Committee on the Elimination of Racial Discrimination considers report of Portugal

21 February 2012

The Committee on the Elimination of Racial Discrimination today considered the combined twelfth to fourteenth periodic reports of Portugal on how that country is implementing the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.

Introducing the report, Rosario Farmhouse, High Commissioner for Immigration and Intercultural Dialogue, said that Portugal took a holistic approach to combating racism, promoting the integration of immigrants and Roma communities and encouraging intercultural dialogue. Portugal had undertaken significant efforts to combat all forms of racial discrimination and integrate all groups into Portugal’s multicultural society. Ms. Farmhouse highlighted institutional and legal reforms including the establishment of the National Human Rights Commission, the 2006 National Law which widened the criteria for acquisition of nationality, the Immigration Observatory which stimulated dialogue between academic and political decision makers, and the Strategy for Inclusion of the Roma Communities which focused on education, health, housing and employment. Racial discrimination was a crime under the Criminal Code, carrying a prison sentence of one to eight years. Public awareness had also been raised on diversity, and combating racial stereotypes and prejudices. Three challenging areas were providing remedies for victims of racial discrimination, encouraging victims to report cases of racial discrimination, and helping Roma communities have full enjoyment of their human rights, namely access without discrimination to decent housing, water and sanitation.

During the discussion, Committee Experts acknowledged the innovative measures Portugal had taken to address integration in a multicultural society but noted concerns about the lack of reference to civil society in the report. Speakers encouraged the State party to improve disaggregated data collection, specifically to name minority groups and to actively solicit Roma participation in the drafting of the national strategy including targets and indicators. Committee experts asked about the distinction between the Ombudsman and the National Human Rights Commission. Many speakers commended Portugal on its adoption of communication tools such as the special SOS immigrant line and the positive role played by intercultural mediators.

In concluding remarks, Anastacia Crickley, Country Rapporteur for Portugal, noted Portugal’s commendable record in supporting human rights and urged the delegation to continue to actively engage with non-governmental organizations. Racial discrimination was an issue for new migrants but it would not go away once citizenship was guaranteed. The Rapporteur attached considerable importance to target outcomes for Roma and Cigano people, and encouraged the delegation to adopt innovative mechanisms around life cycle racism and gender issues.

In concluding remarks Rosario Farmhouse thanked the Committee for the constructive dialogue and said all concluding recommendations would be considered, including the need for more detailed data. Ms. Farmhouse invited all Experts to Portugal to learn more about the Government’s work in combating racial discrimination.

The delegation of Portugal consisted of representatives of the High Commission for Immigration and Intercultural Dialogue, Permanent Mission of Portugal to the United Nations Office at Geneva, the Ministry of Justice, the Office of the Ombudsman and the Ministry of Foreign Affairs.

The next public meeting of the Committee will be at 3:00 p.m. on Tuesday 21 February, when it will consider the combined tenth to fourteenth periodic reports of Viet Nam (CERD/C/VNM/10-14).

Report

The combined twelfth to fourteenth periodic reports of Portugal can be read here (CERD/C/PRT/12-14).

Presentation of the Report

ROSARIO FARMHOUSE, Head of the Delegation and High Commissioner for Immigration and Intercultural Dialogue, said that Portugal took a holistic approach to combating racism, promoting the integration of immigrants and Roma communities and encouraging intercultural dialogue. Portugal had undertaken significant efforts to combat all forms of racial discrimination and integrate all groups into Portugal’s multicultural society. The culturally diverse nature of Portugal had been profoundly marked by its migratory history, with an estimated five million Portuguese emigrants all around the world who influenced the collective memory of the country and accounted for the positive policy developments targeting immigrants. The Government’s integrated vision to combating racial discrimination was based on a belief that the phenomenon of racism was global and that there was a need for policies aimed at integrating, promoting and protecting the full enjoyment of human rights.

In March 2010, Portugal created a National Human Rights Commission, an inter-ministerial body to coordinate relevant public institutions on human rights issues. The 2006 National Law widened the criteria for acquisition of nationality by granting citizenship to individuals with a strong connection to Portugal, namely second and third generation immigrants. Two National Action Plans for the Integration of Immigrants, developed since 2007, were essential instruments in the promotion of public policies on immigrant integration. Also in 2007 the High Commission for Immigration and Intercultural Dialogue was created, joining The Immigration Observatory, opened in 2003, in stimulating dialogue between academic and political decision makers on immigration and integration, including ethnic and racial discrimination. A Government programme called ‘Choices Programme’ promoted the social integration of 71,000 children from disadvantaged social backgrounds. From 2010 to 2011 the programme reintegrated over 4,000 children into school with an academic success rate of 82 per cent. Public awareness had also been raised on diversity, and combating racial stereotypes and prejudices.

Racial discrimination was a crime under the Criminal Code, carrying a prison sentence of one to eight years. Allegations of racial discrimination could form the basis of an administrative procedure to the Authority for the Conditions of Works, which received 26 complaints in 2011. Administrative complaints against racial discrimination could also be made against any public authority or service. The Government had developed three programmes directed at the Roma Communities in Portugal: a 2009 pilot project for municipal mediators to act as a bridge between Roma communities and public services; 66 projects supporting Roma children within the framework of the Choices Programme; and in 2011 the Portuguese Strategy for Inclusion of the Roma Communities with a focus on education, health, housing and employment. However, three principal areas still required further attention: remedies for victims of racial discrimination so the Government would be more effective in its goal of preventing and punishing discriminatory conduct; the lack of reporting of cases of racial discrimination by victims to the authorities; and helping Roma communities have full enjoyment of their human rights, namely access without discrimination to decent housing, water and sanitation.

Questions from the Experts

ANASTACIA CRICKLEY, Country Rapporteur for Portugal, acknowledged the innovative measures Portugal had taken to address integration in a multicultural society but noted concern about the lack of reference to civil society, both in the report and their presence as participants in the meeting. The Rapporteur asked what challenges the Government faced in translating European Union policies into national legislation to fight discrimination and racism. The Rapporteur encouraged the State party to improve disaggregated data collection so as to better understand and monitor the ethnic mix of the population and which ethnic groups were the most vulnerable to racial discrimination.

The Rapporteur noted that there were up to 2,000 undocumented migrants in Portugal; as all of the Government’s efforts at integration referred to legal migrants, what policies were in place to support illegal migrants? The Rapporteur was disappointed that there had not been a greater focus on Roma in the report and said that the Roma community continued to face discrimination in the provision of housing and other services, such as the switching off of water and other services to ensure that the Roma left locations prior to forced evictions. How would the Government actively solicit Roma participation in the drafting of a strategy for their integration and what targets and indicators would be used for the integration of the Roma community? Ms. Crickley raised the issue of discrimination experienced by minority woman and asked if the Ombudsman was the national human rights commission. What awareness-raising had taken place in the media to fight discrimination and how had the Choices Programme worked to actively eliminate discrimination?

An Expert noted that there was no clear provision on the primacy of the Convention in Portuguese domestic law. Although Portugal had a definition of racial discrimination that was similar to that in the Convention, the criminal code referred to feelings and intentions, which could be subjective and was of concern to the Committee. The report mentioned major ethnic groups without defining them; what was the breakdown among migrant groups from Moldova or other countries? An Expert recommended that Portugal ratify the Convention on the Rights of Migrant Workers. The Committee had received reports from young African migrants who had experienced challenges in integrating into Portuguese society; could the delegation provide information on that issue?

Portugal was commended on its adoption of innovative communication tools such as the special SOS immigrant line which provided translation services in sixty languages via the telephone. Many Experts noted the positive role played by intercultural mediators and asked for more information on their use and effectiveness. What activities had been undertaken by the Government to mark the International Year for People of African Descent in 2011? What effects have the economic crisis had on different migrant or ethnic communities in Portugal?

Experts raised a number of issues on how discrimination was fought through legal procedures, notably what progress had been made in widening the scope of general aggravating circumstances, and how the law been applied in permitting non-governmental organizations to intervene as assistants to victims in cases of racist or xenophobic actions?

The report of Portugal stood out for its commitment to fight racism and the efforts of the State party to implement the recommendations of the Committee. Constitutional reform had given rights to indigenous people especially in the process of drafting policies for development. The new law on asylum had improved access to asylum. However racism based on generalizations from the extreme right continued – what was being done to combat that discriminatory movement, especially on the internet?

An Expert asked about the definition of ethnic minorities in Portugal as the report only referred to the Roma as an ethnic minority; what was the significance of non-recognition as that would impact the ability of persons from ethnic groups to seek protection from the law. Could individuals self-indentify themselves as a minority group? The Government was encouraged to reconsider the importance of defining and naming minorities to ensure that these groups understood what benefits and services were available to them.

The revision on the Law on Nationality of 2006, which had allowed certain immigrant descendants to integrate into society, was welcomed. Why was positive discrimination to integrate members of minority groups into the security forces and law enforcement agencies forbidden under the constitution? Would the Government consider revoking and explicitly breaking with the racist policies of past governments?

Experts noted that the emphasis on learning Portuguese, but said many studies had shown that learning in first languages was beneficial – what provisions did schools have? How was the history of Portuguese colonialism taught and portrayed in textbooks in the country?

A report from the Social and Human Sciences Institute in 2009 noted an increase in the number of complaints regarding racism in Portugal without an increase in the conviction rate of those accused of racial discrimination. A lack of complaints was not necessarily a positive sign that racism was not practiced but rather a sign that the law had not provided redress for victims of racial and ethnic discrimination. The Committee was concerned about reports that far-right and racist groups combined as a force, and that the far-right had become more organized. Had the same policies to combat racism been applied in the Azores?

During Portugal’s Universal Periodic Review 89 recommendations were made of which Portugal had accepted 71; 21 had already been implemented, one was rejected and 17 others were examined later, with all but one being accepted. Those recommendations dealt with issues that impacted the Convention, such as child labour, measures for vulnerable groups and strategy for equality of gender. However on one critical issue, the provision of data by ethnicity, Portugal accepted the recommendation but said its constitution forbade the collection of data based on race.

Response by the Delegation

SOTTO MAIOR, Chief of Cabinet of the Portuguese Ombudsman, confirmed that the Office of the Ombudsman was the national human rights institution with a broad mandate for the protection and promotion of human rights. The Ombudsman inspected prisons, police stations and detention centres and could issue recommendations to the Parliament as it had done recently by issuing a recommended code of conduct on good behaviour for Government bodies. Concerning the Roma, the Ombudsman had taken note of the European Committee on Social Rights’ decision that Portugal had violated the European Social Charter on the Roma and an Ombudsman’s investigation had noted that some discriminatory practices which resulted in minimal intervention. The Ombudsman had encouraged the Government to continue its ongoing drafting of a National Roma Integration Strategy. There was a need for fundamental human rights public awareness programmes so that all citizens could defend their rights against discrimination. The Ombudsman increased training and awareness-raising through meetings with non-governmental organizations. For example, there was a plan to provide cities with a computer available to all citizens to register online complaints with a public officer.

ROSARIO FARMHOUSE, High Commissioner for Immigration and Intercultural Dialogue, stressed that disaggregated data along ethnic and racial lines was only one way to eliminate discrimination and explained that the Portuguese Constitution would not permit the collection of such data due to the country’s unique history. Portugal had no national minorities because of its colonial past, when race was a common element used to categorize people. The 1974 revolution and subsequent legislation had granted an absolute respect for equality of treatment and non-discrimination to all and the adoption of any kind of public policy involving the concept of race or ethnicity would provoke profound shock in Portuguese society.

here were 440,000 foreigners in Portugal; the majority, over 28 per cent, were from Brazil; 11.1 per cent from Ukraine; 9.8 per cent from Cape Verde, 8.2 per cent from Romania; 5.2 per cent from Angola, 4.4 per cent from Guinea-Bissau, 3.8 per cent from the United Kingdom; 3.5 per cent from China and 3.5 per cent from Moldova.

The Mirandese group was not considered a minority but in 1998 Parliament granted the Mirandese language, which had fewer than 5,000 speakers, official recognition with Portuguese at a local level. The two Autonomous Regions of Azores and Madeira each had their own political and administrative statues and self-governing institutions, including legislative assemblies and regional governments, but the same human rights legislation applied in these autonomous regions.

Article 8 of the Constitution specified that there was no need to transpose into domestic law international treaties ratified by the Government as international treaties took precedence. Concerning aggravating circumstances, Portuguese law was in compliance with the Convention because a judge would examine a combination of a will to act and the intention in application in the aggravating circumstances. The Association of Migrants could represent the victim in an administrative and civil case but in criminal cases there was a limit to their assistance. The primary reason that discrimination complaints were so low was due to a lack of confidence in the judicial system, which was perceived as cumbersome and complicated. Article 240 of the Constitution related to the role of far right political behaviour and racism in sport; to date there had only been two cases invoking that article. Homicide, threats, and the use of intimidation and materials to promote racism could all be invoked under article 240.

The overcrowding rate in prisons was 102.6 per cent. There were 12,500 inmates, 20 per cent were foreigners, with 50 per cent from Africa and 15 per cent from Latin America. A study by the Observatory noted the potential role of racism in the over-representation of foreigners in the prison system; however the delegation noted that 78 per cent of foreigners were in prisons for crimes related to drugs. From 2007 to 2012 there were no complaints of racial discrimination in the prison system. Detainees were informed of their rights and duties and brochures were provided in multiple languages. From 2009 a new code on prison services reaffirmed the rights of inmates, including the right to be heard and the right to legal counselling. Different meals were provided based on religious beliefs. Human rights standards were taught during initial training of police and the principles of equality and non-discrimination were included in the police code of conduct. There was no ethnic discrimination in integrating minorities into employment in the police or judiciary.

The National Human Rights Commission was created in 2010, following Portugal’s Universal Periodic Review, to tackle the problem of overdue reports on the treaty bodies, facilitate coordination of the internal positions of ministries and to provide a forum for involving civil society in the articulation of human rights policies. The Commission was coordinated by the Ministry of Foreign Affairs and included 12 ministerial bodies. The Commission had met nine times since its creation and with a considerable presence of non-governmental organizations during six of the meetings. Issues discussed with civil society included reform of the European Court of Human Rights, the implementation of the activity plans of the Ministries, Portugal’s next Universal Periodic Review and the fourth periodic report on the Convention on the Rights of the Child. The delegation stressed that the National Human Rights Commission was only an inter-ministerial body and the national human rights institution was the Ombudsman established on the Paris Principles.

The Government launched ‘Portuguese as a Second Language Program’ in 2005 which covered 1,787 students across 35 institutions. In 2004, One Stop Shop Centres were opened across the country to assist migrants with all areas connected to their integration into society, including employment, health and education and language training. Inter-cultural mediators also worked in these centres to provide services to migrants. There were 86 Local Immigrant Integration Support Centres which provided information and also promoted activities in intercultural dialogue. The SOS Immigrant Phone Line had received more than 300,000 calls at the end of 2010. A weekly television show Nos (Us) dedicated to informing immigrant communities about their rights and duties was broadcast every Sunday for 40 minutes and repeated throughout the week.

As a part of the Year for People of African Descent, there was a meeting of the European Network of African descent in Almada, and an exhibition on Africans in Portuguese History at the Belem Tower.

The National Strategy for the Integration of Roma Communities was based on the ten basic common principles of the European Union and was currently before the Council of Ministers for consideration. The strategy focused on the four main areas of education, housing, health and employment and seven transversal areas: knowledge, discrimination, justice and security, gender, citizenship and mediation. Studies would be conducted to better understand the situation of Roma people and would constitute a consultative group with representatives from the Roma community and civil society. A key objective was to reduce school drop-out rates to 20 per cent by 2020. It was planned to sensitize 90 per cent of local housing authorities to the cultural specificity of Roma communities. Roma people were excellent entrepreneurs and the Government would promote their access to work and entrepreneurship. To narrow the gender gap, there would be investments in women mediators, woman associations and a focus on maternity medical care.

The Government had dismantled slums and re-housed families in the 1990s; re-housing measures were implemented mainly by municipalities, non-governmental organizations and religious organizations. Between 2008 and 2009, 2,379 houses were built, rented or improved, benefiting over 6,000 persons. Access to affordable housing by immigrants and minority groups was a special concern for the Government. It was estimated that around five per cent of families in public housing were immigrants, and five per cent of young adults who received housing grants were immigrants.

Portugal’s obligations to the European Union meant it could not ratify the Convention on the Rights of Migrant Workers. The delegation reaffirmed its commitment to human rights and Portugal had recently contributed to the process of strengthening of the treaty body system.

Questions from Experts

ANASTACIA CRICKLEY, Country Rapporteur for Portugal, said she was impressed by the Government’s commitment to intercultural training and education. The Rapporteur agreed that racism was global and required an integrated approach, but how had the Government identified racial discrimination toward citizens? Had racism been identified as an element, for example in life cycle racism, the difference between bullying and racist bullying in schools and how racism applied to women?

A question was raised about the burden of proof in cases of racial and ethnic discrimination: other Committees had taken a position in favour of the reversal of burden of proof for civil cases, but in criminal matters reversal of the burden of proof was not applicable due to the principle of presumed innocence and the collection of evidence by the prosecutor’s office. An Expert asked about the overlap in responsibilities and duties between the Ombudsman, an independent body, and the National Human Rights Commission, an inter-ministerial body.

Portugal had, in theory, no problem recognizing the primacy of international human rights law over domestic legislation, however if the Supreme Court provided a ruling or opinion on that primacy then that would be sufficient. It was important to promote language diversity in European Union countries. It was important not to refer to the Roma as a single group because they themselves had different identities, for example in Portugal they were referred to as the Cigano.

An expert reassured the delegation that the Committee had not advocated racial classifications imposed by the State but rather data based on self-identification. It was increasingly recognized that identity could be multiple, which was not a threat to the public good, but could strengthen understanding. Intercultural education could be a one-way adaptation of the immigrant into society and was critical if it was unbalanced and in favour of a dominant ethnicity. Intercultural should suggest mutuality; to what extent was there a general understanding of cultural difference among Portuguese society?

Response by the Delegation

Foreigners were classified as people who did not have Portuguese nationality irrespective of their regular or irregular status, while immigrants were those who had come to Portugal for economic reasons. There were 422,000 foreigners and not all were migrants as exemplified by the three per cent from the United Kingdom who lived in Portugal but had no intention of obtaining Portuguese citizenship.

Indirect racial discrimination was understood but the discrimination experienced by Ciganos was direct and open. Ciganos spoke Portuguese and could not understand the Roma language, which is why they identified themselves differently. It was critical to have specific measures targeted at Ciganos, but that it was a challenge to explain that to the general population, especially during times of economic crisis. There were specific measures focusing on gender issues in the Cigano community, including a pilot project of mediators consisting of two women and seventeen men.

Concerning the burden of proof, the reversal could be desirable but the evidence would have to be beyond any reasonable doubt. A delegate expressed concern that the legal order in Portugal was not yet ready for such a dramatic change to civil and criminal law. There was no issue for a constitutional Supreme Court decision to make a ruling on the primacy of international law as that was well accepted and understood in the legal system.

The work of the National Human Rights Commission focused on the implementation of State competencies in regard to international obligations and treaties. For example, the Commission drafted reports to international treaty bodies and provided an opportunity to integrate civil society into discussions on human rights policy. The Ombudsman was always invited to Commission meetings, but remained an independent body providing an oversight role of the Government’s work.

Concluding Remarks

ANASTACIA CRICKLEY, Country Rapporteur for Portugal, said Portugal had a commendable record in supporting human rights and an acknowledged leadership role in many important areas. The Committee had focused on the issues of equality of treatment and access. The issue of no complaints was one that was complex, as evidenced by recent research from the European Union which indicated that the majority of people who were vulnerable to racial discrimination had not complained due three reasons: a lack of confidence, from fear, or simply a lack of knowledge on how or where to complain. Ms. Crickely stressed that a wide variety of measures were required to tackle such concerns. The key barrier to achieving an intercultural reality was racism. Racial discrimination was an issue for new migrants but it would not go away once citizenship was guaranteed. The Rapporteur attached considerable importance to target outcomes for Roma and Cigano people, and encouraged the delegation to adopt innovative mechanisms around life cycle racism and gender issues. The Rapporteur encouraged the delegation to actively engage with non-governmental organizations and to support their participation in the Committee’s review.

ROSARIO FARMHOUSE, High Commissioner for Immigration and Intercultural Dialogue, thanked the Committee for the constructive dialogue and assured the experts that all the concluding recommendations of the Committee would be considered, including the need for more detailed data. Ms. Farmhouse invited all Experts to Portugal to learn more about the Government’s work in combating racial discrimination.
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