In dialogue with Portugal, Human Rights Committee discusses racial discrimination, police abuse and detention of asylum-seekers

 

6 March 2020

The Human Rights Committee today concluded its consideration of the fifth periodic report of Portugal on the implementation of the International Covenant on Civil and Political Rights, during which Experts discussed, among other issues, racial discrimination and racially motivated instances of police violence, and the detention of migrants and asylum-seekers. 

Committee Experts commended Portugal's commitment to the protection and promotion of human rights and recognized the achievements, such as reducing prison overcrowding and fighting corruption. 

The significant increase in requests for international protection led to overcrowding in the reception centres, prolonged detention of asylum-seekers at border points and delays in the processing of asylum requests, they said.  In this context, the Committee was particularly concerned about those most vulnerable, children in particular.

Flagging a "culture of abuse" amongst police forces, Experts raised concerns about racially motivated instances of police violence.  They discussed structural discrimination against certain groups, people of African descent in particular, and how the lack of racial statistics affected the identification of vulnerabilities to multiple and intersecting forms of discrimination.

The Experts also asked whether measures to address the excessive use of force by law enforcement officers were sufficient. 

The head of the Portuguese delegation, José Luís Lopes da Mota, Judge at the Supreme Court of Justice, in his opening remarks highlighted Portugal's role in the resettlement of refugees and the reception of asylum seekers under the European Union framework.  He explained that unaccompanied minors under the age of 16 were not kept in the temporary settlement centres, while those over the age of 16 were only settled there if it was in their best interest and for a maximum period of seven days.

Other delegates noted that the number of asylum requests had increased from 12,000 to 18,000 during 2018-2019.  A new migrant reception centre would soon be opened to reduce overcrowding and additional staff had been hired to address delays in the processing of the asylum application. 

To prevent and combat police violence and abuse of authority, Portugal had heavily invested in human rights training of agents of the security forces.  The use of force by law enforcement officers was highly regulated and in line with international standards, including the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.  The use of firearms and electric weapons was a last resort; it was carefully monitored and any misuse was sanctioned, assured the delegation.

A key component of the effort to tackle racial discrimination was training and awareness-raising of law enforcement officials, including on diversity and intercultural dialogue to combat stereotypes. 

With the new law adopted in 2017, Portugal had strengthened its legal regime for combating racial and ethnic discrimination.  It extended the scope of application to descent and territory of origin as prohibited grounds of discrimination and prohibited multiple discrimination and discrimination by association.

Mr. Lopes da Mota concluded by thanking the Experts for their specific questions, for it was by considering the details that one could see the law in action and assess how human rights were being upheld. 

Rui Macieira, Permanent Representative of Portugal to the United Nations Office at Geneva, in his concluding remarks reiterated Portugal's commitment to upholding all human rights.

Christof Heyns, Committee Expert, in his conclusion underscored the importance of the issues discussed, including prison overcrowding, forced medical interventions on persons with disabilities and racial discrimination.

The delegation of Portugal consisted of representatives of the Supreme Court of Justice, Ministry of Foreign Affairs, Ministry of Justice, Ministry of Education, Ministry of Health and the Permanent Mission of Portugal to the United Nations Office at Geneva.

The Committee will issue its concluding observations and recommendations on the report of Portugal at the end of the session on 27 March.  All the documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage. 

Summaries of the Committee's public meetings in English and French are available at the United Nations Office at Geneva News and Media page, while the webcast can be viewed at UN Web TV. 

At 3 p.m. today, 6 March, the Committee will hear comments of United Nations Member States on the revised draft General Comment N°37 on article 21 of the International Covenant on Civil and Political Rights on the right of peaceful assembly.

Report

The Committee has before it the fifth periodic report of Portugal (CCPR/C/PRT/5) and its reply to the list of issues (CCPR/C/PRT/RQ/5).

Presentation of the Report

SÓNIA MELO E CASTRO, Deputy Permanent Representative of Portugal to the United Nations Office at Geneva, said the report was prepared by the National Commission on Human Rights, Portugal's national implementation, reporting and monitoring mechanism established in April 2010 in line with a commitment made during Portugal's first Universal Periodic Review. 

The Commission brought together representatives of the different ministries and benefitted from the participation of the Ombudsman and the Public Prosecutor's Office as observers.  It also promoted greater involvement of civil society organizations in the reporting on the human rights situation in Portugal, said Ms.  Melo e Castro.

JOSÉ LUÍS LOPES DA MOTA, Judge, Supreme Court of Justice of Portugal, said that since the re-establishment of a democratic regime 45 years ago, Portugal had been striving to develop and guarantee human rights and protect the most vulnerable.  The focus of the education system was the civic formation of the new generations, through the implementation of a National Strategy for Citizenship Education.  

To prevent and combat police violence and abuse of authority, Portugal had heavily invested in human rights training of agents of the security forces and services, both during initial and continuing training, said Mr. Lopes da Mota.  Each security force and service had its own inspection bodies, while the General Inspectorate of Internal Administration ensured audit, inspection and oversight functions for all Government entities.  If there was evidence of a crime, the General Inspection informed the Public Prosecutor's Office to initiate criminal proceedings. 

Portugal had adopted a new regulation on material conditions of detention in police establishments to deepen the balance between security imperatives and the respect for the fundamental rights of the detained person.  Special attention was being given to the inspection of detention facilities to ensure that the rights of detained citizens were respected, Mr. Lopes da Mota said.  During the 2012 to 2019 period, 457 police premises had been subjected to unannounced inspections.  The resulting recommendations had been implemented, in line with the concerns expressed by the Committee Against Torture and the European Committee for the Prevention of Torture.  For the same purpose, unannounced inspections were carried out at the temporary installation centres for foreigners and other equivalent spaces.

Portuguese law criminalized discrimination and incitement to hatred and violence, sanctioning the participation in organized activities by 1 to 8 years in prison, while individual acts received penalties ranging from 6 months to 5 years.  The unanimous passing of a new law in 2017 had markedly changed the legal regime for combating racial and ethnic discrimination.  It extended the scope of application to descent and territory of origin as prohibited grounds of discrimination and included the prohibition of multiple discrimination and discrimination by association.  The Commission for Equality and Against Racial Discrimination was developing actions to inform the society about the new law and to guarantee the lodging of individual complaints. 

Female genital mutilation had been criminalized, as were harassment and forced marriage, in line with the Istanbul Convention. 

Recent legislative changes, such as allowing sentences of less than two years to be served under house arrest by electronic surveillance, had reduced the number of people in prison by some 2,000.  A recommendation had been issued to implement the Mandela rules regarding the length of confinement in disciplinary cells, which should not exceed 15 consecutive days, despite the still legal limit of 21 days.  A new model of care for inmates had been introduced to provide critical health care to patients with viral hepatitis and HIV and to diagnose and treat those living with chronic hepatitis C.

Finally, Mr. Lopes da Mota highlighted Portugal's role in the resettlement of refugees and the reception of asylum-seekers under the European Union framework, including in the placement of migrants rescued in the Mediterranean.  Unaccompanied minors under the age of 16 were not kept in the temporary settlement centres, while those over the age of 16 were only settled there if it was in their best interest, and for a maximum period of seven days.  Such situations were systematically reported to the prosecutor of the Family and Minors' Court.  In 2015, Portugal had been ranked second by the Migrant Integration Policy Index, which assessed the capacity to receive and integrate migrants. 

Questions by the Committee Experts

At the beginning of the dialogue, Committee Experts commended Portugal's commitment to the protection and promotion of human rights and looked forward to a dialogue on the progress and challenges in the implementation of human rights under the International Covenant on Civil and Political Rights.

They asked the delegation to provide examples of references to the Covenant by courts and practical examples of its application in domestic legislation.  They inquired about the dissemination of the Covenant to law enforcement officials, the collaboration with civil society on its implementation and the procedures in place to implement the Committee's views and its concluding observations.  What specific remedies were available for a violation of the Covenant?

Ombudsman had been granted A status by the Global Alliance of National Human Rights Institutions, however, there were concerns that its financial resources were insufficient. 

The Committee was pleased to learn that Portugal afforded significant attention to the fight against corruption, which was not surprising since the country had been affected by several high-profile corruption scandals in recent years.  They asked whether corruption was an endemic problem and whether the population supported efforts to uproot it.  The delegation was asked for an update on the bribery case against Angolan vice president Manuel Vicente and the corruption charges against former prime minister José Sócrates.

Experts broached the issue of the scope of the anti-discrimination legislation and sought to ascertain if it adequately covered all prohibited grounds of discrimination outlined in the Covenant.  Was there, for instance, an adequate level of protection for foreigners and people who spoke a foreign language and to what extent were racist, homophobic and other hateful motivations considered aggravating circumstances?

Victims of discrimination had to invest significant efforts in lodging a complaint and remedy and redress process was long. 

Referencing reports from civil society, media and human rights special procedures, Experts remarked on the structural discrimination against certain groups, such as people of African descent, who were significantly overrepresented in the prison population, were more likely to fail in school and represented only one-fifth of the university students.  Furthermore, persons with disabilities were reportedly subjected to forced sterilization and forced abortion and the law did not address intersex genital mutilation. 

Given the lack of racial statistics, how did Portugal identify groups vulnerable to multiple and intersecting forms of discrimination? They also requested information on the access to housing and forced evictions of people of African descent.

Seemingly, underperforming police officers were often sent to serve in districts with majority people of African descent and it appeared that there was often a racist component to instances of police violence and abuse.

What was Portugal doing to investigate and sanction the propagation of hate speech, including online?

Violence against women had become more visible and more people were aware of the issue.  However, the gap between the number of complaints and the number of sanctions handed down pointed to a form of impunity for violence against women, Experts remarked and asked about the steps taken to remedy the situation. 

They requested figures on the representation of women on boards and senior civil service positions.

Replies by the Delegation

The delegation confirmed that civil society organizations had an ongoing, regular dialogue with the National Human Rights Commission and that their comments were considered in the drafting of reports to various treaty bodies.  The Commission was independent and did not report to anyone.  A technical unit within the Government, comprised of civil servants, supported the Commission and reported not to the Prime Minister but to the Cabinet Secretary.

The Ombudsman was appointed by Parliament through a qualified majority, that is two-thirds of the present members.  The mandate of the Ombudsman was four years, renewable once; the mandate-holder could not be removed.  The budget, established by Parliament, had been kept relatively stable over the past few years. 

In its recent dialogue with the Committee Against Torture, Portugal had discussed the need to adapt the budget of the Ombudsman to reflect its additional responsibilities as a national preventive mechanism.  The Committee's recommendation had been communicated to Parliament for decision.  The delegation stressed that the Office of the Ombudsman had been able to discharge its mandate so far.

Responding to questions raised on corruption, the delegation said that the code of conduct, approved in 2016, regulated interaction of civil servants with private entities.  At the end of 2019, Portugal had created a working group chaired by a judge to define a comprehensive national strategy to combat corruption.  The Government had the wherewithal and resources to detect corruption and the population supported its anti-corruption activities.  The delegation underlined the importance of gathering the evidence and building a strong case to ensure a preventive impact of investigations and prosecutions.

The case against José Sócrates was complex and currently in the instruction phase of proceedings.  The case against Manuel Vicente had been transferred to Angolan authorities and was no longer in Portugal's jurisdiction. 

The Criminal Code comprehensively and coherently dealt with discrimination and did not leave any gaps.  The law defined xenophobia and racism as aggravating circumstances in other crimes.  Fighting discrimination had been Portugal's priority for many years, stressed the delegation.

The Commission for Equality and Against Racial Discrimination addressed discrimination based on colour, ethnicity and country of origin.  It could process and lodge the complaints, start administrative proceedings and hand down decisions it proceedings it had launched.  The Commission had received 179 complaints in 2017, over 300 in 2018 and more than 400 in 2019.  Despite this large increase, the Government did not believe discrimination had barrelled out of hand but rather that people were now more aware of the work of the Commission. 

A key component of the effort to tackle racial discrimination was training and awareness-raising of law enforcement officials, including on diversity and intercultural dialogue to combat stereotypes.  Monitoring of the police was ensured internally and by courts.

Portugal had greatly improved monitoring mechanisms on the school pathways of children of African descent and Roma children.  The significant discrepancies in their educational outcomes were linked to social and economic backgrounds.  The measures, including encouraging teachers to adopt an intercultural approach and providing additional support to children whose mother tongue was not Portuguese, had led to a 30 per cent decrease in school dropouts among those groups of children.

Racial discrimination had been separated from migration and a change in the law would be made to fully separate the Commission for Equality and Against Racial Discrimination from entities dealing with migration.  The 2018 law prohibited any intervention on the body of intersex children before their gender identity was manifest, except when there was a risk for the child.

To tackle the increase of hate speech on social networks, the Commission for Equality and Against Racial Discrimination partnered with Facebook to ensure swift blocking of content subject to complaints.

According to Portuguese law, a particular ethnic group could not dominate any class.  The law set forth the principle of diversity, which was used to avoid concentration of one ethnic group.  In 2019, a school in north Portugal had been closed because its pupils were mostly coming from a Gipsy community.  Transport had been provided to those children to enable them to attend another school.

Very few forced medical interventions were carried out on persons with disabilities without their consent and only in life-threatening situations.  In line with the Oviedo Convention [the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine], the Government sought to ensure a free and informed consent on the concerned individual.

The austerity had limited the ability of the Government to employ civil servants and had caused delays in the issuance of disability certificates in 2015.

On the participation of women in public administration, delegates explained that, for instance, in the Ministry of Foreign Affairs, three secretaries of State and one director-general were women; women also held two out of three deputy director-general posts.  Portugal had adopted a law that established a threshold for the proportion of women in decision-making positions which had led to a 5 per cent increase in the representation of women in listed companies.  A similar law had established a requirement of 40 per cent female representation in the civil service.

Domestic violence was a public crime and anyone, not just the victims, could denounce it.  Measures had been put in place to protect the victims, such as response centres and shelters, including shelters for women with disabilities.  All the services were free of charge and available to every individual who required them.  An awareness-raising campaign, seeking to foster victim empowerment, had been rolled out. 

The victim was very often the only witness of this crime : while physical violence was easy to prove, it was not the case for other types of violence, such as control and psychological violence.  The arising difficulties in proving the violence explained the discrepancies between the number of complaints and the number of cases in which sanctions had been handed down. 

Questions by the Committee Experts

In the next round of questions, Committee Experts expressed concerns about a "culture of abuse" amongst police forces and requested information on the excessive use of force, the use of body cameras and Taser guns, including in prisons.  While there had been a conviction in the Amadora incident recently, the number of cases and convictions was relatively low - there had been only 25 complaints and they had led to only one conviction.  The delegation was asked to explain the combination of measures put in place to address this issue and whether it was sufficient.

The Experts then pointed to the normative gaps between the Committee's and Portugal's position on criminal defamation.  This was particularly relevant in "slap suits", that is corporation launching strategic lawsuits against journalists and activists.  Portugal was one of the few countries in Europe that still had this offence on the books, which could have negative effects on civic participation. 

As for conditions of detention, overcrowding seemed to be a structural issue in Portugal, with negative implications on detainees' physical and mental health.  Experts sought reassurance that children were not placed in solitary confinement and asked the delegation to provide detailed data on persons so held.

Experts asked about the number of people held in the airport detention centre, the legal grounds used to prolong the detention of migrants and whether "irregular" migrants could be held in pre-trial detention for a period of 48 hours.  Referencing reports, Experts noted that detained individuals had had to sign documents in Portuguese even though they did not speak the language and that administrative hurdles impeded their access to lawyers.  Was it true that their files were stored in facilities other than where they were detained, they asked and also requested the delegation to inform how it ensured that evidence obtained through torture was not used in any legal or administrative proceeding.

Turning to the situation of refugees and asylum-seekers, Experts sought clarification on the role played by prosecutors in the asylum request process and the situation in the temporary reception centres for minors.  Since the number of asylum requests had more than doubled since 2012, there was overcrowding in the reception centres, prolonged detention of asylum-seekers at border points, mainly airports, and an increase in the delay in the processing of requests.  In this context, the Committee was particularly concerned about most vulnerable among them, especially children and female-headed households.

The delegation was also asked how it prevented statelessness and the activities to address trafficking in persons, including to raise awareness on this issue among the population and increase the number of prosecutions.

Replies by the Delegation

A broad range of laws and internal documents regulated the use of force by the police to safeguard the principle of human dignity and human rights as enshrined in the Constitution.  The use of force was fully aligned with international standards, including the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 

The use of firearms, the highest level of force, was the last resort and was carefully monitored.  The use of electric weapons, which could only be used by fully trained law enforcement officials, was regulated by law.  Each and every use of a firearm or an electric weapon had to be reported in detail, including on the grounds for its use.  The use of Taser guns in prisons was a last resort and any intervention involving its use had to be filmed.

Any misuse of force led to sanctions, including fines, reprimands, forced early retirement and dismissal.  Criminal proceedings ran parallel to those sanctions and could lead to dismissal from the force and prison sentences.  Forty-six disciplinary proceedings related to the misuse of force had been launched in 2019 and of those, 18 were awaiting court decisions. 

Any detained person had the right to information in a language they could understand, the delegation said.  Interpreters were brought in to assist when needed; the Government maintained a roster comprised of hundreds of translators covering over 50 languages and dialects.  The General Inspectorate of Home Affairs carried out unannounced inspections to places of detention to ensure procedures were followed.

A human trafficking observatory collected quantitative and qualitative data covering a range of governmental bodies; in particular, it monitored the judicial aspect of the anti-trafficking measures.  The current plan on human trafficking included 130 goals seeking to dismantle the business model of organized crimes and raise awareness. 

The delegation reiterated Portugal's commitment to improving detention conditions and said that the reforms enacted in 2017 aimed to reduce prison overcrowding.  Measures such as releasing inmates on weekends and house arrest with electronic tagging for sentences up to two years had reduced prison population and brought relief to the penitentiary system.  Additional staff had been hired to ensure swift and effective investigations into alleged crimes and so reduce the length and frequency of pre-trial detention.  

Solitary confinement was limited to 21 days but in practice, it did not exceed 15 days, in line with the rules of the Council of Europe and the Nelson Mandela Rules [United Nations Standard Minimum Rules on the Treatment of Prisoners].  While the same rules applied to young inmates, in practice detainees under the age of 21 were kept in solitary confinement for even shorter periods of time.

Measures had also been taken to reduce the turnover of health professionals working in prisons.  Health care services were free of charge to all inmates irrespective of their citizenship or migratory status.  Specialist health services such as psychology, psychiatry, dentistry and gynaecology were offered based on the size and makeup of the prison population.

Any evidence obtained through torture was null and void, delegates added.

On the detention of asylum seekers and migrants, the delegation explained that foreign citizens who did not meet entry requirements and could not be sent back could be detained at the border subject to a judicial ruling.  International protection applicants could be housed in temporary holding centres in certain cases. 

Non-accompanied asylum-seeking children under the age of 16 were not held at temporary holding centres at the border unless it was in their best interest.  As soon as they filed for asylum, they were transferred to the Portuguese Refugee Council which housed them in open housing facilities.  Accompanied minors could only be held at the border for seven days, as set out by the law.  The best interest of the child was always given a priority.

The number of asylum requests had increased from 12,000 in 2018 to 18,000 in 2019 and Portugal was soon opening a new migrant reception centre to reduce overcrowding.  Requests for international protection at the border were processed swiftly and a response was provided within seven days.  Additional staff had been hired to reduce delays in the administrative phase of the asylum application.  Where there was a suspicion of trafficking, the Portuguese Refugee Council launched an appropriate procedure in parallel to the asylum request procedure.

For the time being, the Government was not envisaging changing legal provisions pertaining to criminal defamation, which were balanced and had a high threshold of application.  Portugal was open to considering the modifications to the law on the request of citizens and civil society organizations.

The number of stateless individuals in the country would be provided in writing.

Concluding Remarks

JOSÉ LUÍS LOPES DA MOTA, Judge, Supreme Court of Justice of Portugal, in his concluding remarks said that the application of the Covenant was a work in progress.  Thanking the Experts for their specific and detailed questions, he noted it was by considering the details that one could see the law in action and assess how human rights were being upheld. 

RUI MACIEIRA, Permanent Representative of Portugal to the United Nations Office at Geneva, reiterated Portugal's commitment to upholding all human rights and thanked Committee Experts, civil society representatives and the national human rights institution.

CHRISTOF HEYNS, Committee Expert, in his conclusion noted the value of introspection and dialogues with external partners, such as the one that had just taken place.  He underscored the importance of the issues discussed, including prison overcrowding, forced medical interventions on persons with disabilities and racial discrimination.

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