities of trade union associations
other than professional associations of a deontological nature.
Nor do the constitutional rules concerning the rights of workers
apply to them.
737. Again, article 13 of the Strike Act excludes
the military or militarized forces from its field of application.
738. These restrictions under the Armed Forces
National Defence Act apply not only to military personnel, but also
to the members of the Republican National Guard (GNR) and the Fiscal
Guard (which are military forces and constitute special bodies of
military personnel having police functions) and, for the time being,
to the members of the Public Security Police (PSP), pending the
enactment of new legislation determining the extent to which trade
union rights; and the right to strike are applicable to them.
739. The members of the judicial police - a
non-militarized police force with criminal investigation functions
- enjoy the same trade union rights and right to strike as all other
public administration employees. Members of the judicial police
have, for instance, set up a trade union association for criminal
investigation officers and another trade union is at this time in
the process of being established.
Protection of the family
740. The initial report described the legal
framework surrounding the family, mentioning the various relevant
constitutional principles, in particular those embodied in articles
13, 36, 67 and 68, together with supplementary legislation, including
Decree-Law No. 496/77 of 25 November. This legal framework is based
on the following fundamental concepts: freedom of establishment
of the family; freedom to enter into matrimony; equal rights and
duties of the spouses as regards civil and political capacity and
the maintenance and upbringing of children; prohibition of discrimination
against children born out of wedlock; right of the family to the
protection of society and the State and to the effective existence
of all conditions permitting the personal fulfilment of its members.
741. Emphasis should be placed on the recognized
importance of adoption, which is now provided for in article 36,
paragraph 7, of the Constitution. The legal régime governing
adoption was the subject of two Portuguese reports submitted on
the implementation of articles 10 to 12 of the International Covenant
on Economic, Social and Cultural Rights. Reference may, however,
usefully be made to Decree-Law No. 274/80 of 13 August, which-provides
that any person wishing to adopt a child shall directly declare
his wish to the Department of Social Security of his area of residence.
Such an declaration must be made even in cases where the prospective
adopting parent lives with, and is responsible for, the child he
wishes to adopt (art. 1). Following this declaration, the Social
Security Service will contact the prospective adopting parent and
the child, providing them with social and family support so as to
obtain the information essential for the conduct of the necessary
investigations. It will prepare a report, which must accompany an
application for the establishment of the relationship, addressed
to the competent Court (arts. 2 and 3).
742. Although the legal framework relating to
the family has remained unchanged, a number of legislative texts
strengthening the relevant general principles have recently been
adopted. We shall mention them below.
743. Act No. 4/84 of 11 May relating to the
protection of motherhood and fatherhood and Decree-Laws Nos. 135/85
and 136/85, dated 3 May 1985 concerning implementation of that Act
outlined the legal framework and unified earlier legislation on
the subject. Motherhood and fatherhood are, in the new legislation,
recognized as higher social values. The Act grants the mother and
father, in conditions of full equality, the right to the protection
of society and the State as regards the performance of their role
vis-à-vis their children, and in particular the upbringing
of the children. Parents may not be separated from their children
unless they are remiss in performing their duties towards them;
such separation must always be the subject of a judicial decision
(art. 2). It is the responsibility of the State to prepare and disseminate
useful information concerning the régime for the protection
of motherhood and fatherhood (art. 3).
Protection of health
744. The Act guarantees women the right to free
necessary medical attention during pregnancy and the 60 days following
childbirth. Free examinations of the baby during the first year
are also guaranteed.
Protection of employment
745. Under the Act women are entitled, without
loss of remuneration or other benefits, to 90 days' leave, of which
60 must be taken after childbirth. The other 30 days may be taken,
in full or in part, before or after childbirth. Legal provision
is also made for an extension of this period in exceptional cases.
746. In the event of the death of the mother
during the period following childbirth, the Act grants the father
leave of absence from work for a period equal to that to which the
mother would have been entitled.
747. Employees who have adopted a child under
the age of three are also entitled to leave of absence for 60 days.
748. Decree-Laws Nos. 135/85 and 136/85 provide
for measures affording protection in matters of employment (the
former relates to the civil service, and the latter to persons employed
under the legal régime of an individual labour contract).
Particular attention should be drawn to the measures relating to
special working hours for nursing mothers (art. 9), flexible working
hours (art. 19), other facilities (art. 21) and absence for the
purposes of assistance to natural children, actual or prospective
adopted children, and children who are disabled or in hospital.
749. Act No. 3/84 of 24 March recognizes the
right to sex education as a fundamental part of education. Under
article 1 of the Act, the State is responsible, for the purposes
of protection of the family, for publicizing family planning methods
and organizing the legal and technical structures which permit conscientious
motherhood and fatherhood.
Right to sex education for young people
750. Under this Act, the State, through the
schools, health organizations and the media, guarantees the right
to sex education as a component of the fundamental right to education
(arts. 1 and 2). Scientific knowledge of the human anatomy, genetics,
physiology and sexuality are to be provided by schools, which will
accordingly contribute to the elimination of discrimination on grounds
of sex and the traditional separation of men and women (art. 2,
Right to information about family planning methods
751. This right comprises free access to the
scientific and sociological information needed to use healthy family
planning methods and for responsible motherhood and fatherhood (art.
3, para. 1).
Purpose of family planning
752. The purpose of family planning is to give
individuals and couples information, knowledge and means that will
enable them to take a free and responsible decision about the number
and spacing of their children (art. 3, para. 2). Family planning
methods are also regarded as important means of protecting the health
of mothers and children, preventing abortion and enhancing the quality
of family life (art. 3, para. 3).
Content of family planning
753. Family planning as envisaged under the
law comprises consultations and genetic information for couples,
information on methods of contraception and distribution of contraceptive
devices, treatment of infertility, prevention of sexually-transmitted
diseases and monitoring of genital cancer (art. 4).
Family planning activities
754. The State guarantees to all persons, without
discrimination, free access to consultations and any other means
of family planning (art. 5, para. 1). It will gradually extend to
the whole of the national territory facilities for consultation
on family planning. Consultation facilities will be provided at
health centres and existing health institutions, for the purpose
of family planning activities (art. 5, para. 2).
755. The Act requires information and advice
to be objective. They may be based only on scientific data; the
use of a particular method of contraception may be refused by the
family planning services only for duly substantiated medical reasons
(art. 6, paras. 2 and 3).
756. The Act assigns to the State in general,
and to the health services and the Commission on the Status of Women
in particular, the duty to publicize family planning methods and
techniques (art. 5, paras. 3 and 7). The State is required to support
all initiatives by associations or other private entities aimed
at disseminating family planning methods and techniques in accordance
with the spirit of this Act.
757. Lastly, it should be mentioned that consultations
and contraceptive devices distributed by public bodies are free
of charge (art. 6, para. 1).
Treatment of sterility and artificial insemination
758. The Act also attaches great importance
to the study and treatment, by specialized centres, of sterility
and artificial insemination as a means of overcoming sterility (art.
759. With the aim of ensuring full awareness
of this action, the Act requires a number of formalities to be completed
for the purposes of voluntary sterilization. On the other hand,
it recognizes the right of every doctor to conscientious objection
to the practice of sterilization or artificial insemination (arts.
10 and 11).
760. Every employee at family planning clinics
is required to maintain confidentiality concerning the subject,
content and result of consultations.
761. Decree No. 52/85 of 26 January approved
the regulations concerning family planning consultations and information
centres for young people. It affirmed the need to institute, within
one year, family planning consultations at all health centres and
hospitals comprising gynaecological and obstetric services.
762. It has also been decided to establish information
centres for young people which will: (a) provide information on
the anatomy and physiology of the reproductive process; (b) provide
sex information; (e) educate young people in the proper experience
of their sexuality; (d) distribute contraceptives in risk situations.
The consultations and information provided will be free of charge,
as will the distribution of contraceptives.
763. Act No. 6/84 of 11 May provided for a number
of cases in which the voluntary interruption of pregnancy is permitted,
and accordingly incorporated a number of amendments in the Penal
Code of 1982. In accordance with these amendments, an abortion performed
by or under the guidance of a doctor in an official or officially
recognized health institution, with the consent of the pregnant
woman, is not punishable if, in the light of the state of knowledge
and experience of medicine:
(a) It constitutes the sole means of averting
the danger of death or serious and irreversible injury to the body
or physical or mental health of the pregnant woman;
(b) It is the most advisable means of averting
the danger of death or serious and lasting injury to the body or
physical or mental health of the pregnant woman, provided that it
is performed during the first 12 weeks of pregnancy;
(c) There are convincing grounds for believing
that the foetus will suffer from an incurable serious illness or
malformation, in which case abortion must be performed during the
first 16 weeks of pregnancy;
(d) There are serious indications that the pregnancy
resulted from rape, provided that the abortion is performed during
the first 12 weeks of pregnancy. In this case, criminal participation
in the rape must have occurred.
764. The Act guarantees doctors and any other
qualified health practitioners the right of conscientious objection
to the practice of acts relating to the voluntary termination of
pregnancy as permitted under the Act.
765. Act No. 14/85 of 6 July established the
right of a pregnant woman admitted to a public health institution
to ask to be accompanied, during childbirth, by the father-to-be
or a relative, regardless of the time of day or night when childbirth
may occur. The person accompanying her shall not be subject to the
regulations concerning visits.
766. Opinion No. 8/81 of the Constitutional
Commission ruled unconstitutional certain provisions of Decree-Law
No. 32,615 of 31 December 1942, which reorganized the Odivelas Institute
intended for the education of "legitimate daughters of members
of the armed services". That objective was found to be at variance
with article 36, paragraph 4, of the Constitution, which stipulates
that: "Children born out of wedlock may not, by virtue of this
situation, be subjected to discrimination, and neither the law nor
the official services may make use of discriminatory appellations
767. The principal and deputy principal, as
well as other staff members of the Institute, were required to be
"unmarried or widows without children". However, article
36, paragraph 1, of the Constitution provides for the "right
to establish a family and to enter into matrimony, in conditions
of full equality". In addition, article 68 of the Constitution
recognizes the right of the father and mother "to the protection
of society and the State in performing their irreplaceable role
with regard to their children, ... and in guaranteeing that may
achieve vocational fulfilment and participate in the civic life
of the country". And article 48, paragraph 4, of the Constitution
in turn stipulates that "all citizens have the right to enter
public service, in conditions of equality and freedom". All
these provisions were held to be violated by Decree-Law No. 32,615.
On the basis of this opinion, therefore, the Council of the Revolution,
in decision No. 123/81, declared these provisions unconstitutional.
The rights of the child
768. The two reports submitted by Portugal on
the implementation of articles 10 to 12 of the International Covenant
on Economic, Social and Cultural Rights outlined the measures taken
by Portugal to protect children (see document E/1980/6/Add.35/Rev.1).
The reports contained an analysis of adoption and guardianship measures
ordered by the juvenile courts.
769. In connection with this article, reference
should again be made to the constitutional principles contained
in article 13, on equality and non-discrimination and article 36,
on protection of the family, in accordance with which there may
be no discrimination against children born out of wedlock, either
through reference in legislation or by official services.
770. The Constitution repeatedly evinces a concern
for the rights of minors, concern which has naturally been given
specific effect in a number of implementing legal texts. By way
of example we would mention: article 60, paragraph 2 (c), in accordance
with which the State is responsible for ensuring working conditions
in which special protection is provided for minors; article 63,
on social security, which mentions the need for special protection
of orphans (para. 4); article 64, paragraph 2, concerning the right
to health, which mentions the protection of children and young people,
and the promotion of physical exercise and sports in schools and
among the population in general; article 67, which relates to the
intention to establish a national network of mother and child assistance
centres and a national network of creches and supporting institutions
for families; and article 69, concerning children, which stipulates
that children are entitled to the protection of society and the
State with a view to their development, particular protection being
required for orphans and abandoned children against any form of
discrimination or oppression and against abuses of authority in
the family and in other institutions.
771. In accordance with Act No. 4/84 of 11 May
and Decree-Laws Nos. 135/85 and 136/85 dated 3 May 1985, a number
of measures have been enacted to ensure that children benefit from
special supervision and attention in the event of illness or hospitalization
and, in general, up to the age of 12 or after maternity leave.
772. As regards the right to a name, a subject
which was discussed on the occasion of the submission of the initial
Portuguese report, account should be taken of the provisions of
the Civil Code, and in particular article 72, which recognizes the
right of every person to use a name and the right to oppose its
improper use by anyone else, and articles 1875 and 1876, concerning
first names and family names. As we stated when the previous report
was submitted, a child may use the names of his father and mother
or of only one of them, the choice being incumbent on the parents.
Since there is no ruling in this connection, the competent judge
decides, taking account of the child's interest.
773. A new Civil Registration Code has in the
meantime been approved by Decree-Law No. 51/78 of 30 March, and
amended by Decree-Law No. 379/82 of 14 September 1982. In accordance
with article 126, a birth certificate must mention family names
and first names. Under article 128, names may be composed of not
more than two family names and four first names. First names must
in general be Portuguese, or, if foreign, be adapted or translated.
They must not give rise to doubt about the sex of the child or make
political references. Family names are selected from among those
of the father and mother or of one of them or those to which one
or other would be entitled, failing which one of the names by which
they are known may be chosen.
774. When the child's parents are not known,
as for example in the case of an abandoned child, the registrar
has to give him a name, composed of a maximum of three first or
family names selected from among those most commonly used, or connected
with a particular characteristic of the child or with the place
where he was found, but never equivocal names or names liable to
draw attention to his status, for example, as an abandoned child
(Civil Registration Code, arts. 135 and 136).
775. In accordance with article 4 of the Constitution:
"All persons who are regarded as such by
law or by an international convention are Portuguese citizens."
Reference should nevertheless be made to the
restrictions provided for by the Constitution in this connection:
"Loss of citizenship and restrictions on
civil capacity may be applied only in the cases and in accordance
with the procedures provided for by law, and in no circumstances
for political reasons."
776. The legislation concerning nationality
has undergone far-reaching changes since the adoption of the following
constitutional principles in 1976: equality of the spouses, non-discrimination
against children born out of wedlock, and prohibition of loss of
nationality for political reasons. The very essence of the relationship
constituted by nationality has been reviewed. Nationality has been
viewed as a fundamental right of the individual and, as regards
the granting, acquisition and loss of nationality, it has been accepted
that the will of the individual concerned may, in certain cases,
determine the establishment of nationality, and any grounds for
loss of concerned have been excluded.
777. Lastly, an effort has been made to achieve
a balance between the two criteria for the determination of nationality:
ius sanguinis and ius soli.
778. In accordance with Act No. 37/81 and Decree-Law
No. 322/82, the following persons are Portuguese by origin:
(a) The children of a Portuguese mother and
father, born in Portuguese territory or territory under Portuguese
administration (Macao), or abroad if the Portuguese father or mother
was resident abroad in the service of the Portuguese State;
(b) The children of a Portuguese father or mother,
born abroad, if they have made a declaration to the effect that
they wish to be Portuguese or if they have their birth entered in
the Portuguese domestic or consular civil register;
(c) Persons born in Portuguese territory (with
the exception of territories under Portuguese administration) of
a foreign father and mother who have been normally resident in that
territory for six years and are not in the service of their State,
if they have made a declaration to the effect that they wish to
(d) Persons born in Portuguese territory if
they possess no other nationality.
The law establishes the presumption of birth
in Portuguese territory or territory under Portuguese administration
in the case of children abandoned in such territory at birth.
779. In accordance with article 2, under-age
or incapacitated children whose father or mother acquires Portuguese
nationality may also acquire such nationality by declaration.
780. Any person who is the subject of full adoption
by a Portuguese national also acquires Portuguese nationality (Nationality
Act, art. 5).
Right of participation in political
Participation in the conduct of public affairs
(see document E/CNA/1988/11, pp. 9-15)
781. As we have already seen, the Constitution
establishes various principles which unequivocally show that the
Portuguese people may freely choose its political status. Article
1 recognizes that: "Portugal is a sovereign republic, founded
on human dignity and the will of the people", while article
2 refers to a "democratic State subject to the rule of law,
based on the sovereignty of the people ... on plurality of expression
and democratic political organization, whose object is to ensure
... participatory democracy".
782. In the light of these principles, the Portuguese
State elaborates the Constitution and has the capacity independently
to determine the future of the national community. It does so in
accordance with the people's will, as formed through the competition
and plurality of political associations and parties, and manifested
"through equal, direct, secret and periodic suffrage and the
other means provided- for in the Constitution". One of the
fundamental tasks of the State is to "defend political democracy
and to ensure the organized participation of the people in the solution
of national problems".
783. The establishment of political parties
is thus provided for as a means of ensuring freedom of association,
which, moreover, entails the possibility "of joining them and,
through them, contributing to the formation of the people's will
and to the organization of political authority" (art. 51, para.
1). The parties are thus a form of organization and expression of
the people's will, although they are not permitted to incite violence
or to advocate Fascist ideology (art. 46, paras. 1 and 4).
784. The citizens thus have the right to take
part in the political life and conduct of public affairs of the
country, either directly or through freely elected representatives
(art. 48). Their direct and active participation is deemed to be
the condition and fundamental instrument for consolidation of the
democratic system (art. 112).
785. By designating their representatives by
ballot, citizens have the opportunity of taking part in shaping
the policy to be adopted and supervising execution of that policy.
It is, in fact, incumbent on the Assembly of the Republic, "a
representative assembly of all Portuguese citizens" (art. 150):
to legislate on all matters other than those which are reserved
for the Government; to approve the State Plan and Budget legislation,
and to consider annual and final reports on implementation of the
Plan; and to ensure observance of the Constitution and laws, and
evaluate the programme and acts of the Government and the Administration.
786. In its turn, the Government is the organ
which conducts overall national policy (art. 185). The Prime Minister
is appointed by the President of the Republic after consultation
with the parties represented in the Assembly of the Republic and
in the light of the election results (art. 190). The Government
is accountable to the President of the Republic and the Assembly
of the Republic (art. 193).
787. The Government's programme contains the
principal political courses of action and the measures to be adopted
or proposed in the various spheres of government activity (art.
191). This programme is submitted to the Assembly of the Republic
for consideration (art. 195) and may be rejected by the Assembly
(art. 195, paras. 3 and 4), in which case the Government is required
to resign (art. 198 (d)).
788. The Government may itself ask the Assembly
of the Republic for a vote of confidence on a declaration of overall
policy or on any subject of national interest (art. 196). If the
motion is rejected, the Government is required to resign (art. 198
789. The deputies may, in their turn, vote on
motions of censure against the Government in connection with the
execution of programmes or a subject of national interest. If such
a motion is carried, the Government is again required to resign.
790. Lastly, article 263 mentions the need to
establish people's territorial organizations so as to "increase
participation in local administrative activities".
791. From this brief analysis, it is apparent
that the Constitution has provided for various means to ensure that
the people may take part in the determination and supervision of
792. The Constitution further establishes, in
article 52, the right of petition. Paragraph 1 of this article reads:
"All citizens may, individually or jointly,
submit to the organs of sovereignty or to any authority petitions,
representations, demands or complaints in order to defend their
rights, the Constitutions, laws or the general interest."
793. In accordance with article 49 of the Constitution,
all citizens who have attained their majority (18 years) have the
right to vote, without prejudice to the forms of incapacity stipulated
by law. The exercise of this right is personal and constitutes a
794. Article 116 establishes the general principles
of electoral law.
"1. Direct, secret and periodic suffrage
shall constitute the normal means of designating members of the
elective organs of sovereignty, and organs of the autonomous regions
and local authorities.
"2. The compilation of electoral rolls
shall be official, obligatory, final and unique for all elections
conducted on the basis of direct universal suffrage.
"3. Electoral campaigns shall be governed
by the following principles:
(a) Freedom of propaganda;
(b) Equality of opportunity and treatment of
the various candidates;
(c) Impartiality of the public authorities vis-à-vis
(d) Monitoring of electoral accounts.
"4. Citizens have a duty to co-operate
with the electoral services in accordance with the procedures provided
for by law.
"5. The conversion of votes into mandates
shall be in accordance with the principle of proportional representation.
"6. The act providing for the disbandment
of a collegiate body elected by direct suffrage shall establish
the date of the new elections; failure to do so shall render the
act invalid. The elections shall be held within 90 days of the date
of disbandment, the electoral law in force at the time of disbandment
being the only applicable law.
"7. It shall be the responsibility of the
courts to determine admissibility and validity of acts relating
to electoral procedure."
795. This article underwent a number of amendments
at the time of the constitutional revision in 1982 - amendments
which have helped to strengthen the guarantees previously established
in connection with the right to vote.
796. Compilation of electoral rolls is not only
obligatory and unique, but also, official and final. Official compilation
means that the commissions responsible for compiling the rolls must
ex officio ensure that all citizens legally empowered to vote of
whom they have knowledge are entered on the rolls. Final compilation
means that, once an elector has been entered on the rolls no further
entry may be made at the time of each election, unless changes have
occurred in his situation (e.g. change of address).
797. Paragraph 6 was introduced at the time
of the constitutional reform. Under this paragraph, if a directly
elected collegiate body is disbanded, the date of new elections
must at the same time be stipulated. A criterion for choosing this
date is even established. In the event of violation of this principle,
the act of disbandment is regarded as null and void. Thus, any risks
that may arise from the non-existence of action by these directly
elected collegiate bodies are averted.
798. Electoral legislation has not undergone
any far-reaching amendments. The fundamental texts are the following:
(a) Electoral rolls:
- Act No. 69/78 of 3 November;
- Act No. 15/80 of 30 June;
- Act No. 41/79 of 10 January; and
- Act No. 72/78 of 28 December;
(b) Election of the President of the Republic:
- Decree-Law No. 319-A/76 of 3 May-,
- Act No. 45/80 of 4 December; and
- Act No. 143/85 of 26 November;
(c) Elections to the Assembly of the Republic:
- Act No. 14/79 of 16 May;
- Council of Ministers decision 3/85 of 18 January, which set up
an inter-ministerial commission to review the electoral legislation
- Act No. 14-A/85 of 10 July;
(d) Elections to local legislative bodies:
- Decree-Law No. 701-B/76 of 29 September;
- Act No. 14-B/85 of 10 July;
(e) National Electoral Commission:
- Act No. 71/78 of 27 December.
799. The amendments mainly concerned the part
played by the Constitutional Court in the electoral process. Under
Act No. 28/82 of 15 November, which established the organization,
functions and procedures of the Constitutional Court, it is the
responsibility of the Court (art. 8) to: receive and accept nominations
for the office of President of the Republic; rule on appeals against
decisions on demands and representations submitted in the document
on the general verification of elections to the office of President
of the Republic; rule on appeals in disputes concerning the submission
of nominations and disputes concerning elections to the Assembly
of the Republic, regional assemblies and local legislative bodies.
800. As regard political parties, coalitions
and fronts, it is the Court's responsibility (art. 9) to: accept
and record the registration of parties; assess the legality of names,
abbreviations and symbols, and their identity or resemblance to
those of other parties, coalitions or fronts.
801. By a ministerial decree of 3 March 1986,
published on the following 26 March, the Government expressed the
view that it was necessary to establish a commission to frame an
electoral code comprising the principal provisions in force on that
subject. It is expected that this code will be published shortly.
Right of access to public service
802. As regards the principle of equality of
access to public service, account must be taken of a number of constitutional
provisions. Article 47, paragraph 2, refers to the free choice of
occupation and access to public service in conditions of equality
and freedom and, as a general rule, by means of a competitive examination.
Article 48 relates to participation in public life:
"2. Every citizen has the right to be objectively
informed of acts of the State and other public entities and to be
informed by the Government or other authorities of the management
of public affairs."
Article 50 establishes the right
of access to public service, in conditions of equality and freedom.
Article 230 forbids the autonomous
"(c) To restrict the exercise of an occupation
or access to public service to persons born or resident in the region."
803. As we have already noted, access to public
service is in general achieved by means of a competitive examination.
The legislation enacted in this connection has laid down the general
principles applicable to the selection of public officials in the
central administration, public institutions and economic co-ordination
agencies (Decree-Law No. 44/84 of 3 February). The measures provided
for are intended to "evaluate the ability and qualifications
of candidates" (art. 3). They must conform to the following
principles (art. 4): equality of conditions and opportunities for
all candidates; freedom to submit applications; prompt notice of
the selection method and tests to be used, and classification programmes
and systems; application of objective evaluation criteria and methods;
impartiality in members of examining boards; right of appeal.
804. In respect of public administration employees
the Constitution recognizes that they may not be injured or advantaged
by virtue of the exercise of any of the political rights provided
for in the Constitution or, in particular, by reason of their membership
of a party" (art. 269, para. 2).
The right to equal treatment
in the courts and
any administrative organ
805. The principle of equality, as enunciated
in article 13 of the Constitution, is once again the essential foundation
of the whole of the existing legal order. Article 20 provides that
all citizens are entitled to legal protection and to defend their
rights; justice may not be denied for lack of financial means. All
citizens may submit to the organs of sovereignty and to any authority
petitions, representations, demands or complaints in order to defend
their rights, the Constitution, the laws or the general interest
(art. 52). They may, on grounds of acts of omission or commission
by the public authorities, apply to the Provedor de Justiça
(Ombudsman), who may in consequence make recommendations to the
competent bodies for the purpose of preventing, or providing redress
for, injustices (art. 23).
806. The courts are the organs of sovereignty
responsible for defending the rights and legally protected interests
of citizens, prohibiting and punishing violation of democratic legality,
and settling conflicts of public or private interests (arts. 205
and 206). They are subject to the law and their decisions are binding
on all public and private persons (art. 210).
807. Ensuring equal treatment in the administration
of justice sometimes entails adopting measures for the granting
of special treatment to certain individuals who, without such measures,
would be treated in a discriminatory manner.
808. With this point in mind, a number of provisions
call for an interpreter to be present, without cost to the parties
concerned, whenever they have an inadequate knowledge of the Portuguese
language. In this connection, Decree-Law No. 178/81 of 30 June provides
that the Ministry of Justice shall defray the cost of interpretation
in proceedings to which a foreign worker is a party.
809. The recent Code of Penal Procedure contains
similar provisions. Thus article 92 reads:
"2. If any person who does not know or
has an inadequate knowledge of the Portuguese language is involved
in the proceedings, a competent interpreter shall be appointed,
without charge, even if the presiding judicial officer or one of
the participants in the proceedings knows the language used."
Similar action is provided for in the case of
deaf and dumb persons. By directly invoking the European Convention
on Human Rights (art. 6, para. 3 (e)), Portuguese courts have applied
this principle in several decisions, and in these cases the State
has defrayed the relevant costs.
810. One school of Portuguese legal thought
maintains that equal treatment in the courts presupposes information
about the law. Article 20, paragraph 1, of the Constitution refers,
in fact, to "the right to legal information and to protection"
of all citizens in accordance with the law. Citizens should accordingly
be better informed of their rights and the means of exercising them.
811. For that reason, the Ministry of Justice,
in 1978, established a commission on access to the law which, in
its final report, proposed co-operation between the State and lawyers
so as to ensure the availability of legal assistance comprising
legal consultation, judicial assistance and the ex officio appointment
of a defence counsel in criminal proceedings. Very recently, a new
commission on access to the law was appointed. In accordance with
the decree setting it up, "persons should be informed and their
interest aroused, so as to include justice and the law among the
values of the civil apparatus". The media are called upon to
co-operate in this task, since access to the law is a cultural reality
and efforts should be made to ensure that everyone has a deeper
knowledge of his rights and the means of protecting them (Decree
No. 61/86 of 11 June).
812. In accordance with a protocol of co-operation
concluded between the Ministry of Justice and the Bar Association,
a Legal Information Office has in the meantime been established
to provide legal information free of charge, at the request of the
persons concerned. The Office is staffed by young lawyers. In the
Lisbon Faculty of Law, another Legal Information Office distributes
and provides information free of charge on questions put to it.
813. Portugal is anxious to ensure that all
citizens have a right to information. Thus, in the most recent report
submitted by the Provedor de Justiça to the Assembly of the
Republic, there is a reference to the need to use comprehensible
language in legal texts. In this way, the general public will be
able to understand and exercise their rights and duties. In cases
where these texts establish a specific time-limit for applying for
certain benefits or, in general, exercising certain rights and duties,
the dissemination of the relevant information should be ensured
through publication not only in the Official Gazette but also on
radio and television.
814. The Provedor de Justiça subsequently
suggested that radio programmes might be broadcast periodically
in order to publicize, in a manner readily comprehensible to the
population in general, their rights and duties, in particular those
whose exercise or performance must take place within a certain time-limit.
815. However, the principle of equality of treatment
may extend to another area: not only the equal treatment of every
citizen in the courts and the enforcement of the law, but equal
treatment of the parties in proceedings pending before a court.
816. In this connection, reference should be
made to a number of provisions of the above-mentioned Code of Penal
817. It is stated in the outline of reasons
for enabling legislation that "the intention has been to ensure
genuine parity in the legal positions of the prosecution and the
defence at all stages of the proceedings, by developing the material
equality of procedural 'weapons', as a means of expressing the constitutional
rule of the equality of citizens before the law". Thus, the
defendant or, in other words, the person against whom a criminal
charge has been brought (Code of Penal Procedure, art. 57) must
have the assurance that procedural rights and duties will be exercised
(ibid., art. 60) through the recognition, inter alia, of his right
to be present at proceedings directly concerning him, to choose
a defence counsel or request a court-appointed counsel, to be assisted
by that counsel in all proceedings in which he participates, and
to be informed of his rights by the judicial authority or police
body before which he is to appear (ibid., art. 61).
The rights of minorities
818. The principle of equality before the law
brings us to recognition of the rights, freedoms and guarantees
of all citizens and the assurance that ethnic, religious or language
minorities enjoy the right to their own cultural life, religion
819. The only ethnic group as such in Portugal
are the gipsies, in respect of whom efforts have been made to ensure
that their children attend school on a compulsory basis.
820. Immigrants, refugees and nationals of new
Portuguese-speaking countries (in particular, Cape Verde and Timor)
have also been the subject of particular attention and have been
given support in educational matters.
821. The right of religious minorities to profess
and practise their religion is recognized (see comments on article
822. Other action taken has been the attempt
to preserve Mirandês, a dialect used in north-eastern Portugal
which constitutes the only case of a language minority.