Human Rights Committee

Concluding observations on the fourth periodic report of Portugal

Addendum

Information received from Portugal on follow-up to the concluding observations *

[7 November 2012]

Principal matters of concern and recommendations

Paragraph 4 – The Committee is also concerned about the significant and increasing wage gap between men and women (arts. 2, 3, 25, 26)

In the written replies from the Government of Portugal to the list of issues of the Committee, there were significant references to measures already undertaken to guarantee equal pay for work of equal value for women and men – see answer to question 6 (paras. 18‑22 of the replies):

Council of Ministers resolutions Nos.49/2007 of 28March and70/2008 of 22April calling for the adoption of equality plans for all companies owned by the State;

The Labour Code (2009), which reinforces the rule of equal pay for equal work or work of equal value for women and men through specific regulations concerning gender equality and non-discrimination;

The IV National Plan for Equality (2011), with measures aiming:

(a)To promote the implementation of equality plans in companies under Council of Ministers resolutions Nos.49/2007 of 28 March and70/2008 of 22April (Measure 20);

(b)To promote the implementation of equality plans in organizations in general (Measure 25);

(c)To promote good practices in gender equality, namely those aiming to reduce the gender pay gap (Measure 26);

The Operational Programme for the Promotion of the Human Potential (POPH), aspecific funding line having been created to stimulate and support the implementation of equality plans in local and central administration as well as in public and private sector companies.

During the oral discussion before the Committee, ample reference has also been made to the important intervention of the Commission for Equality in Labour and Employment (see also the fourth periodic report of Portugal – paras. 10, 42-44, 52-58), which receives and examines complaints in the area of equality and non-discrimination at work.

It has also been mentioned the intervention of the Authority for Working Conditions, which, for several years now, applies administrative sanctions, including fines, to all those found in contravention of the Labour Code and other relevant legislation concerning labour conditions (see paragraph 5 of the Portuguese fourth report).

Breach of the provisions regarding equality is generally punished as a very serious administrative offence and the convictions may be published. Victims are, furthermore, entitled to compensation.

Portugal therefore requests that the Committee reconsider the observation that it is “concerned about the significant and increasing wage gap between men and women”, when one should expect such wage gap to be diminishing, not increasing.

Paragraph 5 – The Committee is concerned that …, immigrants, foreigners and ethnic minorities, including the Roma minority, continue to face discrimination in access to housing, employment, education, equal wages, health care and public services as well as participation in public life. The Committee is also concerned about reports of racist and discriminatory conduct by law enforcement personnel (arts. 2, 25, 26)

In the written replies from the Government of Portugal to the list of issues of the Committee, there were significant references to measures already undertaken to address and prevent racial discrimination – see answer to question 7 (paras. 23-49 of the replies).

The fourth periodic report, before, had already profusely addressed these issues (see for instance, paragraphs 6, 7, 11, 149, 165-169, 171-179, 215-218, 257-261, 262-263, 264, 265-271).

In the oral replies to the Committee, the Portuguese delegation has also addressed the compliance rate of the Action Plan for Immigrant Integration (PII), created by the resolution of the Council of Ministers No. 63-A/2007 of 3 May, namely the 20 per cent of measures that were not achieved under this Plan and the reasons thereto.

And in the additional information document provided to the Committee, after the intervention of the Portuguese delegation before him, new references were made to support given to immigrants, refugees and asylum seekers (see pages 11-12).

It comes thus as difficult to understand why the Committee concludes that “…immigrants, foreigners and ethnic minorities, including the Roma minority, continue toface discrimination in access to housing, employment, education, equal wages, health care and public services as well as participation in public life”.

These are, indeed, some of the areas where there were more innovative changes in the last decade. And for that reason, Portugal has achieved the second place out of a ranking of 28 countries made by the British Council and the European Union Migration Policy Group, the Migration Policy Index for 2007. As for the alleged “reports of racist and discriminatory conduct by law enforcement personnel”, the written replies of the Portuguese Government addressed this issue (see paragraphs. 47-49).

Mention was made of “awareness-raising among law enforcement officers of the need to avoid all forms of discriminatory behaviour on the basis of racial or ethnic origins. Law enforcement officers have also been made aware of the need to pay special attention to minority and cultural diverse groups, as well as to the implementation of the legislation concerning racist offences (art. No. 240 of the Penal Code)”.

Statistics were also provided:

“In the period between 2007 and 2012, the Directorate-General for Prison Services has not received any complaint based on racial discrimination.

In the Criminal Police, since 2007, there is only one occurrence registered: one officer of Guinean origin complained of his superior for racial discrimination. A disciplinary procedure was opened, but the accusation was considered unfounded.

The Inspectorate-General for the Justice Services has no record of complaints for infractions of members of the Criminal Police related to racial discrimination. It has received, in 2010, three complaints against prison guards for discrimination.

Although the number of occurrences of discriminatory conduct by law enforcement officials (depending of the Ministry of Justice) is inexpressive, efforts continue to be made in the field of education and training of police staff, including professional deontology, ethics and human rights.”

Several examples of training and human rights education were also included.

The fourth Portuguese report had also included abundant information on the subject of law enforcement officers and their scrutiny and monitoring by internal and external agencies (see, for instance, paragraphs 12-13, 15-20, 74-83, 85-93).

In the oral discussion before the Committee, the question of the due supervision of all law enforcement agencies was dealt with at length by the Portuguese delegation.

Finally, in the Additional information document provided in writing to the Committee, more information was given in what concerns training courses to law enforcement agencies (see pages 2-4).

The Portuguese Government has thus some difficulty in understanding to which “reports of racist and discriminatory conduct by law enforcement personnel” the Committee is referring to, since no allegations of this kind, besides those already mentioned, were brought to the attention of the Portuguese authorities.

Furthermore, having in mind all the major efforts undertaken to provide law enforcement officers, so far, with adequate and extensive training in human rights issues, especially in the last decade, it is not clear to which “intensified awareness-raising efforts” the Committee is referring to in its recommendation on this issue.

Paragraph 6 – The Committee is concerned that under article 143, paragraph 4, of the Code of Criminal Procedure detainees are prevented from communicating with other persons in cases of terrorism or violent or highly organized crimes, until such time as the detainee is brought before a court (arts. 7, 9, 10)

The written replies given by the Portuguese Government to the Committee addressed the issue of counter-terrorism measures (see paragraphs 50-56), referring, namely, to “mild limitations to the right of defence (such as restrictions on the right to communicate with third persons set forth in article 143 (4) PPC)”.

The fourth periodic report of Portugal addressed this issue in paragraphs 119-121, highlighting the fact that “cases of terrorism are dealt with under the general procedures established by the CPP (Criminal Procedure Code)”. And paragraph 121 of the fourth Portuguese report expressly stated:

“Regarding the concern that exceptional provisions are not abused by State officials we stress the fact that the CCP contains specific rules to ensure the legality of such measures, including the powers of the examining judge, which controls legality during the inquiry and instruction phases. At the investigation stage the inquiry is conducted by Public Prosecution. The powers of the examining judge are limited to those acts pertaining to fundamental rights. He has a jurisdictional and passive role and his mission is to safeguard the rights and freedoms of the accused as well as to ensure the lawfulness of the acts. The role of the examining judge is to try to diminish, as much as possible, the initial imbalance in the ‘equality of arms’ between Public Prosecution and the accused regarding the knowledge of the investigated facts and evidence gathered. There is also the possibility to appeal against legal decisions under the general rules of procedure. Another form of control is exercised through the disciplinary rules binding upon law enforcement agents, as well as through the specific roles and duties of the High Council of the Bench and High Council of Public Prosecution regarding their members (judges and public prosecutors).”

The written reply of the Portuguese Government to question 9 of the list of issues (see paragraphs 57-58), also mentioned:

“The Portuguese law does not allow for incommunicado detention. There are however certain cases where the right of the detainee to contact some persons or to disclose/to have access to information can be limited due to security demands or due to the duty of secrecy during the criminal procedure (especially during the investigation phase).

In the cases of terrorism, violent and highly organized crime, article 143 of the PPC explicitly foresees that, by order of a public prosecutor, the offender may be prevented from communicating with other persons before the first judicial interrogation, except for his/her lawyer.”

The question also arose during the oral discussion before the Committee, where additional information was given as to the fact that the general rules of the Portuguese Criminal Procedure Code do indeed apply in cases of terrorism or violentor highly organized crimes, although due to their complexity, special adjustments were introduced in the law (see paragraph 120 of the Portuguese fourth report).

Article 143, paragraph 4, of the Portuguese Criminal Procedure Code foresees, in fact, as already stated, that “in cases of terrorism, violent or highly organized criminality, the Public Prosecution may determine that the detainee does not communicate with third persons, except for his/her counsel, before the first judicial interrogation”.

But we must keep in mind that according to article 141, paragraph 1, of the same code, the detainee must be brought before a judge at the most 48 hours after his/her detention.

And, of course, judicial supervision, by the examining judge, is always guaranteed through the whole investigation phase.

It is thus to conclude that, according to Portuguese law in force, “the detention ordered by the Public Prosecutor’s Office, under article 143, paragraph 4, of the Code of Criminal Procedure, in cases of terrorism or violent or highly organized crime, is (already) strictly regulated” and “that detainees held under this provision are (always) under judicial supervision, and that limits on their communication with third persons are stringently reviewed by the judiciary”.

It seems, thus, the recommendation of the Committee on this issue may arise from a misunderstanding of the information already provided by the Portuguese Government on the subject. Therefore, Portugal requests that in the light of the above, the Committee reconsider this recommendation.

Paragraph 7 – The Committee is concerned that time spent in custody for identification purposes, which is carried over into a detention for a suspect crime, is not counted as part of the 48-hour period within which a detained person must be brought before a judge, and that persons suspected of crime are not afforded the protections of criminal suspects during this period (arts. 7, 9, 10)

This issue was the object of information provided by the Portuguese Government in the written reply given to issue 12 of the list of issues (see paragraphs 64-67).

It was then stressed (see paragraph 64):

“The detention of an individual for identification purposes (art. 250 PPC) should not be mistaken for a coercive measure per se. Indeed, detention for identification purposes is a police measure that consists in taking a person to the nearest police station following the frustration of regular identification by means of personal official documents, such as an ID, and constraining him/her to remain there for a limited period of time (up to six hours) in order to perform the procedures allowing for his/her identification (fingerprints, DNA).”

The question arose, once more, during the oral discussion of the fourth Portuguese report before the Committee and the Portuguese delegation had the possibility to explain that in that phase, no suspicion existed yet, and might never exist, of a crime having been perpetrated by the person brought to the police station for identification purposes. This means this person may never be seen as a suspect of a criminal offence by law enforcement officers.

There seems thus that no overlapping exists between this coercive measure, for identification purposes only, that has to be dealt with within six hours, at the most, and the period of 48 hours that is to be taken into account once the person is suspect of having perpetrated a criminal offence.

In the identification phase, the person is not a suspect, but only a citizen having to ascertain his/her identity. So, the person is not afforded the protection of criminal suspect, because he/she is not a suspect and might never be.

The Portuguese Government fails thus to understand the scope of the Committee’s view, according to which “the State party should take measures to ensure that time spent in custody for identification, which is carried over into a detention for a suspected crime, is considered part of the 48-hour period within which a detained person must be brought before a judge and that such time is not misused to circumvent the rights of persons detained on suspicion of crime” .

In fact, once the person is considered a suspect, the time limit of 48 hours begins, during which he/she must be brought before a judge. But that does not mean the “time spent in custody for identification is carried over into a detention for a suspected crime”. One thing is an identification procedure, another, quite different, being suspect of a criminal offence. Therefore, Portugal requests that the Committee reconsider this recommendation.

Paragraph 8 – The Committee is concerned that law enforcement officials do not always inform detainees of their right to legal counsel from the time of arrest, and that some detainees in ordinary criminal cases have not been allowed to contact a third party whilst in police custody (arts. 7, 9, 10)

The fourth Portuguese report already mentioned, in paragraph 185 (see also paragraph 111):

“Concerning the right to legal assistance, it should be mentioned that the 2008 revision of the CCP has extended this right (previously recognized only as from the ‘first judicial examination of detainee’) to include all the defendant’s examinations carried out at the inquest phase, by the Public Prosecution, and in all the remaining phases of the procedure, by the judge (CPP arts. 64 (1) (a) and 144 (3) and (4)).”

The written reply of the Portuguese Government to question 13 of the list of issues added that “a person who is detained is granted status of arguido (suspect with the status of party to the criminal process) in order to enjoy certain rights, including the right to be assisted by a counsel of his own choosing. The individual is mandatorily informed of the acquisition of such criminal procedural status and of what it implies in terms of rights and duties, including the right to be assisted by a counsel”.

Furthermore, it was explained: “As referred to in article 3 of the RCDCPF, applicable to all detention facilities existing within the Criminal Police and under its administration, every person deprived of liberty should be immediately informed, in a comprehensible manner, of the reasons of the detention and on his/her rights. These rights can be exercised from the immediate moment of detention. In addition, they are visibly posted in an information panel in all detention facilities and are compiled in a leaflet available in various languages and handed by the Criminal Police to anyone who is detained.”

Finally, reference was made to the fact that: “The information on the right to a counsel and to communicate with a family member, person of trust, embassy or consulate as well as the delivery of the information leaflet must be documented by means of a statement signed by the detainee indicating that he/she has been informed. In order to allow for the communication with the counsel, the Criminal Police has to provide the detainee with the use of a telephone. Finally, article 30 (1) of the Regulation expressly refers to the right of the detainee to contact with his counsel, orally or in written at any time of day or night.”

This issue arose, again, during the oral intervention of the Portuguese delegation before the Committee, references having been made, again, to the relevant domestic provisions on the subject.

It was then stated “that detained persons have indeed an effective right of access to legal counsel of his own choosing during police custody and law enforcement officials are under a strict legal duty to inform of their rights all persons deprived of their liberty. Persons held by the Judicial Police, for reasons other than identification purposes, are guaranteed the right to notify their detention to a third party, normally a relative and this contact has to be documented by means of a statement signed by the defendant himself”. And copies of the before mentioned leaflet and other relevant materials, in several languages, were handed over to the Secretariat of the Committee, for further consideration. Therefore, Portugal requests that the Committee reconsider, the recommendation on this issue, stating:

“The State party should ensure that detained persons have an effective right of access to legal counsel from the time they become subject to police custody, and that law enforcement officials abide by the legal duty to inform all persons deprived of their liberty of their rights. The State party should also take steps to ensure that persons in police custody, including those held by the Judicial Police, are guaranteed the right to notify a third party of their detention, subject only to clearly defined and time-limited exceptions aimed at protecting legitimate interests of the police investigation.”

The information already provided to the Committee confirms this is already what is happening in Portugal across all law enforcement agencies.

Paragraph 9 – The Committee is concerned that the average pretrial detention time is excessively long, with approximately 20 per cent of pretrial detainees spending more than one year in detention. It is also concerned that pretrial detainees have been held together with convicted criminals (arts. 9, 10)

The question of pretrial detention was dealt with in the fourth Portuguese report (see paragraphs 112-118).

It was then stressed:

“Significant amendments were introduced into, among others, rules concerning pretrial detention, in order to reduce the application of this measure and ensure that it is applied only as a measure of last resort, in accordance with its subsidiary character. Pretrial detention can only be applied if other measures prove to be inadequate or insufficient, and preference has to be given to house arrest (namely monitored through electronic surveillance), in line with article 28 of the CRP according to which pretrial detention may not be ordered or maintained where it can be replaced by bail or some other more favourable measure available under the law. A trial programme on electronic surveillance was implemented in 2002‑2004, leading to an increase in the application of this measure (from 44 cases in December 2002 to 522 cases in December 2008).”

As already mentioned in the fourth Portuguese report, the application of pretrial detention requires the fulfilment of specific and strict requisites, namely the duration of imprisonment imposed on the offender, which was increased from 3 to 5 years.

The investigation judge (in the inquiry phase) cannot order a more serious coercive or pecuniary measure than the one requested by Public Prosecution.

Act 48/2007 also amended rules concerning re-examination of the requirements for the imposition of pretrial detention. At present, both pretrial detention and house arrest shall be re-examined ex officio at any time regardless of a prior request from the accused or Public Prosecution and the examination is mandatory whenever the accusation has been issued.

Finally, time limits to conclude the inquiry can be postponed up to a maximum of three months, extendable only once if the case refers to allegations of terrorism, highly organized crime, violent crime and especially violent crime. In this last case the time limit should be objectively determined as crucial to the investigation. These new rules were approved in order to ensure that the inquiry is undertaken in the shortest possible time and that, in compliance with legal deadlines, the case is dismissed or an accusation is issued.

In its written reply to question 11 of the list of issues, the Portuguese Government provided the Committee, once again, with information on the subject (see paragraphs 60‑63), stating that as of 15 August 2012, there were 2,586 individuals in pretrial detention, for a total population of 13,402 inmates .

During the oral intervention before the Committee, the Portuguese delegation informed that there was no available data as to the average length of pretrial detention, but this type of detention was subject by law to specific and very restricted time limits.

As already stated in paragraph 113 of the Portuguese fourth report:

“As from September 2007, the maximum time of pretrial detention (under CPP article 215) is 4 months without accusation (previously 6 months), 8 months without a decision by an instructor (previously 10 months), 14 months without condemnation in first instance (previously 18 months) and 18 months without condemnation by final sentence (res judicata – previously 2 years).”

And paragraph 129 of the Portuguese fourth report also mentioned:

“There has been a significant decrease in the imprisonment rate in Portugal due, not only to the increase in the capacity of detention centres, but also to the legislative amendments introduced in 2007 in the Criminal and Criminal Procedure Codes, which increased the scope of application of measures alternative to imprisonment, by: setting up in-house electronic surveillance; reducing the cases in which pretrial detention is applicable; reducing the maximum length of this measure; and streamlining the system of conditional release. Thus, the number of inmates in Portuguese prisons dropped from 13,984 on 31 December 2002 to 10,648 on 31 December 2008, with an overall occupancy rate of 87.1 per cent.”

It is thus to be concluded that the Portuguese Government has already taken important measures, in recent years, to significantly reduce the number of persons in pretrial detention – a decision taken by the judge, not to be forgotten – and to reduce the length of investigations and legal procedures, namely through the definition of specific time limits imposed on them. Therefore, Portugal requests that the Committee reconsider this recommendation.

Paragraph 10 – The Committee continues to be concerned about reports of excessive use of force and ill-treatment by law enforcement officials and members of the security forces, and by the authorization for use of “Taser” weapons under certain circumstances (arts. 7, 9, 10)

The issue of excessive use of force and ill-treatment by law enforcement officials and members of the security forces was extensively dealt with in the fourth Portuguese report (see paragraphs. 12-13, 15-16, 26, 74-83, 85-93, 151-163).

Inspection mechanisms in place were duly identified, as well as the possibility of complaints of crime being received via Internet. Extensive information was also provided on training courses for law enforcement officials, as well as the legal framework concerning the use of force and firearms and the reference to the adoption of the Code of Conduct for the Police Service.

Exhaustive statistics were also provided on complaints received and action taken, either disciplinary or criminal, to investigate cases of ill-treatment or excessive use of force, as well as to punish the eventual perpetrators of such offences.

Following question 14 of the list of issues, a written reply was further given by the Portuguese Government (see paragraphs 71-81), where additional information was provided to the Committee.

It was mentioned, in such a reply:

“Excessive use of force, mistreatment and abuse by Security Forces and Services under the responsibility of the Ministry of Home Affairs is prohibited. Extensive documentation to prevent this kind of reproved behaviour is available. This includes, inter alia, specific rules on the use of firearms, instructions for critical situations (based on the principles of proportionality, necessity and appropriateness – principles that must govern any action), police regulations on places of detention, rules for the use of coercive measures, clear legal regulations to ensure the communication of the rights and obligations of detainees, rules on the requirements to be fulfilled for the application of arrest warrants, norms for the transportation of inmates and rules about the register book of detainees.”

As regards the Portuguese prison system, the Committee was also informed:

“The use of coercive means (physical coercion, use of weapons) may be exceptionally exerted (for instance, in order to put an end to a riot or to avoid an escape or physical or material danger for the prisoner and others) always with respect for the principles of human dignity and proportionality). The procedures regarding the use of coercive measures and the reporting of such use to the Audit and Inspection Service of Prisons are laid down in the Regulation for the Use of Coercive Means in Prison Facilities (approved by an Order of the Minister of Justice, of 3 September 2009). Furthermore, the regime applicable to the use of weapons and electric devices was set in a Regulation approved by an Order of 28 March 2011 and the mandatory procedures framing its use were defined in the Internal Order No. 1/2011.

According to the data reported by the Auditing and Inspection Services of the Directorate-General for Prisons, there were 145 complaints for abuse of force since 2009, of which 125 were dismissed, 5 were subject to punishing measures and 15 are still under appreciation.”

Exhaustive information was also given on complaints concerning members of the National Republican Guard (31 complaints, in 2011, for a total number of 22,336 membersof this law enforcement agency) and the Public Security Police (3 punishments, in 2011, for a total number of 22,965 membersof this law enforcement agency).

The Inspectorate General for Home Affairs received 190 complaints since 2009, of which 17 led to disciplinary procedures and 110 days of service suspension.

During the oral intervention before the Committee, it was further stated, “as to the excessive use of force by law enforcement officials and members of the security forces – question 14, several initiatives have been taken, over the years, to address this scourge: initial and advanced training of members of these officials, consistently monitored and evaluated, the intervention of several inspection mechanisms, either internal or external – for instance by the Ombudsman, Public Prosecution and the Judiciary –, the definition of clear rules on the principles of the use of force (necessity, adequacy and proportionality) and the use of firearms, specific instructions for critical situations”.

The question of the use of Taser weapons was raised during the discussion of the Portuguese report, the Portuguese delegation having expressed, on the occasion, they are very seldomused and always subject to very strict rules.

Furthermore, law enforcement officials entitled to use them are subject to specific training, and adequate monitoring is always performed once the use of Taser weapons has taken place, in order to evaluate the respect for the principles of necessity, adequacy and proportionality.

Portugal therefore requests that the Committee review its recommendation on this subject taking into account all the information submitted and taking into consideration that it was the Government’s intent that such information be as exhaustive as humanly possible.

Paragraph 11 – The Committee is concerned that some prisons are faced with overcrowding, inadequate facilities, and poor health conditions. It is concerned about drug abuse by detainees, as well as the high rate of detainees with HIV/AIDS and hepatitis C. The Committee is also concerned about some reports of physical ill-treatment and other forms of abuse by prison guards at Monsanto High Security, Coimbra Central and Oporto Central prisons (arts. 7, 10)

The questions raised in this concluding observation were addressed in the Portuguese fourth report (see paragraphs 122-137).

It was then stated:

“All arrested persons must, without prejudice to the right to be examined by a doctor of their own choice, be submitted to medical examination as soon as possible and as required by the circumstances, namely if they appear to be injuredor in the light of their health conditions, in order to diagnose diseases or physical or mental problems which may require immediate special measures. Sick detainees in need of specialized care must be transferred to adequate health facilities or provided with previously prescribed medicines; all measures shall be taken to protect the life and health of detainees. Medical examinations of detainees must be made in a reserved location, except if otherwise indicated by the doctor, without prejudice to those security measures as may be required by the circumstances.”

Furthermore, the Committee was also provided with other information concerning health problems within the Portuguese prison system:

“In accordance with the rules of the Portuguese prison system, the time established for the first medical screening of an inmate is 72 hours. Such does not, however, preclude other medical personnel from screening the inmates within a shorter time or in urgent circumstances.

The allocation of medical staff to each prison facility depends upon the respective capacity and occupancy rate. In small prison units, it is mandatory that a doctor is present three times a week and a nurse two hours per day, in order to ensure the care considered necessary as well as the preparation and distribution of medication. In larger prison establishments, there must be a doctor and a nurse daily, from 8 a.m. to 10 p.m., as well as doctors holding different specialities, such as dental care, infectious diseases, psychiatric or gynaecologic care (in the feminine establishments) and also psychological care in direct proportion to the number of inmates at stake. The inmates of prison establishments that do not have all these resources may be followed up in those which have them.

It is foreseen that health-care services in prisons be transferred from the supervision of MJ to the Ministry of Health, and that a number of measures are taken to improve health care in prisons, such as the creation of a unit for continuous health care in the prison context and of security wards in general hospitals. The new Code on the Execution of Sentences establishes that all prisoners are considered users of the National Health Service.”

As far as drug problems are concerned, the fourth Portuguese report stated:

“Portuguese authorities, and especially the Directorate-General of Prison Services, make permanent efforts to fight against the entering and circulation of drugs in prison premises. Thus, in 2008 a report on this issue was elaborated, while inspections and searches very significantly increased.

On the other hand, offers of treatment for drug users have increased and so has the number of inmates benefiting thereof: from 1,116 at the end of 2005 to 1,398 at the end of 2007. It is also foreseen that conditions be developed so as to render more useful the existing units, in order to increase the prison system capacity to act in this field.

A Pilot Programme on Needle Exchange has been implemented, encompassing the disclosure and dissemination of information and counselling sessions directed to prison staff and prisoners. The Regulation of the Programme was approved and, in each prison establishment involved, the respective Internal Rules of Procedure were endorsed. The monitoring and evaluation proceedings are being ensured, encompassing the drafting of questionnaires to prisoners and prison staff. This programme is still in trial period, at the end of which the results obtained will be evaluated and readjustments considered.”

The Committee continued to raise these issues in question 15 of the list of issues. The Portuguese Government, in its written reply, informed the Committee (see paragraphs 82-85):

“Regarding the problem of HIV/AIDS and hepatitis C, prisoners are full-right users of the National Health System and proper health care to prisoners is ensured in prison facilities in articulation with the National Security Service. The Prison Hospital of São João de Deus provides assistance in various medical specialities and it has four internment services: Medical Specialities, Chirurgical Specialities, Infectious Diseases and Psychiatry.

In addition to this, there are several programmes in place with regard to the abuse of drugs and other substances: there are drug-free facilities in five Portuguese prisons, with 116 users as of 11 December 2011, functioning as independent residential units where inmates can be rehabilitated; pharmacological programmes are in place, whose main purpose is to prevent physical deterioration caused by drug abuse when there are no conditions for the implementation of a rehabilitation programme and to provide some sort of psychological support when the patient cannot or will not stop drug abuse or is gravely ill. As for HIV and hepatitis, upon positive testing, prisoners are given individual and specific plans of clinical intervention.

In 2008, a project addressed to prison inmates who inject drugs was implemented in two prisons (Paços de Ferreira and Lisbon), in order to guarantee access to the prevention methods defined in the Programme for Fighting the Propagation of Infectious Diseases in Prisons. A Syringe Exchange Programme was made available in these two prisons. However, and although the project was carried on through the year of 2009, it was cancelled in 2010 due to lack of demand.”

The matter was once more raised during the oral discussion before the Committee. The Committee was informed, on the occasion, detainees wishing to have access to drug-free facilities needed only to present this wish to prison authorities, in order to be transferred to the concerned prison facilities.

The Committee, however, in its recommendation on this issue, states: “The State party should expedite its efforts to address the problem of overcrowding in prisons, including the Angra do Heroismo Regional Prison (Azores), as well as inadequate facilities, availability of drugs and drug dependence, and the high rate of HIV/AIDS and hepatitis C in correctional institutions.”

The Portuguese Government is indeed committed to these issues for several years now, as the detailed information already given to the Committee clearly shows. Especially in what concerns health problems in prisons, there has been a major effort to give the inmates the same rights of any other user of the Portuguese National Health System.

The Committee, furthermore, recommends that the Portuguese Government “should also take steps, legislative or otherwise, to prevent physical ill-treatment and other forms of abuse, including excessive strip searches, by prison guards”.

The issue about “excessive strip searches” (as well as the alleged “reports of physical ill-treatment and other forms of abuse by prison guards at Monsanto High Security, Coimbra Central and Oporto Central prisons”), however, was never brought to the attention of the Portuguese Government by the Committee and is not reflected in any of the available documents issued by the Committee concerning the fourth Portuguese report.

As far as alleged “physical ill-treatment and other forms of abuse” within the Portuguese prison system is concerned, the Portuguese Government can only draw the attention of the Committee to all relevant information it has provided the Committee with, the last element of which integrated the additional information given, after the oral discussion, on question 14 of the list of issues (see pages 2-4). Therefore, Portugal requests that the Committee reconsider this recommendation.

Paragraph 12 – The Committee is concerned that domestic violence continues to be prevalent and that victims of domestic violence often do not report the crime due to traditional societal attitudes (arts. 7, 9)

Information on domestic violence has integrated the fourth Portuguese report (see paragraphs 48-49, 96).

Further information was given, in depth, in the written reply to question 17 of the list of issues (see paragraphs 88-101), which provided information about the relevant changes in the legal framework, the training of members of the Judiciary and the Public Prosecution Department, and the increase in the number of complaints year after year. Information has also been given in what concerns access to physical and psychological rehabilitation for victims and their compensation. Finally information was given on the impact of the III National Plan against Domestic Violence (2007-2010).

The issue was further raised during the oral intervention before the Committee, when the Portuguese delegation had the opportunity to give notice of the most relevant initiatives taken to address this problem:

“First, concerning the legal framework in place, one should mention the fine-tuning of the concept of domestic violence, now covering physical and psychological abuse, and the widening of the concept of victim in order to include violence against ex-spouses or persons with whom the aggressor maintains or has maintained a spousal relationship even if living in separate households. The crime is now an autonomous crime, not dependent upon complaint of the victim and the penalties have been increased. Domestic violence is figuring consistently among the priorities of criminal investigation and prevention since 2007.

There is now a Law on compensation of victims of violent crimes and domestic violence (Law No. 104/2009 of 14 September) and another Law on the legal regime on the prevention of domestic violence and on the protection and assistance to its victims (Law No. 112/2009 of 16 September).

Law enforcement officials, members of the judiciary and the public prosecution have been subject to repeated training on this subject and on the way to deal with victims of this type of criminality and the number of complaints have been steadily increasing thanks probably to repeated awareness campaigns to eradicate this scourge.

As far as the protection of victims is concerned, one should mention the psychological responses in place, the creation of crisis centres, emergency help lines and shelters by public bodies and civil society. For instance, the Portuguese Association for victim support has been playing a major role on this area, as well.

A National Network of Domestic Violence Centres was set up in 2005 to provide an integrated response to cases of domestic violence and to improve existing resources. National coverage was achieved on January 2009 (18 districts) and currently there are 36 shelters with capacity for accommodation of about 619 women victims of domestic violence and their children. Portugal has also been working on minimum standards for victims’ support.

Above all, one needs to mention the concern of having an overall approach to such a complex issue, well revealed by the successive National Plans against domestic violence, the fourth of which is now in place, and the need to deal with it in an integrated perspective, namely not forgetting the role of adequate counselling to the offenders.”

The Committee was also informed on the use of alternative measures to imprisonment regarding the type of offenders of this crime, namely the increased use of electronic surveillance and their participation in training courses, in order to avoid the perpetration of new offences.

And further extensive information was submitted to the Committee, in the Additional information document forwarded to the Committee after the oral intervention of the Portuguese delegation (see information provided on question 17 of the list of issues, pages 4-10).

In the light of all the relevant information it has provided the Committee with, the Portuguese Government hopes it has sufficiently illustrated its determination to continue intensifying its efforts to combat and prevent domestic violence, ensuring that victims have effective access to complaint mechanisms and to adequate means of protection, including shelters set up for women victims.

Cases of domestic violence remain a priority in the criminal justice system, both in terms of prevention and punishment, and reported cases are effectively investigated and perpetrators brought to justice and sanctioned, namely through imprisonment penalties imposed on them.

Paragraph 13 – The Committee is concerned that the State party continues to be a destination, transit and source country for women, men and children subjected to trafficking for sexual exploitation and forced labour. It is also concerned that article 160 of the Penal Code employs an overly broad definition of trafficking that includes lesser crimes, complicating the assessment of the extent of prosecution, conviction and sentencing of trafficking offenders (art. 8)

Information on trafficking in human beings has integrated the fourth Portuguese report (see paragraphs 97-108).

Further information was given in the written reply to question 19 of the list of issues (see paragraphs 107-119), which provided statistical information and gave notice of the First National Plan against Trafficking in Human Beings. Reference was also made to the creation of a Shelter and Protection Centre (CAP) and of an Observatory on Trafficking in Human Beings.

The issue was further raised during the oral intervention before the Committee, when the Portuguese delegation had the opportunity to inform:

“On trafficking on human beings, either for sexual or other exploitative purposes, although the number of reported victims in recent years is still relatively small, the number of tried cases and convictions is increasing.

Furthermore, the conception of national plans against trafficking in human beings is allowing for an integrated approach to this issue, with the creation of a Shelter and Protection Centre (providing protection/safety, medical, legal and psychological assistance, translation and access to official programmes, aiming to support victims and their reintegration process). An Observatory on trafficking in human beings has also been set up.

Investment was furthermore made in intervention areas concerning prevention, awareness-raising, training and investigation.”

And further information was submitted to the Committee on this issue, in the Additional information document forwarded to the Committee after the oral intervention of the Portuguese delegation (see information provided on question 19 of the list of issues, pages 14-17).

In the light of all the relevant information it has provided the Committee with, the Portuguese Government hopes it has sufficiently illustrated its determination to continue, intensifying its efforts to combat trafficking in persons and changing its methods of collecting and reporting data in order to present a more useful description of the legal response.

As for statistical data, these will continue to be collected, in order to ascertain the number of victims of the crime of trafficking for sexual and other exploitative purposes, such as forced labour, as well as the number of prosecutions and convictions of perpetrators.

Paragraph 15 – The State party should widely disseminate the Covenant, the text of the fourth periodic report, the written responses it has provided in response to the list of issues drawn up by the Committee, and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country, as well as the general public. The Committee also suggests that the report and the concluding observations be translated into the official language of the State party. The Committee also requests the State party, when preparing its fifth periodic report, to broadly consult with civil society and non-governmental organizations

The issue of human rights information, education and training was addressed in the fourth Portuguese report (see paragraphs 34-37).

Further information was provided in the written reply to question 21 of the list of issues (see paragraphs 130-134).

And more information was given during the oral discussion before the Committee and afterwards, in the Additional information document submitted by the Portuguese Government (see pages 18-20).

The information the Committee is referring to, in its recommendation on this issue, will be made available at the Prosecutor General’s website (http://direitoshumanos. gddc.pt/2_1/IIPAG2_1.htm), as is the case, for several years now, in what concerns all United Nations treaty monitoring bodies and the reports submitted to them by Portugal in previous years.

During the oral discussion, the Portuguese delegation has also informed the Committee that civil society and non-governmental organizations were consulted for the preparation of the fourth Portuguese report on the International Covenant on Civil and Political Rights.