Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Visit to Portugal undertaken from 1 to 10 May 2018: observations and recommendations addressed to the national preventive mechanism

Report of the Subcommittee * , **

Contents

Page

I.Introduction3

II.National preventive mechanism3

III.Recommendations addressed to the national preventive mechanism4

A.Recommendations relating to institutional and structural issues4

B.Recommendations on methodological issues6

IV.Final recommendations9

Annexes

I.List of places of deprivation of liberty visited by the Subcommittee10

II.Places of deprivation of liberty visited jointly by the national preventive mechanismand the Subcommittee11

III.List of government officials and other persons with whom the Subcommittee met12

I.Introduction

1.In accordance with its mandate under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture carried out its first regular visit to Portugal from 1 to 10 May 2018.

2.The Subcommittee members conducting the visit were: Nora Sveaass (head of delegation), Satyabhooshun Gupt Domah, Roberto Michel Fehér Pérez, Kosta Mitrović and Margarete Osterfeld. The Subcommittee was assisted by three Human Rights Officers from the Office of the United Nations High Commissioner for Human Rights (OHCHR), two United Nations security officers and four interpreters.

3.During the visit, the Subcommittee conducted visits to police stations and penitentiary, health, psychiatric and migration detention facilities (annex I). The Subcommittee also observed the work of the national preventive mechanism during two visits to places of deprivation of liberty (annex II). The Subcommittee held meetings with representatives of numerous Portuguese government authorities and government officials, parliamentarians, the ombudsperson, as the designated national preventive mechanism of Portugal, and members of civil society (annex III).

4.Meetings held with staff members of the national preventive mechanism permitted the Subcommittee to discuss the mechanism’s mandate and working methods and to explore ways to strengthen and increase its effectiveness. In order to better understand how the mechanism works in practice, the Subcommittee delegation also visited, together with the mechanism, two places of deprivation of liberty. The first visit was led by the national preventive mechanism, with members of the Subcommittee as observers; the second visit was conducted jointly with the mechanism.

5.In the present report the Subcommittee sets out its observations and recommendations addressed to the national preventive mechanism of Portugal. These recommendations are made in accordance with the Subcommittee’s mandate to offer training and technical assistance and to advise and assist national preventive mechanisms, in accordance with article 11 (b) (ii) and (iii) of the Optional Protocol.

6.The Subcommittee will send a separate confidential report to the authorities in which it will make specific recommendations to the State party.

7.The present report will remain confidential unless the mechanism decides to make it public.

8. The Subcommittee recommends that the mechanism make the present report public and requests that it be notified of the mechanism ’ s decision in this regard.

9.The Subcommittee draws the mechanism’s attention to the Special Fund established under article 26 of the Optional Protocol to the Convention. Recommendations contained in those Subcommittee visit reports that have been made public can form the basis of applications to benefit from that Fund, in accordance with its published criteria.

10.The Subcommittee wishes to express its gratitude to the national preventive mechanism of Portugal for its assistance and cooperation during the visit.

II.National preventive mechanism

11.Portugal ratified the Optional Protocol against Torture on 15 January 2013. On 23 May 2013, the Subcommittee was notified that the Provedor de Justiça (ombudsperson) had been designated as the national preventive mechanism by resolution of the Council of Ministers dated 9 May 2013.

12.In addition to serving as a national human right institution, the ombudsperson therefore carries out unannounced visits to places of deprivation of liberty, such as prison facilities, educational centres, police detention facilities and psychiatric institutions. In accordance with the resolution of the Council of Ministers, the ombudsperson also has the power to make recommendations to the relevant authorities and may submit proposals and observations on existing legislation or draft legislation relating to matters under the Optional Protocol.

13.In order to fulfil the functions of the national preventive mechanism, a support structure assists the mechanism in performing its tasks, namely, identifying places of detention, planning and conducting visits and obtaining and analysing data. The support structure is composed of an Advisory Council, a Steering Committee and a Visitors Team. The Advisory Council is comprised of 12 members, including the presiding ombudsperson. The Steering Committee is composed of three persons and develops the annual activity plan and plans for the visits of the mechanism. For most of the visits, one member of the Steering Committee is present. The Visitors Team, which carries out visits to the places of detention, is composed of nine staff members of the ombudsperson’s office appointed for that purpose on account of their experience and knowledge.

14.Due to the absence of a dedicated budget for the national preventive mechanism, the ombudsperson has to allocate her regular resources to perform the tasks of the mechanism. There are no explicit legislative provisions regarding earmarked funding for the mechanism. This means that there is no specific financial framework or dedicated ring-fenced budget for it. In that connection, the Subcommittee emphasizes that the lack of budgetary independence has a negative effect on the independent functioning of the mechanism.

15.While there is no single model for a national preventive mechanism that is compliant with the Optional Protocol, it is clear that when national human rights institutions are designated as national preventive mechanisms their particular structures must be examined in order to ensure that the mechanism can fulfil its mandate in accordance with the Optional Protocol. Experience suggests that a national preventive mechanism can most effectively exercise its mandate when it is established as a separate unit within the national human rights institution. In Portugal this does not appear to be the case. Moreover, the national preventive mechanism of Portugal should have full operational autonomy with regard to its staff, but it does not. The mechanism does not have any staff working exclusively for it. All the members of the team combine their national preventive mechanism functions with their national human rights institution duties. That situation makes it very difficult, if not impossible, for the mechanism to take a systematic and planned approach to torture prevention.

16.The Subcommittee welcomes the fact that the mechanism, regardless of the scarce resources and limitations due to the way in which it is organized, has been operational for almost five years, has conducted unannounced and announced visits to places of deprivation of liberty in Portugal and has published annual reports, some of which have been shared with the Subcommittee.

III.Recommendations addressed to the national preventive mechanism

A.Recommendations relating to institutional and structural issues

Structure and independence

17.As a general observation, the Subcommittee notes that the national preventive mechanism of Portugal does not have an identity distinct from the ombudsperson, not only with respect to its own resources but also in relation to its institutional framework and guarantees of independence. While the Optional Protocol does not prescribe a unique structure for a mechanism that is compliant with its provisions, it is imperative that the mechanism be able to carry out its mandate in accordance with the principles of the Optional Protocol, as reflected in the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5).

18. The Subcommittee emphasizes that the national preventive mechanism should complement rather than replace existing systems of oversight and its establishment should not preclude the creation or operation of other such complementary systems. In this connection the Subcommittee recommends that the mechanism take the necessary steps, which may include advocating for legislative change, to ensure that it is independent within the ombudsperson ’ s office, with its activities and functions clearly differentiated from those of the ombudsperson and with a mandate to act in its own capacity.

19. The Subcommittee also recommends that the mechanism, in close cooperation with the relevant authorities, review the legal framework in which it operates so as to bring it into full conformity with all the relevant international norms and guidelines, with a view to solving existing or potential issues that may hinder the mechanism from carrying out its mandate effectively and independently. In reviewing its framework, the practical needs and the operability of the mechanism also have to be taken into account. Furthermore, the simplification of the support structure has to be taken into consideration in order to make the mechanism more fully operational and effective.

Human and financial resources

20.The Subcommittee is concerned that although the ombudsperson has been designated as the national preventive mechanism sufficient additional resources, including human resources, have not been allocated for this purpose. The Subcommittee stresses that, pursuant to article 18 (3) of the Optional Protocol, the necessary resources must be made available for the functioning of the mechanism. Without proper resources, including in terms of staffing, the mechanism cannot fulfil its preventive mandate properly and adequately.

21.The Subcommittee is also concerned that the authorities have not allocated the necessary resources because they do not consider that the national preventive mechanism needs additional support in order to carry out its mandate effectively. The Subcommittee does not agree with such an assessment. For instance, in 2015, the Parliamentary Committee on Constitutional Affairs, Rights, Freedoms and Guarantees did not approve the ombudsperson’s proposal for three staff members to be allocated to work exclusively for the mechanism. During the visit, the Subcommittee was informed that there were finally plans to hire a dedicated staff member to deal specifically with the work of the mechanism.

22.The Subcommittee emphasizes that, in order for a national preventive mechanism to fulfil its mandate effectively, it should have a separate secretariat and its own staff and should be able to have recourse to external experts, including medical experts, interpreters and others, as necessary, when such expertise is not available internally.

23.The Subcommittee is concerned that only nine staff members – that is, those in the Visitors Team – perform the tasks related to the mechanism’s mandate, which affects the ability of the mechanism to fully execute its mandate under the Optional Protocol. An effective system of regular visits to all the places of deprivation of liberty in Portugal cannot function properly with such a limited number of staff, predominantly lawyers, who do not serve exclusively in this function.

24.According to the 2014 report of the national preventive mechanism, the mechanism took steps with the members of the Advisory Council to establish a list of experts who would participate in the visits of the mechanism. In 2016 the national preventive mechanism carried out 53 visits to places of deprivation of liberty. The teams of visitors were composed of the members of the Advisory Council, the Visitors Team and external experts. During the visit, the Subcommittee was informed that the mechanism was predominantly composed of lawyers. In order to be able to carry out visits under the Optional Protocol, the Subcommittee recommends that the visiting team be made multidisciplinary and that medical and other experts be included in the team.

25. Recalling the requirements of article 18 (1) and (2) of the Optional Protocol, the Subcommittee recommends that the national preventive mechanism ensure that its staff have the diversity of background, capabilities and professional knowledge necessary to enable the mechanism to properly fulfil its mandate (CAT/OP/12/5, para. 20). This should include, inter alia, relevant legal and health-care expertise, also giving due consideration to gender parity.

26.Recalling that article 18 (3) of the Optional Protocol obliges States parties to provide national preventive mechanisms with the necessary financial and human resources to undertake their work, the Subcommittee reiterates that the mechanism must be provided with a budget sufficient for accomplishing all of its mandated tasks, in addition to granting it the institutional autonomy to use its resources. This funding should be provided through a separate line in the national annual budget referring specifically to the mechanism (CAT/C/57/4, annex, paras. 11–23) and not through the general budget of the ombudsperson. This funding must be at a level that allows the mechanism to carry out its visiting programme, engage outside experts as and when appropriate, increase its human resources and regularly participate in training, in accordance with its own workplan.

27. In order to ensure the functional and operational independence of the national preventive mechanism and with a view to clearly identifying the nature and extent of these additional needs, the mechanism has to enter into a constructive dialogue with the relevant State authorities in order to ascertain what is needed to permit it to properly fulfil its mandate in accordance with the provisions of the Optional Protocol.

28. The Subcommittee recommends that the mechanism evaluate its financial needs in order to more effectively fulfil its mandate under the Optional Protocol and that it submit proposals to the governmental authorities concerning its financial needs. The Subcommittee also recommends that the mechanism continue to raise with the State party its need for more dedicated staff.

B.Recommendations on methodological issues

Workplan, reporting and follow-up

29.The Subcommittee notes that the national preventive mechanism mainly focuses on detention monitoring activities and that it does so primarily in places where persons are detained under criminal law and less in places such as hospitals and health institutions. Nevertheless, this was mentioned as one of the areas that would be given stronger priority, in particular if a broader composition of the visiting team was made possible. Furthermore, although the mechanism has the legal competence to submit proposals and observations concerning draft legislation, it has not been involved in commenting on draft legislation.

30. The Subcommittee recommends that the national preventive mechanism have a stronger focus not only on visiting places of deprivation of liberty but also on other preventive activities. The Subcommittee also recommends that the mechanism develop an annual workplan that includes all preventive activities, such as commenting on draft legislation, awareness-raising and training activities, in accordance with article 19 of the Optional Protocol.

31.While the Subcommittee notes that reports of visits are prepared and presented to the parliament, it also notes that there is no clear policy concerning the systematic follow-up and dialogue procedure between the national preventive mechanism and the responsible authorities. In addition to making its annual report public, the Subcommittee recommends that the report of the mechanism and its work should be discussed publicly and widely publicized.

32.The Subcommittee is under the impression that some officials in places of detention were not familiar with the recommendations of the mechanism made in follow-up to its visits to their institutions. Therefore, there needs to be greater awareness of the reports of the mechanism and, especially, of the degree to which the recommendations contained in the mechanism’s reports are implemented.

33. The Subcommittee recommends that the national preventive mechanism enter into a continuous dialogue with the responsible authorities and other targets of its recommendations, with a view to ensuring that its recommendations are implemented. Following the transmittal of its visit report to the relevant authorities, the mechanism should develop a strategy for following up on those recommendations and using the report as a platform for dialogue with the authorities of the places of detention visited and the relevant State or other authorities.

34. The Subcommittee further recommends that the mechanism meet with the relevant public authorities directly to discuss the implementation of its recommendations, in accordance with article 22 of the Optional Protocol. Finally, the mechanism should disseminate its annual reports, including by transmitting them to the Subcommittee, for the purposes set out in the Optional Protocol.

Recommendations on visit methodology

Preparation for and conduct of visits

35.During the joint visits to Carregueira Prison and the Navarro de Paiva educational centre for juveniles, the Subcommittee delegation was pleased to note that the staff members of the ombudsperson’s office were well regarded by both the prison authorities and the detainees. The staff were observed to enjoy full access to all places of deprivation of liberty within the prison and had access to all information concerning the number of detainees and the conditions of detention.

36.The Subcommittee noted that the visits were well prepared, the objectives were identified in advance and there was a clear plan for how to conduct the visit. The initial and final talks with the administration of the place of detention took place in a well-structured and conducive environment. Nevertheless, the mechanism should dedicate more time to conducting interviews with detainees than to obtaining information from prison staff.

37.During the joint visits, the Subcommittee delegation observed that the members of the mechanism sometimes introduced themselves, and were often perceived, as representatives of the ombudsperson, because the latter was a more widely recognized and better-known institution. This may lead to confusion about the separate mandates of each institution, both among the detention authorities and the detainees. Furthermore, the delegation noted that the members of the mechanism were not clearly identified as such, did not always systematically introduce themselves to detainees as representatives of the national preventive mechanism and did not explicitly explain their mandate more concretely, including by making a clear distinction between the activities and obligations of the mechanism and those of the ombudsperson. In addition, some exchanges of information with detainees were conducted in the presence or in hearing distance of detention officers.

38. The Subcommittee recommends that all members of the mechanism, including external experts, introduce themselves as representatives of the national preventive mechanism. The Subcommittee is of the view that an appropriate and complete presentation builds trust with the interviewees and facilitates communication and information sharing. In addition, the visiting team should be clearly identified as the national preventive mechanism, for example, by wearing badges or vests, and provide an information leaflet to the authorities and the detainees.

Confidentiality and risk of reprisals

39.The Subcommittee reiterates that the location where the individual interviews take place should be carefully chosen to ensure that the content of the interview remains confidential and that the “do no harm” principle is applied, without exception. The interviewers should also indicate that the interviewees can report any reprisals subsequent to the visit to the mechanism and encourage them to do so. If necessary, follow-up visits should be conducted. The Subcommittee underlines the need to always seek ways to protect those interviewed from possible reprisals, even when there appears to be little risk. During the visits carried out jointly with the mechanism, the Subcommittee noted that at the final debriefings the staff of the mechanism did not mention to the authorities at the place of detention that any form of intimidation or reprisal against persons deprived of their liberty constitutes a violation of the State party’s obligations, in accordance with article 13 of the Convention and article 20 of the Optional Protocol.

40. The Subcommittee recommends that the national preventive mechanism always consider that there is a risk of intimidation, sanctions or reprisals and therefore take steps to address that risk. In addition to the precautions mentioned above, the mechanism should clearly inform the authorities that reprisal of any kind is impermissible, will be reported to the relevant authorities and will be followed up by the mechanism. This is done with the clear intention of ensuring that any reprisals are promptly investigated and that perpetrators found guilty of such acts receive appropriate penalties. The mechanism should also, inter alia, undertake preventive follow-up visits.

41. While noting the high professionalism of many of the members when conducting interviews with the detainees, the Subcommittee recommends that all members of the mechanism participate in regular training, including on interviewing techniques, visiting procedures and skills to detect signs and risks of torture and ill-treatment. Such training should be undertaken with a view to developing working methods and a comprehensive visiting methodology that will highlight institutional and systematic challenges, including those affecting vulnerable populations in places where persons are deprived of liberty. Experienced staff members should train the new members of the mechanism and the external experts on interviewing techniques and should organize regular internal meetings to discuss working methods and experiences based on visits.

Visibility and awareness

42.The meetings held by the Subcommittee delegation with some of the relevant authorities revealed that little was known about the national preventive mechanism per se. Clearly, the mechanism lacks visibility and there may be a lack of understanding of its role vis-à-vis the ombudsperson. The Subcommittee notes that there is limited knowledge of the mechanism among relevant stakeholders, including persons deprived of their liberty, public authorities and other State monitoring bodies, civil society actors and the general public.

43. The Subcommittee recommends increasing the visibility of the mechanism, including through activities that raise awareness of the Optional Protocol and the mechanism ’ s mandate. The mechanism should undertake activities to increase the awareness of the general public, and especially persons deprived of their liberty, about its mission and its mandate. The mechanism should also engage in legislative processes and advocacy, which national preventive mechanisms are encouraged to undertake under article 19 of the Optional Protocol, as this will increase its overall visibility. The Subcommittee also recommends that the mechanism engage in outreach activities and other events, as appropriate.

44. The Subcommittee further recommends elaborating and distributing additional materials on the mandate and activities of the mechanism to personnel and detainees in places of deprivation of liberty and to civil society at large to increase the visibility of the mechanism and enhance understanding about its mandate.

45. In addition, the Subcommittee recommends that the mechanism engage more directly and independently with civil society organizations, including, at a minimum, through the increased participation of civil society organizations in visits and internal training of the mechanism and in dialogues held by the mechanism with the authorities.

IV.Final recommendations

46. In conclusion, the Subcommittee is aware that the national preventive mechanism of Portugal faces challenges regarding its institutional and structural framework. It recommends that the mechanism take a proactive approach and submit to the authorities a proposal to revise its institutional and structural framework within the ombudsperson ’ s office and also proposals on how to secure the necessary human resources, further to a thorough internal evaluation of the level of financial resources needed to adequately fulfil its mandate under the Optional Protocol.

47. In the light of the scarcity of human and financial resources available to the mechanism, the Subcommittee recommends that it also increase its international cooperation with other national preventive mechanisms and national preventive mechanism networks to reinforce its capacities, share information and practices and develop its working methods so as to improve its ability to carry out its mandate under the Optional Protocol adequately.

48.The Subcommittee regards its visit and the present report as the beginning of a constructive dialogue with the national preventive mechanism of Portugal. OHCHR stands ready to provide technical assistance and advice to the mechanism to reinforce its capacity to prevent torture and ill-treatment in all places of deprivation of liberty in Portugal and to make the common goal of prevention a reality.

49.The Subcommittee recalls that prevention of torture constitutes an ongoing and wide-ranging obligation of the State party and that an efficient national preventive mechanism greatly enhances the likelihood that Portugal can fulfil that obligation. The Subcommittee encourages the mechanism to review and strengthen its working methods and to avail itself of training courses to improve its ability to discharge its responsibilities under the Optional Protocol, including by requesting the assistance of OHCHR in following up on the present recommendations.

50. The Subcommittee recommends that, in accordance with article 12 (d) of the Optional Protocol, the national preventive mechanism of Portugal enter into a dialogue with the Subcommittee on the implementation of the Subcommittee ’ s recommendations, within six months of the Subcommittee ’ s receipt of the reply to the present report. The Subcommittee also recommends that the mechanism initiate discussions with the Subcommittee on the arrangements for such a dialogue at the time of the submission of its reply to the present report.

Annex I

List of places of deprivation of liberty visited by the Subcommittee

Penitentiary facilities

Coimbra Prison

Pacos de Ferreira Prison

Porto Prison

Santa Cruz do Bispo Female Prison

Sintra Prison

Police stations

Headquarters of the National Republican Guard in Porto

Public Security Police district police stations in Coimbra

Public Security Police Vila Nova do Gaia Police Station

Public Security Police facility in Bela Vista

Public Security Police division 89 in Sintra

Holding facilities for migrants

Lisbon Airport Immigration and Borders Service holding facility

Santo António detention facility in Porto

Mental health institutions

Medical centre of Conde de Ferreira

Psychiatric hospital of Coimbra

Psychiatric clinic of São José

Psychiatric centre of Lisbon

Annex II

Places of deprivation of liberty visited jointly by the national preventive mechanism and the Subcommittee

Carregueira Prison

Navarro de Paiva educational centre for juveniles

Annex III

List of government officials and other persons with whom the Subcommittee met

Ministry of Foreign Affairs

Luís Cabaço, Deputy Director General of Political Affairs

Vera Ávila, Director of the Department of Political Multilateral Organizations

Raquel Chantre, Head of the Human Rights Division

Alexandra Carreira, Adviser

Ministry of Justice

Celso Manata, Director General for Reinsertion and Prison Services

Ana Horta, Deputy Director General for the Administration of Justice

Rodrigo Carvalho, Head of the Infrastructures Unit, Directorate-General for the Administration of Justice

Maria Cristina Mendonça, Member of the Executive Board, National Institute of Legal Medicine and Forensic Sciences

Carla Moura, Coordinator of the Equipment Conservation Unit, Institute for Financial Management and Justice Equipment

Verissimo Milhazes, Director of the Information and Criminal Investigation Unit, Criminal Police

Helena Leitão, Public Prosecutor, Coordinator of the International Relations Department of the Centre for Judicial Studies

Ida Teixeira, Inspector-Internal Controller

Manuela Almeida Silva, Inspector-Internal Controller

Maria Luísa Pacheco, Deputy Director General for Justice Policy

Sara Almeida, Head of the Unit for Civil Justice, International Affairs Department, Directorate General for Justice Policy

António Folgado, Head of the Unit for Criminal Justice, International Affairs Department, Directorate General for Justice Policy

José Castello-Branco, Senior Legal Adviser, Unit for Civil Justice Directorate General for Justice Policy

João Freire, Head of Cabinet of the Deputy Secretary of State and Justice

Manuel Leonardo Belchior, Coordinator of the Santa Cruz do Bispo Prison

Office of the Prosecutor General

Joana Gomes Ferreira, Public Prosecutor and Director of the Documentation and Comparative Law

Raquel Tavares, Legal Adviser of the Documentation and Comparative Law Office

Ministry of Home Affairs

Ricardo Carrilho, Deputy Secretary General for International Affairs and Management of European Union Funds

Sónia Rosa, Senior Officer

Paulo Poiares, Lieutenant-Colonel, National Republican Guard

Hugo Guinote, Sub-intendant of the Public Security Police

João Ataíde, Inspector Coordinator, Immigration and Borders Service

João Pedrosa, Inspector, Inspection General of Internal Administration

Rogério Soares, Inspector

Ministry of Health

Miguel Xavier, Director of the National Programme for Mental Health, Directorate-General of Health

Paula Domingos, Senior Officer of the National Programme for Mental Health

Eva Falcão, Director of International Relations

Diana Correia, Directorate of International Relations

Ministry of Labour, Solidarity and Social Affairs

Odete Severino, Vice-President of the National Commission for the Promotion of the Rights and Protection of Children and Youth

Célia Chamiça, Coordinator of the International Relations Department of the National Commission for the Promotion of the Rights and Protection of Children and Youth

Sandra Alves, Director of the Department of Social Development of the Social Security Institute

Humberto Santos, President of the National Institute for Rehabilitation

Orlando Costa, Senior Officer, International Relations

Ministry of Defence

Mota Pereira, Director of the Military Prison

Letícia Bairrada, General Directorate for National Defence Policy

Parliamentary Committee on Constitutional Affairs, Rights, Freedoms and Guarantees

Bacelar de Vasconcelos, Member of Parliament, President of the Committee

Sandra Pereira, Member of Parliament (Social Democratic Party)

Filipe Neto Brandão, Member of Parliament (Socialist Party)

Sandra Cunha, Member of Parliament (Left Block)

National Preventive Mechanism of Portugal

Maria Lúcia Amaral, ombudsperson

João Portugal, ombudsperson’s office

Miguel Coelho, ombudsperson’s office

Members of the national preventive mechanism

Civil society

Catarina Prata, Advocacy and Research Coordinator of Amnesty International Portugal

Pedro Matos Aguas, Coordinator of HIV/AIDS programme of the Anti-Discrimination Centre (CAD)

Sara Malcato and Gonçalo Aguiar, Associação ILGA Portugal – Intervenção Lésbica, Gay, Bissexual, Trans e Intersexo