Common core document forming part of the reports of States parties
[Date received: 27 August 2014]
II.General information about the reporting State2–43
III.Demographic, economic, social and cultural characteristics of the State5–573
B.Social, economic and cultural indicators18–576
IV.Constitutional, political and legal structure of the State58–19512
B.Political and legal framework of the State63–11813
C.Administration of justice119–18022
V.General framework for the protection and promotion of human rights196–46137
A.Acceptance of international human rights norms196–22337
B.Legal framework for the protection of human rights at the national level224–28039
C.Framework within which human rights are promoted at the national level281–40348
D.Reporting process at the national level404–40968
E.Other related human rights information410–46169
Annexes ** *
This core document was updated mainly on the basis of data available for the years 2008–2013, since the previous core document contained information till 2007. In some cases, we have retained data from previous years for purposes of comparison or because there is no new legislation in place.
II.General information about the reporting State
The Portuguese Republic is a democratic sovereign State, located in South-Western Europe (Iberian Peninsula). Its territory borders with Spain to the North and East and with the Atlantic Ocean to the West and the South, and comprises two autonomous regions in the Atlantic Ocean: the archipelagos of the Azores and Madeira, totalling an area of 92 152 km2. Its capital is Lisbon and the official language is Portuguese. The official currency is Euro.
Portugal became independent in 1143. In the XV century, it began expanding by sea, thus creating an overseas empire that lasted from 1415 to 1975. In 1910, the monarchy was replaced by a Republican system. In 1933, a dictatorship (Estado Novo) was instated, ruling the country until 25 April 1974. A new constitution was adopted in 1976 (by a Constitutional Assembly elected by universal suffrage), providing for a wide range of fundamental rights — civil, economic, cultural, political and social — and ensuring a democratic and multi-party regime, based on the dignity of the human person and on the free will of the people.
Portugal became a Member of the United Nations on 14 December 1955 and acceded to the European Union (EU) on 1 January 1986. It is also a member of several other international and regional organisations, namely the Council of Europe, NATO, OECD and CPLP (Community of Portuguese-speaking countries). It is also part of the Schengen space.
III.Demographic, economic, social and cultural characteristics of the State
On 31st December 2013, the resident population in Portugal was estimated to be of 10 427 301 inhabitants. Of these, 5 469 281 are female (52.3%) while 4 958 020 are male (47.7%). 95.15% of the population resides in the Mainland (10 030 968), 2.34% in Azores and 2.51% in Madeira. The number of people under age 18 years constitutes 17.77% of the population (1 852 958). (tables 1 and 2).
In 2013, there were approximately 401 320 foreign nationals legally residing in Portugal, about 4.0% of the population, showing a decrease of 3.8% in relation to figures of 2012 (417 042). Among the 10 largest communities legally residing in Portugal are those from Portuguese-speaking countries, particularly Brazil, Cape Verde, Angola, Guinea-Bissau and Sao Tome and Principe, that represented 41.9% of the total number of foreign nationals legally residing in Portugal. The Ukraine, Romania, and Moldavian communities are also amongst the most important, representing 34.1%. The number of residence permits were of 398 268, in 2013; 414 610, in 2012; and 434 708, in 2011 (information available in RIFA2013 / intranet http://sefstat.sef.pt/relatorios.aspx.
The number of Portuguese citizens and persons of Portuguese origin living abroad in 2012/2013 amounts to about 4.800.000. This figure includes Portuguese citizens, as well as Portuguese descendants of 1st and 2nd generation. Considering specifically the nationality criterion the number ascertained by the United Nations in 2013 stands at about 2 millions.
In accordance with Census 2011, persons with disabilities aged 5 years or more constituted 17.8% of the population. The rate was higher for females (20.6%) than for males (14.7%). For persons with 65 or more years the rate is 49.5%. Walking (25%) and seeing (23%) were the difficulties or limitations that affected a greater number of persons. The concept of persons with disabilities in Census 2011 includes the population with 5 or more years with difficulties or limitations in basic actions/activities in at least one domain such as walking, seeing, hearing, cognition (memory or concentroation), self-care (dress or take bath) or communication.
Also according to Census 2011, the majority of the population aged 15 or over was Roman Catholic (an estimated 7 281 887 persons), followed by 615 332 without religion and 163 338 of non-specified Christian beliefs. 75 571 persons declared to be Protestant, 56 550 Orthodox, 20 640 Muslim and 3 061 Jewish (table 3). It should be noted, however, that answers to questions on one’s religious beliefs are, according to the Constitution, optional, and therefore these numbers may not reflect the actual reality. Only individuals aged 15 or over answered the question about religion.
Due to a legal constraint, Portugal does not collect data disaggregated by race or ethnic origin. There is a considerably large ROMA community, estimated to have between 40 000 and 60 000 members. Under the National Strategy for Inclusion of the Roma Communities 2013-2020 and given the scarcity of information on Roma communities, not only concerning population size and geographic distribution, but also related to the various aspects addressed by the National Strategy, such as housing, education, health and employment, it was considered imperative to conduct a wide study, in order to collect relevant information for defining and implementing suitable policies. Despite sharing a common origin and cultural values, Roma communities are diversified and widely spread throughout the Portuguese territory and there is the need to better understand the cultural aspects that characterize each community. This study in being carried out with the involvement of different Ministries in order to collect information that will enable an evaluation of compliance with several established targets, while protecting the confidentiality of the data provided by the target group.
The population growth rate, of 0.09% in 2008, changed into a negative growth rate in 2010 (-0.01%), that was accentuated in the last three years, reaching -0.57% in 2013 (table 4). caused by a negative natural growth rate (-0.23%) as well as a negative migration growth rate (-0.35%). Population density has been decreasing: in 2013, Portugal had 113.1 inhabitants per Km2, compared with a rate of 114.7 in 2008. (table 5). The majority of the population currently lives in predominantly urban areas: 69.1%, according to Census 2011 (table 6), mostly in the region of Lisbon, which presents the highest rate of population density: 940 inhabitants per km2.
In parallel with the decrease in population, the trend towards demographic ageing has continued. Between 2008 and 2013, the proportion of young people (under 18 years of age) in relation to the total population went down from 18.7% to 17.8%, while the proportion of older persons (over 65 years of age) increased from 18.0% to 19.8%. The number of older women is significantly higher: 1 212 211 above 65 years of age, compared with 857 632 men. Widowhood mainly affects women due to higher male mortality, explaining the disparity in the crude widowhood rate between men and women: 2.6 per thousand men and 5.9 per thousand women in 2013 (2.7 ‰ and 6.0‰ in 2008).
The working age population (15–64 years of age) declined from 7 033 726 in 2008 to 6 835 604 persons in 2013. The proportion of young adults (15–24 years of age) in the total population went down from 11.3% in 2008 to 10.6% in 2013, and the weight of adult population (25–64 years) decreased from 55.3% to 54.9% over the same period. Overall, there has been an increase in the dependency ratio (percentage of the population under 15 and over 65 years): in 2008, this ratio was of 50.2%, compared with 52.5% in 2013.(tables 7 and 8).
The birth rate (live births per thousand inhabitants) dropped from 9.9 in 2008 to 7.9 in 2013. In 2013, there were 82 787 live births from women residing in Portugal, compared with 104 594 in 2008. Of those, 42 219 were male and 40 567 female, which means a rate of males at birth of 104 (for every 100 female births). There has been a decrease in the number of births from teenage mothers, from 4 592 (4.4%) in 2008 to 2 861 (3.5%) in 2013. (table 9).
In the period between 2008 and 2013, the total fertility rate (TFR) dropped from 1.40 to 1.21 children per woman, the lowest figure ever recorded in Portugal (table 10). In parallel with this downward trend in fertility, an increase in the mean age of women at childbearing has also been observed (30.2 years in 2008 to 31.2 years in 2013 (table 11).The trends that were apparent for some years continued, that is, women in Portugal not only have fewer children, but they also have them later. In fact, there was a drop in fertility rates in the age groups below 34 between 2008 and 2013, against an increase in higher age groups. The mean age of women at first birth rose from 28.4 to 29.7.
In 2013, there were 106 543 deaths of individuals resident in Portugal, corresponding to an increase of 3.5% against the 104 280 deaths recorded in 2008 (table 12). Between 2008 and 2013, the crude death rate oscillated between 9.7 and 10.2 deaths per thousand inhabitants (the figures reported for 2011 and 2013, respectively). Also during this period, there was a general decline in mortality and deaths are more concentrated among persons aged 50 years and over, particularly among older women.
In Portugal the life expectancy at birth has been steadily increasing. In 2011-2013 it was of 80.00 years (76.91 for men and 82.79 for women) against 76.17 for men and 82.19 for women in 2008-2010 (table 13 and 14). It represents an increase of 1.1 years among men and 0.9 years among women over the period 2008-2013.
B.Social, economic and cultural indicators
Portugal is considered by the United Nations Development Programme (UNDP) as a High Human Development Country, ranking 43 in the 2013 Human Development Index.
The right to the protection of health is guaranteed by the Constitution (Art. 64) and ensured, inter alia, through a universal National Health Service (NHS) which is by tendency free, taking into account the economic and social circumstances of individuals and families. It is composed by hospital facilities, local health units, health centres and health centre groups, under the responsibility of the Ministry of Health.
Portuguese citizens and regular migrants pay user fees to benefit from the NHS. Among other exceptions, children up to 12 years of age, pregnant women and recent mothers, patients with 60% or more disability and patients in a situation of economic and social need, as well as dependants of their household, are exempted from paying this fee (Decree-Law n. 113/2011, of 29 November, and further amendments).
Portugal has a National Health Plan (NHP) in force (2012-2016). It is an important tool for resource planning in healthcare, framing objectives, plans and strategies in order to safeguard, improve, or restore the health of individuals and populations in Portugal. There are currently 9 National Health Priority Programmes, each with its own budget: Diabetes, HIV/AIDS Infection, Tobacco Prevention and Control, Promotion of Healthy Eating, Mental Health, Cancer Diseases, Cerebro cardiovascular Diseases, Respiratory Diseases and Prevention and Control of Infections and Antimicrobial Resistance.
Immigrants who do not hold a residence permit or are in an irregular situation also have full access to the NHS, as long as they present a document from a local administration authority certifying that they have been living in Portugal for more than 90 days. They may have to pay the total cost of the medical consultations (not the standard NHS fees). Immigrants who cannot prove residence in Portugal for more than 90 days have access to health care, free of charge, in the following situations: urgent and vital health care; communicable diseases that pose a danger or threat to public health (tuberculosis or AIDS, for example); maternal and child health and reproductive health care; children up to 12 years old; immunization, according to the National Immunization Plan in force, and citizens in situation of social exclusion or proven economic need.
According to the Portuguese Law on Asylum (Law 27/2008, of June 30), applicants for asylum or subsidiary protection, and their family members, are entitled to have access to the NHS in the same conditions as Portuguese nationals. This Law also determines that subsidiary protection is granted to those prevented from returning, or who feel unable to return to their country of nationality or usual residence, either given the systematic violation of human rights or under the risk of suffering serious harm like Female Genital Mutilation, which is condemned under the Portuguese Penal Code.
The infant mortality rate has been continuing its downward trend. In 2001 it was 5‰, 3.1‰ in 2011 and in 2013 it decreased to 2.9‰ (table 15). Deaths due to certain conditions related to pregnancy and foetal growth decreased from 0.23‰ in 2008 to 0.18‰ in 2012.There was a decrease in the percentage of deaths due to congenital malformations of the heart from 2008 to 2012, as well as resulting from respiratory distress of the newborn (table 16). Between 2008 and 2013, the rate of live births below 2 500 grams has increased (from 7.7% of newborns to 8.7%) and is higher among female babies (table 17). Before the introduction of children’s routine vaccination, infectious diseases were the leading cause of death during childhood. Portugal has a successful National Immunization Plan in place for almost 50 years (since 1965), which explains the very high immunization coverage rate of the population (>95%). See tables 18-21.
As for maternal deaths in 2008 it was 3.8 per 100 000 live births and 5.16, in 2011, of which 1.03 were due to abortion (2.01 in 2009) (table 22). In April 2007, for the first time, abortion came to be permitted at the request of a woman, by a doctor in a legally authorised health facility. The overall number of abortions has increased 10% from 2008 (18 607 abortions) to 2011 (20 480 abortions) (table 23) of which 97% were performed at the woman’s request (table 24).
The incidence of AIDS and HIV infection has decreased since 2008 (from 5.78 and 18.00 per 100 000 inhabitants, respectively, to 2.37 and 6.86, in 2012), (table 25). The number of HIV infection cases per diagnosis date decreased from 61% from 2008 to 2012 (table 26).
Diseases of the circulatory system constitute the major cause of death in Portugal (30.4% in 2012) followed by malignant neoplasms (23.9%) and diseases of the respiratory system (12.9%), with particular focus on older people (65 years and more) (tables 27 and 28).
The significance of the different causes of death varies by sex in the 3 major causes of death in a consistent trend. While diseases of the circulatory system affect more women than men (56.27% of total deaths in 2012), malignant neoplasms affect more men than women (59.66% of total deaths in 2012) and a balance is reached regarding diseases of the respiratory system (table 29).
According to the Survey on Income and Living Conditions (SILC) conducted in 2013 on incomes from the previous year, 18.7% of the resident population was at risk of poverty after social transfers in 2012, which reflects an increase from 2011 (17.9%) and the highest value since 2005. The poverty threshold corresponds to 60% of the median of the distribution of net equivalent monetary income. In 2012, this threshold corresponded to €4 904 (around €409/month). Children and persons aged less than 65 were at a greater risk of poverty, respectively with 24.4% and 18.4% in 2012 that compares with 20.8% and 15.7% in 2005. On the contrary, the risk of poverty for people aged 65 years and over steadily improved over the series (table 30). The risk of poverty for the unemployed is also high and it is increasing: in 2013 it was 40.2%, against 38.4% in the previous year and 32% in 2004. The relative at-risk-of-poverty gap is increasing since 2010 (22.7%), with 27.3% in 2013.
Total annual average expenditure was €20,391 per household residing in Portugal, based on the 2010/2011 Household Budget Survey. Of the total expenditure, approximately 29.2% was on housing (including expenditure on water, electricity, gas and other fuels), 14.5% on transport and 13.3% on food and non-alcoholic beverages. The concentration of expenditure in these classes shows the same structure of expenditure of Portuguese households observed during the previous decade, although with a loss in the relative importance of the annual average expenditure on food and non-alcoholic beverages compared with the results of the 2000 and the 2005/2006 surveys. In the 2010/2011 survey, the expenditure on health represented 5.8% of total annual average expenditure (6.1% in the 2005/2006 survey) and expenditure on education (2.2%) slightly increased compared with the previous survey (1.7% in 2005/2006). See table 31.
The households in the bottom quintile of total equivalised income (20% of households with the lowest income) showed an average total expenditure corresponding to 56% of total average expenditure (€11,428). Households in the fifth quintile (20% of households with the highest income) recorded a total average expenditure above the national average, by around 73% (€35,314). The analysis of total annual average expenditure according to the household reference person’s characteristics shows that the lowest levels of the annual average expenditure in 2010/2011 were observed in households where the reference person was a woman, or was aged 65 and over, or had not completed any education level.
The social security framework law (Law 4/2007 amended by Law 83-A/2013 defines the materialisation of the right to social security (guaranteed by Article 63 of the Constitution), through an insurance scheme that guarantees benefits to replace lost earnings and a social protection scheme for citizens that encompasses social action, solidarity and family protection components, and that seeks to ensure basic rights and equal opportunities, as well as to contribute to social cohesion.
Before all social transfers from the social security system, the risk of poverty was of 46.9% in 2012 (compared with 45.4% and 42.5% in the two previous years and 41.5% in 2008). Pensions play an important role in reducing the risk of poverty, since the rate dropped circa 21 p.p. to 25.6% after social transfers relative to pensions, in 2012 (compared with circa 15 p.p. in 2005 and circa 17 p.p. in 2008). Regarding distribution of income, the GINI coefficient dropped from 35.8% in 2008, to 34.2% in 2013 (table 32).
3.Work and employment
In the context of the economic and financial crisis that has affected the Portuguese labour market, work participation has decreased, reaching 59.3% of the population aged 15 and above in 2013, affecting men and women of all age groups. The participation of women decreased from 55.8% in 2008, to 54.6.2% in 2011, and 54.1% in 2013. The participation rate of men declined from 68.9% to 65.1% over the same period. The participation of young people (aged 15–24) decreased significantly from 40.9% in 2008 to 38.2% in 2011 and 35.0% in 2013 and the participation of persons aged 65 and over has also decreased from 17.6% in 2008 to 14.6% in 2011 to 13.4% in 2013 (table 33).
In 2013 about 43% of resident population was employed (approximately 4.5 million persons), of which 21.3% were university graduates (18.8% in 2011), 22.8% had completed the upper and post-secondary level (19.7% in 2011) and 55.9% had low educational levels (61.5% in 2011). The majority of employed population (around 66.1%) worked in the tertiary sector (services and public administration), a percentage higher than in 2011 and 2008 (about 62.9% and 59.6%, respectively). Next comes the secondary sector (industry, including energy and construction), with about 24.2% (compared with 27.3% in 2011) and the primary sector (10,2% in 2013; 10.8% in 2011 and 11.4% in 2008 (table 34).
Women are the large majority of the employed population in service sectors, namely “domestic work for families” (98.2% in 2013, 98.6% in 2011 and 98.9 in 2008), “health and social support” (81.9%, in 2013, 81.1% in 2011 and 83.8% in 2008), “education” (77.9% in 2013, 77.3% in 2011 and 77.0% in 2008), “other services activities” (69.2% in 2013, 67.9% in 2011 and 67.9% in 2008) and “hotel, restaurants and similar activities” (58.5% in 2013, 61.2% in 2011 and 60.3% in 2008). Men are overrepresented in “construction” and “transportation and storage” (respectively, about 90% and 80%, on average, over the period). By occupation, women dominate on “elementary occupations” (72.0% in 2013, 74.2% in 2011 and 67.4% in 2008), “clerical support workers” (63.3% in 2013, 65.6% in 2011 and 61.7% in 2008) “service and sales workers” (63.1% in 2013, 63.6% in 2011 and 68.0% in 2008), and “professionals” (60.4% in 2013, 58.5 in 2011 and 56.7% in 2008). By contrast, women accounted only for 33.7% in 2013 of “managers” (33.4% in 2011 and 31.5% in 2008) See tables 35 and 36.
There are no estimations for employment in formal and informal sectors.
The unemployment rate is increasing since 2000. In 2008, it had reached 7.6%; 12.7% in 2011; and 16.2% in 2013. Unemployment rates were high among youngsters aged 15-24 years (16.7% IN 2008; 30.3% in 2011 and 38.1% in 2013). Female unemployment has always been higher than male (8.8% for women and 6.5% for men in 2008, aggravating the disparity registered in 2000, with 4.9% for women and 3.1% for men. It was of 13.0% for women and 12.3 for men, in 2011, and of 16.4% for women and 16.0% for men in 2013, reducing the gap registered in 2011. Long term unemployment accounted for 62.1% of all unemployment in 2013, 53.2% in 2011, and 49.9% in 2008 (table 37).
The right to constitute and join trade unions and to participate in their activities is fully recognized, in accordance with the Constitution (Art. 55). The legal framework does not grant competency to the Labour Administration to register and assess the number of workers affiliated to trade unions. Between 2004 and 2013 the number of registered trade unions grew 2.5%, compared with the period between 1993 and 2003. However, in 2013, the number of unions with active registration is lower (-10.6%) than in 2003. The management bodies, effective and alternate, elected in 2013 to the unions were composed, respectively, by 37.2% and 44.5% of women.
Pre-primary education is the first stage of the Portuguese education system aimed at children between 3 to 5 years old. In 2009, the universality of pre-primary education for all children over 5 years old was established, but attendance is not compulsory. The preschool network is provided by the state, private and cooperative bodies, private social solidarity institutions and other non-profit institutions (table 38).
Compulsory education begins at the age of 6 and lasts for 12 years. It encompasses basic education and secondary education. Basic education lasts for 9 years and is divided into three cycles: the first cycle corresponds to the first four years of schooling; the second cycle to the next two years (these two cycles together correspond to primary education); and the third cycle lasts for three years and corresponds to lower secondary education. Specific goals within each cycle are integrated into the overall objectives of basic education, according to the age and stage of development of the students. Secondary education lasts for three years and corresponds to upper secondary education. It can be organized in different paths with permeability between courses in both paths being guaranteed. Compulsory education is provided in public, private and cooperative schools. State-run schools are free of charge. See table 39.
There are several options for those wishing to pursue post-secondary education, including non-higher technological specialisation courses (CET), and higher education. Higher Education includes university and polytechnic education offered by public, private and cooperative institutions.
According to data available for 2011/2012, the actual rate of schooling - ratio between the number of students enrolled in a particular course of study in the normal age of frequency of that cycle, and the residents of the same age levels reached 100% of children in the first cycle of primary education, 92.3% in the second cycle and 89.9% in the third cycle (lower secondary) of basic education, decreasing to 72.3% in upper secondary education. While full coverage in the first cycle remained unchanged since 2005, there has been an increase in the rates concerning the second and third cycles of basic education and secondary education (upper secondary), despite a slight decrease from 2001/2011 (table 40).
The gross rate of schooling — percentage between the total number of students enrolled in a particular course of study (no age considered) and the resident population in the same age level attending the normal course of studies — is higher, although levels decreased from 2005 to 2012 in the first and second cycle of basic education. It should be noted that there is an increase in the rates concerning the third cycle of basic education (lower secondary) and secondary education (upper secondary) (table 41).
There has been a significant decrease in drop-out rates from school, at all levels of education from 2005 to 2012, despite a decrease in the rate concerning the second cycle of basic education from 2010/2011 (table 42. From 2002 there has been a strong improvement in the rate of early leavers from education and training, from 45.0% in 2002 to 19.2% in 2013. Early school leaving rates are higher in boys than in girls (52.6% for boys and 37.2% for girls, in 2002; 23.6% for boys and 14.5% for girls, in 2013) (table 43).
Teacher/student ratio in public and private schools slightly increased between 2005/2006 and 2011/2012. Concerning the pre-primary and first cycle of primary education, these ratios were, respectively of 14.4 and 12.8 in 205/2006 and 16.2 and 15.3 in 2011/2012. This evolution is associated with measures taken to reorganise the first cycle school network that was considered fundamental to reduce academic underachievement and school drop-out rates. The second cycle of basic education, and the lower and upper secondary education registered lower ratios, though there was an increase when comparing 2005/ 2006 to 2011/2012, respectively, 7.4 and 7.9 in 2005/2006 and 8.2 and 8.2 in 2011/2012 (table 44).
Enrolment in higher education is increasing since 2005, in comparison with the population with the same age, in all groups and namely from 18 to 20 years old. Tertiary education attainment rate is improving, with a clear increase since 2005 — from 17.7% to 29.2% in 2013 (table 45).
In the last fifty years, illiteracy rates in Portugal have been progressively and significantly decreasing, ranging from 33.12% (38.97% for women and 26.55% for men) in 1960 to 5.22 in 2011 (6.67 for women and 3.51 for men). During the entire period the incidence of illiteracy was higher in the female population in comparison to males. Nevertheless, the decrease in illiteracy rates was particularly strong among women: 32.20 percentage points for the female population in the period 1960-2011, compared to 23.04 percentage points among males and 27.90 for the total population (table 46). These rates were mostly due to the illiteracy rates of women aged 65 and over: 24. 52% of females in this age group remained illiterate and 12.59% of males. By 2011, under 0.50% of persons aged 10 to 18 were illiterate and the gender gap had been reversed: 0.45% for boys and 0.35% for girls (tables 47 and 48).
In 2013, the Portuguese Gross Domestic Product (GDP) reached 165 666.3 million euro, decreasing 1.4% in volume terms compared with the value observed in the previous year. The GDP annual change rate rose between 1996 and 1998 (when it reached 5.2%), and then decreased to a low of -0.9% in 2003. Between 2004 and 2008, GDP presented positive annual change rates, growing 1.1% on average. In the period 2010-2013, GDP decreased 5.8%. The Gross National Income has been increasing since 1995 reaching the highest value in 2008 (165 835.7 million euro — table 49). In the last 5 years the GNI shows some irregularity, reaching 162,214.6 million euro in 2013.
Concerning the Consumer Price Index (CPI), between 2002 and 2013 it has registered average change rates of approximately 2.2%, attaining 0,3% in 2013 (table 50). Gross disposable income per capita has increased from 8 775 euros in 1995 to 15 693.2 in 2010, the highest value of the vintage (table 50). Public debt is also increasing, moving from 64 514 million euro (50.7% of GDP) in 2000 to 213 361 million euro (129.9% of GDP) in 2013 (table 51).
Expenditure on social protection has increased since 2000. It represented 28.9% of total public expenditure in 2000 and 39.6% in 2012, corresponding to 12.0% of GDP in 2000 and 18.8% in 2012. Expenditure on health increased in relation to total public expenditure from 2000 (14.9%) to 2005 (15.4%), but then decreased to 12.8% in 2012; in relation to the GDP, the percentage in 2012 (6.1%) was similar to that of 2000 (6.2%), after reaching a maximum of 7.2% in 2005. Also concerning housing and community amenities there has been a reduction: in 2000, this represented 2.4% of total public expenditure and 1.0% of GDP, compared with 1.2% of total public expenditure and 0.6% of GDP in 2012. The evolution of expenditure on education has decreased from 15.3% of total public expenditure and 6.4% of GDP in 2000 to 11.9% and 5.7%, respectively, in 2012 (table 52).
Concerning international assistance, Portugal disbursed 620 MUSD in 2008, 708 MUSD in 2011, and 488 MUSD in 2013 (net amounts), corresponding to 0.27%, 0.31% and 0.23% of GNI, respectively.
Portugal is committed to channelling the majority of its aid to Africa, which represented 66%, 85% and 81% of bilateral ODA in 2008, 2011 and in 2013.
The geographic concentration on six priority countries (Angola, Cape Verde, Guinea-Bissau, Mozambique, São Tomé and Príncipe and Timor-Leste) has been consistently a major policy guideline and is clearly reaffirmed in the new development cooperation´s strategic policy document for 2014-2020 —Conceito Estratégico da Cooperação Portuguesa 2014-2020. These countries are among the top ten recipients and received 47%, 90% and 85% of net bilateral ODA in 2008, 2011 and 2013, respectively.
Between 2008 and 2012, on average, 43% of bilateral ODA was channelled to LDCs which illustrates Portugal´s commitment to allocate ODA to where it is most needed.
Portugal has made clear progresses in implementing the OECD/DAC’s recommendation to reduce the aid fragmentation. In terms of sectorial concentration, focus on the areas of education, training and capacity building, aiming at enhancing the administrative capacity and good governance of partner countries, has been a priority factor.
There is a focus on the sector group of “Social Infrastructure and Services”, which accounted on average for the past five years, 2008–2012, approximately 40% of bilateral ODA, achieving 48% in 2013. In 2008-2013, an average, of 6% of bilateral ODA was allocated to basic social services.”
IV.Constitutional, political and legal structure of the State
The structure of the Portuguese State is based on the Constitution presently in force adopted by the democratically elected Constitutional Assembly, with entry into force on 25 April 1976. This Constitution (CRP) has had seven revisions so far (in 1982, 1989, 1992, 1997, 2001, 2004 and 2005). It is composed by six parts: preamble; fundamental principles; Part I (Fundamental Rights and Duties); Part II (Economic Organisation); Part III (Organisation of the Political Power) and Part IV (Guarantee and Revision of the Constitution).
In accordance with the CRP (Art. 1), Portugal is “a sovereign Republic, based on the dignity of the human person and on the will of the people, and committed to building a free, fair and inclusive society”. Portugal is a democratic State based on the rule of law, the sovereignty of the people, plurality of both democratic expression and democratic political organization as well as respect for and the safeguarding of fundamental rights and freedoms (Art. 2 CRP). The Constitution also states that the aim of the Portuguese Republic is to achieve economic, social and cultural democracy and to further participatory democracy. Political power is exercised by the people, namely through universal, equal, direct, secret and periodic suffrage and referendums (Art. 10 CRP, which also guarantees a multi-party system).
Portuguese international relations are ruled by the principles of national independence, respect for human rights, the rights of peoples, equality among States, pacific settlement of international disputes, non interference in other States internal affairs, and cooperation. We stand for the abolition of, inter alia, imperialism, colonialism and any other forms of aggression, domination and exploitation in the relations between peoples, and recognize the right of peoples to self-determination, independence and development. Portugal maintains special ties of friendship and cooperation with Portuguese-speaking countries (Art. 7 (1) to (4) CRP).
The Portuguese Constitution contains an extensive catalogue of “rights, freedoms and guarantees” and “economic, social and cultural rights” (Titles II and III, Arts. 24 to 79 CRP), which consecrate constitutionally many civil, cultural, economic, political, and social rights provided for in international human rights treaties — see below. Constitutional and legal provisions concerning fundamental rights are to be interpreted and integrated in accordance with the Universal Declaration of Human Rights, as expressly stated by Art 16 (2) of the CRP. Furthermore, norms and principles of general or common international law are an integral part of Portuguese law. Norms contained in regularly ratified or approved international conventions are in force at the domestic level provided that they have been published in the Official Gazette (Diário da República) and while they are binding upon Portugal at the international level (Art. 8 (1) and (2) CRP).
In terms of economic and social organisation, the Constitution (CRP) guarantees the coexistence of a public sector, a private sector, and a cooperative and social sector in ownership of means of production, as well as free enterprise initiatives within a mixed economy and public ownership of national resources (Art. 80).
B.Political and legal framework of the State
There are four organs of supreme authority: the President of the Republic; Parliament; the Government; and Courts (Art. 110 CRP). The political system in place is semi-presidential. Separation of powers is guaranteed by Art. 111 of the CRP. According to Art. 112 CRP, there are three types of normative acts: Acts, Decree-Laws, and regional legislative decrees that deal with matters provided for under the political and administrative statute of each autonomous region. The Government can also adopt regulations. Normative acts are published in the Official Gazette .
1.President of the Republic
The President of the Republic (PR) represents the Portuguese Republic, guarantees national independence, State unity and the regular functioning of democratic institutions, and is, by inherence, the supreme commander of the armed forces (Art. 120 CRP). The PR is elected for 5-year terms by universal, direct and secret ballot, and may not run for a third consecutive mandate. No woman has ever been elected for this office. In case of temporary impediment, the PR is replaced by the President of Parliament (Art. 132 CRP), whose competence shall however be limited (Art. 139 CRP). The PR is advised by the Council of State (Arts. 141 ss. CRP).
The PR’s competence includes: presiding over the Council of State; setting the date of elections, in accordance with electoral legislation; convening Parliament on an extraordinary basis; dissolving Parliament, upon hearing the parties represented thereon and the Council of State; appointing and dismissing the Prime Minister (PM) and Government members (in this case upon PM’s proposal); and appointing and dismissing, upon Government proposal, the president of the Court of Audit, the Attorney General’s and the heads of the armed forces (Art. 133 CRP).
The PR has the right of promulgation and veto within the time periods stipulated by the Constitution. In case veto is exercised, Parliament may confirm its own decrees by absolute majority of Parliament members in office, and the PR is then obliged to promulgate (Art. 136 CRP). The PR also submits matters of relevant national interest to a referendum, declares states of siege or emergency, grants pardons and commutes sentences, upon hearing the Government, and requests the Constitutional Court to examine the constitutionality of norms contained in national legislation and international conventions (Art. 134 CRP). Concerning international relations, the PR appoints Ambassadors, upon Government proposal, and accredits foreign diplomatic representatives, ratifies duly approved international treaties, and is competent to declare war, upon Government proposal and with the authorisation of Parliament, after hearing the Council of State (Art. 135 CRP).
2.Parliament (Assembly of the Republic)
Parliament (Assembleia da Rep ú blica ) is the representative assembly of all Portuguese citizens (Art. 147 CRP) and the main legislative organ. It is presently composed by 230 members, elected in geographically defined constituencies in accordance with the law.
Parliamentarians are elected for four-year terms and exercise their mandate freely. They enjoy civil, criminal and disciplinary immunity for votes and opinions expressed in the exercise of their duties.
Parliament has competences of a political, legislative and supervisory nature, as well as competences in relation to other organs. It can legislate on all matters, except those relating to the organisation and functioning of Government. It approves Constitutional amendments, the political and administrative statutes of Autonomous Regions, the State Budget and international treaties, proposes to the PR the convening of referendums on matters of relevant national interest, authorises and confirms the declaration of state of siege and state of emergency, and authorises the PR to declare war and peace (Art. 161 CRP).
Parliament has exclusive legislative power on some matters, including elections and referendums, the Constitutional Court, organisation of national defence, legal regimes on state of siege and state of emergency, acquisition and loss of national citizenship, associations and political parties, basic legal framework of the education system, statute of mandate-holders elected by direct and universal ballot, legal framework for security forces, intelligence services and State secrecy, and the creation, extinction, and modification of local authorities (Art. 164 CRP).
Other matters are within the competence of Parliament, but the Government can be authorised to legislate thereon, pursuant to authorisation of and within the limits prescribed by Parliament. It is the case, for example, of issues relating to: the status and capacity of individuals; rights, freedoms and guarantees; definition of crimes, penalties and security measures; criminal procedure; general framework on disciplinary measures and misdemeanours; basic legal framework on social security and national health service; protection of nature and cultural heritage; taxes and fiscal matters; monetary system; organisation and competence of courts and status of magistrates and non judicial conflict settlement entities; status of municipal authorities; guarantees of citizens, basic legal framework; and civil responsibility of Public Administration (Art. 165 CRP).
As a rule, Acts of Parliament are approved by simple majority, but some (called Organic Acts) must be approved by absolute majority of Parliamentarians in office (for instance, in the case of Acts pertaining to Parliament and Presidential elections, referendum and national defence). Amendments to the Constitution take the form of Constitutional Acts and must be approved by a 2/3 majority of Parliamentarians in office. Other Parliament deliberations take the form of resolutions (Art. 166 CRP).
As part of its supervisory powers, Parliament supervises conformity with the Constitution and the law and examines the acts of Government and public administration. It also examines the implementation of declarations of state of siege or of emergency (Art. 162 CRP).
The Government is formed taking into account the results of legislative elections. Parliament examines the Government Programme and may reject it (by absolute majority of Parliamentarians in office). The Government may seek a motion of trust at any time, on issues of relevant national interest. Similarly, any parliamentarian group may submit a motion of censure to Government. The rejection of the former or the approval of the latter will lead to Government resignation (Arts. 192 to 194 CRP).
Parliament holds debates on general or specific policy matters (Government summoning) upon request of Parliamentarian groups. Members of Parliament pose questions to Government, either in writing (requests) or at sessions held every fortnight with the participation of the PM. The enforcement of a Decree-Law can be totally or partially suspended by Parliament until the approval of an Act which amends it (Art. 162 CRP).
Parliament also participates in the election of mandate-holders of external organs (either totally or partially), namely the Ombudsman (Provedor de Justiça), the President of the Economic and Social Council, ten judges of the Constitutional Court, seven members of the Supreme Council of the Judiciary, members of the Supreme Council of Public Prosecution, and members of the entity in charge of regulating the media. Furthermore, it approves the political and administrative statutes and election laws of the Autonomous Regions, pronouncing itself on the dismissal of their government organs, and grants Regional Legislative Assemblies authorisation to legislate on certain matters.
Parliament elects its own officials (President, four vice-presidents, four secretaries and four vice-secretaries) and adopts its rules of procedure. Parliament members elected by each party may constitute Parliamentarian Groups (generally one for each party represented in Parliament). Parliament establishes ad hoc and standing commissions (specialized on certain matters), which can also establish sub-commissions. There are currently 12 permanent commissions. Ad hoc commissions may undertake inquiries into any matter of public interest relating to the implementation of laws or Government acts.
Legislative proposals may be submitted by Parliamentarians and Parliamentary Groups, as well as by the Government and Regional Legislative Assemblies (bills) and by groups of citizens (minimum 35 000) registered to vote (Art. 167 CRP and Act 17/2003, of 4 June). Legislative initiatives are first examined by the specialised commissions, then discussed in Plenary and voted on in generality (preliminary vote on the general aspects of the initiative). Then, they are voted on in speciality (article by article), which can be done in Plenary or in Commissions. Voting in speciality on some matters (e.g. elections for mandate-holders of organs of supreme authority, referendums and political parties) must be done in Plenary. The final text is subject to a final global vote in Plenary. The text approved — called parliament decree — is sent to the PR for promulgation. After promulgation, it is designated as “Act” and sent to Government for referenda (PM’s signature) and then published in the Official Gazette.
The Government is the body that conducts the country’s general policy and is the supreme authority within Public Administration (Art. 182 CRP). It is composed by the Prime Minister (PM), Ministers (who meet in Council of Ministers) and Secretaries and Under-Secretaries of State (Art. 183 CRP).
The PM is appointed by the PR after consulting the parties represented in Parliament and in light of the results of legislative elections. Other members of Government are appointed by the PR upon PM’s proposal. The Government is responsible before the PR and Parliament, and can be dismissed by either of them: by the PR when it becomes necessary to do so in order to ensure the normal functioning of democratic institutions and after consulting the Council of State; by Parliament upon rejection of a motion of trust or approval of a motion of censure (Art. 195 CRP). Should the PM resign or be dismissed, the Government as a whole will be removed from office. The PR then has the option of inviting another party to form Government, in light of the composition of Parliament, or of dissolving Parliament and convening new legislative elections.
The Government has political, legislative and administrative competences. It is responsible for, namely: negotiating and finalising international agreements; approving international agreements outside the scope of competence of Parliament; submitting government bills and draft resolutions to Parliament; proposing to the PR the convening of referenda on important matters of national interest and the declaration of war and peace; and pronouncing itself on the declaration of a stage of siege or state of emergency (Art. 197 CRP).
The Government has the power to make Decree-Laws on matters not within the exclusive competence of Parliament; to make Decree-Laws on matters within the relative competence of Parliament, in accordance with Parliament authorisation; and to make Decree-Laws that develop the principles or the basic general elements of Acts of Parliament. Legislation on matters concerning the internal organisation and functioning of Government is of the exclusive competence of this organ. There have been 19 Constitutional Governments since 1976. Only once was a woman PM. Government presently in office (XIX) was inaugurated in June 2011 and is now composed by the PM and 14 Ministers.
The two Autonomous Regions of Azores and Madeira each have their own political and administrative statutes and self-government institutions (Arts. 6 (2) and 225ss CRP) — a Legislative Assembly and a Regional Government, but their autonomy does not affect the integrity of State sovereignty and is exercised within the framework of the CRP. The members of Legislative Assemblies are elected for four-year terms by universal, direct and secret suffrage in accordance with the principle of proportional representation. Each Regional Government is politically responsible before the Legislative Assembly of its Autonomous Region. The PR, upon hearing the Government, appoints a Representative of the Republic for each region. This Representative appoints the President of the Regional Government, in light of the results of regional elections, as well as the remaining members of the regional cabinet (upon proposal of its President).
Autonomous Regions are competent to, inter alia, legislate on matters of specific regional interest which are not within the exclusive competence of supreme authority organs. The approval of regional budgets and of economic and social development plans and accounts, as well as the adaptation of the national fiscal system to regional specificities, fall within the exclusive competence of Regional Legislative Assemblies. These also adopt their own draft political and administrative statutes and electoral laws, which are sent to Parliament for discussion and approval.
Organs of Supreme Authority have the duty to cooperate with regional organs. Regional legislation and regulations must be signed by the Representative of the Republic, who has the power of veto. Regional Legislative Assemblies may, however, confirm their vote by absolute majority of members in office, in which case the Representative of the Republic is bound to sign. Legislative Assemblies may be dismissed by the PR, which entails the removal of Regional Government.
The democratic organisation of the State includes local authorities (public bodies with a territorial basis, which pursue the interests of local populations) (Arts 235ss CRP). There are currently two types of local authorities: municipalities (308) in turn divided into parishes (3092). Municipalities have associated themselves at various levels, in order to pursue common interests (eg. by establishing Inter-municipal communities and the Metropolitan Areas of Lisbon and Oporto). The responsibilities and organisation of local authorities and the competence of their bodies are regulated by law in accordance with the principle of administrative decentralisation (Art. 237 CRP).
Each local authority has its own elected assembly with decision-making powers (municipal assembly or parish assembly), and a collegiate executive body that is responsible before such assembly (municipal cabinet and parish cabinet). Local authorities are vested with powers and competences associated with meeting the needs of local communities, in areas such as social and economic development, territorial organisation, supply of public goods, basic sanitation, health, education, culture, environment, and sports. Local authorities have their own staff, assets and finances, with management ensured by their own organs. Administrative supervision over local authorities is limited to verifying their compliance with the law, and such authorities can only be dismissed due to serious illegal acts or omissions (Art. 242 CRP).
In accordance with the Constitution, all citizens above 18 years of age are eligible to vote and be elected, except in the case of incapacities provided for in general law (Art. 49 (1) CRP). Incompatibilities prescribed by law apply to the passive electoral capacity of active diplomats, military personnel, and magistrates. In elections for the PR, only citizens of Portuguese origin aged 35 or above can run.
On 31 December 2013, 9 471 211 national citizens residents in Portugal were registered to vote, plus 160 718 citizens resident throughout the world (respectively 9 462 645 and 207 005 in 2008). Furthermore, 12 446 citizens of EU member States (10 089 in 2008) and 14 995 citizens of other States resident in Portugal (17 015 in 2008) were also registered to vote.
These numbers reflect an increase in the numbers foreigner nationals of EU member States: +23%. An opposite trend was observed in the number of other non-nationals which declined 12% over the period.
Registration to vote is mandatory for all resident citizens above 17 years of age and is made automatically by electoral administration services. It is optional for non-resident Portuguese citizens and for foreign nationals resident in Portugal with electoral capacity. There is a single registration system for all elections.
The right to vote is exercised in person, by means of universal, equal, direct, secret and periodic ballot, and constitutes a civic duty (Arts. 10 and 49 (2) CRP). There are five types of election: for PR, for Parliament, for Regional Legislative Assemblies, for Local Authorities, and for the European Parliament. There is also the possibility of convening national and local referendums. The polling system varies in accordance with the election: in Presidential elections, there is a majority two-round system; in elections for Parliament, autonomous regions and local power bodies, there is a proportional system and votes are converted into mandates in accordance with the method of HONDT. Voter turnout has had a tendency to be above the national average in major urban centres in all elections except those for local authorities, and is higher in northern littoral than in the South, and in general lower in the Autonomous Regions.
In 2006, the Parliament adopted a Law (Organic law 3/2006, of 21 August, amended by declaration 71/2006, of 4 October 2006) which sets at 33% the minimum representation for both sexes in the electoral lists for the National Parliament, the European Parliament and for Local Authorities, having effects on the percentage of elected members, corresponding to a quantitative threshold to parity. Any list of three or more candidates must ensure a minimum participation of 33% of each sex (this rule does not apply in elections to municipal organs with less than 7 500 voters nor to parish organs with less than 750). Additionally, for the Portuguese and European Parliaments, the lists should not include more than two persons of the same sex successively. If the lists do not respect these rules, the public financing of the electoral campaigns may be reduced.
Courts are responsible for examining complaints on the conduct of elections and for verifying the legality and validity of electoral procedure acts. Thus, candidacies are presented before the Constitutional Court (Presidential and European) or before common courts (legislative, local and regional), for verification of legality. There is a period of electoral campaign (of approximately 11 days), during which political parties have the right to use specific means of campaign, such as broadcast time in TV and radio services and to post propaganda, as well to use recreational and other public facilities.
Electoral campaigns are governed by the principles of freedom of propaganda (of means and content), of equal opportunities and treatment for all candidatures, of impartiality of public bodies towards all candidatures, and of transparency and scrutiny of electoral accounts (Art. 113 (2) CRP). The media are bound not to discriminate any candidature.The publication of opinion polls as from the eve of elections, until the closing of voting polls, is prohibited.
A National Elections Commission (Comissão Nacional de Eleições — CNE) has been established to ensure equal opportunities of action and propaganda to all candidacies, to ensure equality of treatment to all citizens in electoral registration and electoral conduct, and to provide information on electoral issues. It applies fines to political parties, mass media and publicity and other companies for misdemeanours resulting from violation of electoral regulations. CNE’s decisions can be appealed before the Constitutional Court, which is the competent body to examine cases relating to jurisdictional and administrative acts on electoral matters, including irregularities on the conduct of elections.
For the purpose of Presidential elections, there is a single national constituency. All Portuguese citizens of origin above 35 years of age may run for election. To be elected, it is necessary that the candidate obtains more than half of validly expressed votes. If no candidate obtains such majority in the first electoral round, a second round will be convened, with the participation of the two most voted candidates (Art. 126 CRP). In accordance with the Constitution presently in force, Presidential elections were held in 1976, 1980, 1986, 1991, 1996, 2001, 2006 and 2011. Six candidates participated at the last Presidential elections, held in 2011 and the current PR was elected with 52.95% of votes.The voter turnout in presidential elections has had a tendency to decrease (from 75.4% in 1976 and 84.2% in 1980 to 50.9% in 2001 and 46.5% in 2011) although 61.53% registered voters participated in 2006.
For the purpose of legislative elections (for Parliament), there are 20 constituencies in Portugal (coinciding with 18 Districts in the continent, plus two Autonomous Regions), electing members of Parliament in proportion to the number of registered voters. Portuguese citizens resident abroad elect 2 members in the constituency of Europe and 2 members in the constituency outside Europe. Candidacies are presented by political parties only, isolated or in coalition, but the lists may include independents (not registered in a political party) (Art. 151 CRP). Each voter has one vote and the lists are collective, closed, and blocked. Representation is proportional and votes are converted into mandates through the method of HONDT. The establishment of a minimum number of votes for a party to be represented in Parliament is constitutionally prohibited. Parliamentarians represent the country as a whole, rather than the constituency which elects them (Art. 152 CRP).
Since 1976, there have been 12 legislative elections in Portugal: in 1976, 1979, 1980, 1983, 1985, 1987, 1991, 1995, 1999, 2002, 2005, 2009, and 2011. In the latest (2011), 17 parties participated and six forces obtained seats in Parliament and are therefore represented therein: the Social Democrat Party (PSD: 38,65% and 108 seats); the Socialist Party (PS: 28,06% and 74 seats), the Social and Democratic Centre (CDS-PP: 11,7% and 24 seats); the Coalition Portuguese Communist Party/Ecologist Party (PCP-PEV: 7,91% and 16 seats); and the Left Wing Block (BE: 5,17% and 8 seats). The results of other participating parties varied between 0.06% and 11,2%. In the 2011 elections 61 women were elected as members of Parliament (26,5%), which represents an improvement from previous years except for 2009: 63 in 2009 (27,4%) , 49 in 2005, 45 in 2002, 40 in 1999, 28 in 1995, and 20 in 1991.
The system adopted in the election of Regional Assemblies is similar to that in place for Parliament. In Azores, there are nine constituencies (one for each island), plus one regional compensation constituency (designed to correct identified distortions in the allocation of seats in light of votes obtained). It should be noted that, in Madeira, only Portuguese citizens with habitual residence in the region can be elected for its Regional Assembly. Since 1976, nine elections have been held for each Regional Legislative Assembly: in 1976, 1980, 1984, 1988, 1992, 1996, 2000, 2004, 2007/2008 and 2011/2012 (Madeira: 2011; Azores: 2012). In Madeira, the same party (PPD/PSD) has had the highest number of votes since 1976 (48.56% in 2011). In Azores, PPD/PSD was the most voted party until 1992, after which the Socialist Party won the majority of seats (49.02% in 2012).The percentage of female representation has been relatively low.
Local elections comprise elections for parish assemblies, municipal assemblies, and municipal cabinets. Elections are held by universal, direct and secret suffrage of the citizens registered to vote in the area of the local authority in question, in accordance with the proportional representation system (same system as for Parliament, with the necessary adaptations). There is a separate vote on the municipal cabinet, and the first candidate in the most voted list shall be appointed mayor (head of the executive cabinet). The first candidate in the most voted list for parish assembly shall, in most cases, be appointed head of the parish cabinet. Local authority mandate-holders are elected for four-year terms, and as a rule, the elections are held simultaneously.
A specific aspect of elections for local authorities is that groups of registered electors may also nominate candidates (alongside political parties, either individually or in coalition). Another is the fact that some foreigners resident in Portugal may also participate in local elections: nationals of EU member States, Brazil and Cape Verde may vote and be elected. Nationals of Norway, Iceland, Uruguay, Venezuela, Chile and Argentina may vote (the concession of this right to foreign nationals is subordinate to reciprocity).
Since 1976, eleven rounds of local elections were held: in 1976, 1979, 1982, 1985, 1989, 1993, 1997, 2001, 2005, 2009, and 2013, and the distribution of seats in local organs has greatly varied.
For the purpose of elections for the European Parliament, there is a single constituency which currently elects 21 Members. Nationals of EU Member States resident in Portugal are eligible to vote, and any national of a EU Member State may run for election, regardless of his or her place of residence. Since 1987, seven such elections were held, in 1987, 1989, 1994, 1999, 2004, 2009, and 2014). PSD was the most voted party in 1987 and 1989, while PS won the majority of seats in 1994, 1999 and 2004, 2009, and 2014 (for 2014 the participation of women will only be known at the opening of the Parliamentary session).
As seen from above, the Portuguese democratic system has been regularly functioning since 1976. All national and sub-national elections were held within the schedule laid out by law. Occasionally, the dismissal of Government or collegiate bodies, in accordance with constitutional procedures, prevented such bodies from fulfilling their full mandates and led to the anticipation of electoral acts.
Citizens may also be called upon to pronounce themselves in national or regional referenda (Art. 115 CRP). These are convened by the PR, upon proposal of Parliament or of the Government. Groups of citizens may submit a request to this effect to Parliament. Only “matters of relevant national interest that must be decided by the Parliament or by Government through the approval of an international convention or legislative act” may be submitted to referendum. Constitutional amendments, budgetary or tax issues, and matters within the political or legislative exclusive competence of Parliament, may not be submitted to referendum. Three national referenda have been held since 1976: two in 1998 and one in 2007.
Political parties are expressly recognized by the Constitution, which states that they “shall contribute to the organisation and expression of the will of the people, with respect for the principles of national independence, the unity of the state and political democracy” (Art. 10 (2) CRP). They are fundamental actors in the constitutional and political scene and enjoy a number of prerogatives (including the right to broadcasting time on the public radio and television service, and the exclusive right to submit lists of candidates in elections for Parliament). However, as no one can be deprived of the exercise of any right because he or she is or ceases to be registered as a member of any legally constituted party (Art. 51 CRP), Parliament Members do not lose their seats in case they cease to be registered in a party and lists of candidates may include independent persons.
No one can be simultaneously registered as a member of more than one political party and these parties must not employ names that contain expressions which are directly related to any religion or church, or emblems that can be confused with national or religious symbols. The creation of parties with a name or manifesto that possesses a regional nature or scope is prohibited. The constitution and functioning of political parties are ruled by Organic Act 2/2003, of 22 August. Political parties represented in Parliament and in regional or local assemblies, which are not part of the respective executive bodies, have further prerogatives emerging from the rights of opposition. These prerogatives are governed by Act 24/98, of 26 May. Political parties are registered at the Constitutional Court. There are currently 16 parties registered, the last three in 2011, 2013, and 2014.
The Constitution establishes that Public Administration shall seek to pursue public interest and shall respect all such citizens’ rights and interests as are protected by law (Art. 266 CRP). There are three main types of administrative bodies: those within the direct administration of the State (central or regional); those within the indirect administration of the State (which possess their own legal personality, distinct from that of the “State”, as well as administrative and financial autonomy, but whose activity pursues State purposes); and those within autonomous administration (these pursue the interests of those who formed them and define in an autonomous and independent manner their own guidance and activities - it is the case of regional and local administrations and public associations).
Art. 268 of the Constitution recognizes a number of rights to citizens in their relations with Public Administration, for example: the right to be informed about progress of the procedures which directly concern them and of such decisions as are taken in relation to them; the right of access to administrative files and records, subject to the law governing matters of internal and external security, criminal investigation, and personal privacy; the right to be notified of administrative acts which concern them, and that those acts which affect their rights or legally protected interests be expressly motivated; the right to judicial protection of their rights and legally protected interests; the right of appeal against acts and norms which affect such acts or interests; the right to the issuing of positive rulings requiring the practise of administrative acts that are due by law, and of adequate interim measures; and the right to a maximum time limit for replies from the Administration, as provided for by law.
The procedure of administrative bodies is governed by the Code of Administrative Procedure. Public officials and agents are civilly and criminally liable and subject to disciplinary proceedings for their actions and omissions in the performance of their duties (Art. 271 CRP). The State itself is liable for damages resulting from the exercise of legislative, judicial, and administrative powers.
The PR is the supreme commander of the armed forces and chairs the Supreme National Defence Council, specific consultative body on matters concerning national defence and the organisation, operation and discipline of the armed forces. This Council includes members elected by Parliament (Art. 274 CRP).
Armed Forces are charged with ensuring the military defence of the country under the authority of the PR, the Parliament, the Government, the Supreme National Defence Council and the Supreme Military Council. They are composed exclusively of Portuguese citizens and have a single organisational structure for the entire Portuguese territory. The Armed Forces are responsible for fulfilling Portugal’s military commitments and for taking part in humanitarian and peace missions undertaken by international organisations of which Portugal is a member. They may also be charged with cooperating in civil protection missions, tasks related to meeting the basic needs and improving the quality of life of the population and actions of technical-military cooperation.
The structure of Portuguese armed forces comprises three branches of the military — navy, army, and air force. Recruitment into the armed forces is voluntary in times of peace after the official abolition of mandatory military service in 2004.
Women started entering the Armed Forces in the nineties. Two laws contributed to this change: the Law of Military Service from 1991, which, among others, allowed the entry of women in training schools for Officers and Sergeants in order to integrate the Armed Forces; and the Ordinance regulating the military service by women. From that moment on, specific regulations have established the classes, arms, services, and specializations open to women in each branch of the armed forces.
The Minister of National Defence, aiming at eliminating discrimination against women, determined that in the proofs for admission in the Armed Forces the gender equality principle must be respected in what concerns access to classes, arms, services, and specializations (by Ministerial decision 101/2008, of 6 June). For the evolution of the number of women in the military see tables 52-54.
10.Constitutional guarantee and revision
The validity of laws and other acts of the State, the autonomous regions, local authorities and any other public entities depends on their conformity with Constitution (Art. 3 (3) CRP). Such conformity can be verified on a preventive basis or a posteriori. The Constitutional Court can be requested to rule on such conformity prior to the promulgation, ratification or approval of any Act, Decree-Law, regional legislative decree, treaty or international agreement. If the norm is deemed unconstitutional, the decree that contains it shall be vetoed and returned to the organ which approved it; it may not be promulgated or signed unless such norm is eliminated or the decree confirmed by a two-thirds majority of Members of Parliament present, provided that higher than the absolute majority of Members in office (Arts. 278 and 279 CRP).
A posteriori, any ordinary court can refuse to apply a norm in case it deems it unconstitutional. Court decisions on the constitutionality of a norm can be appealed before the Constitutional Court (Art. 280 CRP). Any norm deemed unconstitutional upon examination of three concrete cases shall be declared unconstitutional with generally binding force, and thus repealed (Arts. 281 and 282 CRP). Such declaration of unconstitutionality with general binding force can also be made at the request of, inter alia, the PR or the Ombudsman (Provedor de Justiça), who can furthermore request that the Constitutional Court pronounces itself on unconstitutionality by omission, by declaring failure to adopt the necessary legislative measures to give effect to Constitutional norms (Art. 283 CRP).
The Constitution can be amended by Parliament every five years (or at any moment upon request of four fifths of Members in office, except during a state of siege or state of emergency). Constitutional amendments are approved by a two-thirds majority of Members of Parliament in office, as a Constitutional Act, whose promulgation cannot be refused by the PR. Some Constitutional provisions cannot, however, be amended. For example: national independence and State unity; separation of the State and Church; respect for the rights, freedoms and guarantees of citizens and for the rights of workers and labour unions; universal, direct, secret and periodic ballot as a form of designation of mandate-holders in organs of supreme authority, regional organs and local authorities, as well as the proportional representation system; pluralism of expression and political organisation, including political parties and the right to democratic opposition; separation and interdependence of organs of supreme authority: independence of the courts; autonomy of local authorities; and political and administrative autonomy of Azores and Madeira (Arts. 284 to 289 CRP).
C.Administration of justice
Public expenditure on public order and safety decreasedbetween 2008 and 2012, both in relation to total public expenditure and in relation to Gross Domestic Product (GPD)and has been decreasing ever since. In accordance with provisional data for 2012, it represented 3.82% of total public expenditure and 1.8% of GDP, against 4.2% and 1.9%, respectively, in 2008 (table 56).
The Courts are supreme authority bodies that administer justice in the name of the people (Art. 202 (1) CRP). They are independent and subject to law only (Art. 203 CRP) and their rulings are binding on all persons and bodies, public and private, prevailing over the decisions of all other authorities (Art. 205 (2) CRP). All court rulings that are not merely administrative in nature must be duly motivated (Art. 205 (1)). Court hearings are public, “except in the event that in order to safeguard personal dignity or public morals, or to ensure its own proper operation, the court in question rules otherwise in a written order setting out the grounds for its decision” (Art. 206 CRP). In accordance with the Constitution (Art. 209), Courts work as follows:
The Constitutional Court is specifically responsible for administering justice in matters of a legal and constitutional nature (Art. 221 CRP). It is made up of 13 judges, 10 of whom elected by Parliament and 3 co-opted by those elected. They enjoy the same safeguards as all judges, i.e. independence, immovability, impartiality, and immunity.
Besides ruling on conformity with the Constitution and the law, the Constitutional Court has competence in electoral matters and passes judgement in last instance on the regularity and validity of acts of the electoral procedure. It verifies the death of the PR, declares the permanent or temporary incapacity to perform presidential functions of the PR or any presidential candidate, and verifies forfeiture of the office of PR. It further verifies the legality of the formation of political parties and coalitions, assessing the legality of their names, initials and symbols, and ordering their abolition, all as laid down by the CRP and the law, and verifies in advance the constitutionality and legality of national, regional and local referenda. At the request of Parliamentarians and as laid down by law, it rules on appeals concerning losses of seats and elections held by Parliament and the Regional Legislative Assemblies (Art. 223).
(b)Courts of law
The structure of courts of law is composed by courts of law of first and second instance, and headed by the Supreme Court of Justice. Courts of law have jurisdiction over all matters not assigned to other courts and are, as a general rule, competent to try matters on civil and criminal proceedings (Art. 211 CRP).
The judicial courts are common courts that deal with civil and criminal matters. They solve disputes between natural and/or legal persons and decide on criminal law offences. They guarantee the defense of the rights and legally protected interests, and suppress any violation of democratic rights.
In accordance with the Law on the Judicial System Organization (Law 62/2013, of 26 August), the national territory is divided in 23 counties; their territorial jurisdiction corresponds to the administrative district areas, except for the Lisbon and Porto districts that are divided respectively in three and two counties.
At the top of the hierarchy of the judicial courts is the Supreme Court of Justice, whose main task is to decide on appeals lodged against decisions of judicial courts hierarchically inferior. It has its seat in Lisbon and has nationwide jurisdiction.
The courts of second instance are, as a rule, the high courts (Tribunais da Relação ). They deal with appeals lodged against decisions of the first instance courts. There are five high courts; the jurisdiction of each court is restricted to the group of counties as defined by law and each is run by a president.The first instance courts are usually the county courts. They may function as a singular court (1 judge), as a collective court (3 judges) or as a jury court. In every county court there is a president, a coordinator prosecutor from the Public Prosecution (who runs the services of the Public Prosecution) and a judicial administrator. The county courts have generic and specialized competence. They are divided in central instances that may comprise sections with specialized competence (civil, criminal, criminal inquiry, family and minors, labour, commerce and enforcement) and local instances that encompass sections with generic competence and sections of proximity. There are also courts with an extended territorial competence, with jurisdiction over more than one county or over matters specifically laid down in law.
The courts with an extended territorial competence are:
a)The intellectual property court that has its seat in Lisbon and has nationwide jurisdiction. It is competent to decide, among others, on matters related to copyright, industrial property, domain names, trade names, and Corporate Names;
b)The competition, regulation and supervision court, with nationwide jurisdiction, has its seat in Santarém. It is competent to deal with appeals, reviews and enforcement of decisions, orders and other measures related to administrative offences legally susceptible to be challenged by independent administrative entities with regulation and supervision tasks;
c)The maritime court with jurisdiction over the North, Central and South Maritime Department, has its seat in Lisboa. It is competent to decide, among others, on actions related to maritime and commercial law;
d)The enforcement of sanctions courts that have their seat in Coimbra, Évora, Lisbon and Porto. Once the decision becomes final and the sanction or deprivation of liberty measure has been determined, it is up to the court of enforcement of sanctions to follow up and supervise the enforcement and to decide on whether to modify, replace or terminate it;
e)The criminal inquiry court that has its seat in Lisbon and has nationwide jurisdiction deals with the criminal inquiry within criminal proceedings and decides on the judgment and all other jurisdictional acts related to the inquiry.
(c)Administrative and Tax Courts
The administrative and tax courts deal with disputes related to administrative and tax matters that arise between natural persons and public legal persons or between public legal persons.
The Administrative Supreme Court is the highest body of the hierarchy of the administrative and tax courts. Its main function is to decide on appeals related to administrative and tax matters. It is composed by two sections, one for administrative litigation and the other related to tributary disputes. The Administrative Supreme Court has its seat in Lisbon and is competent throughout national territory.
The second instance administrative and tax courts are the administrative central courts. Their main function is to decide on appeals lodged against decisions on disputes handed down by circuit administrative courts and by tax courts. These central courts also deal with requests related to declarations of illegality of national tributary norms.
There are two administrative central courts, the North Administrative Central Court in Porto and the South Administrative Central Court in Lisbon. Each one has two sections, one being in charge of decisions on administrative issues and the other on tributary matters.
The circuit administrative courts, being first instance courts, decide on disputes related to administrative matters. In turn, the tributary courts, while courts of first instance, decide on conflicts related to tax issues.
The circuit administrative courts and the tributary courts may function together; when such happens they are designated administrative and tax courts.
(d)Court of Audit
The Court of Audit is the senior body with authority to scrutinise the legality of public expenditure and judge such accounts as the law may require to be submitted to it. Its President is appointed for four-year mandates by the PR. However, the President can be dismissed upon Government proposal and PR approval (Art. 214 CRP).
The Constitution also mentions maritime courts, arbitration tribunals and Julgados de Paz, as well as courts martial (Arts. 209 (2) and 213), although these were abolished in 2003 and may only be established in times of war. Julgados de Paz (literally “Justices of peace”) were re-instated in 2001 (Act 78/2001, of 13 July) and their competence is merely declaratory and restricted to legal actions within the exclusive competence of first instance courts of justice (which also enforce the decisions ofJulgados de Paz). As for the subject matter, they mainly examine civil cases relating to contract and property law, as well as claims for compensation submitted by victims of certain types of crime (non aggravated body injury, defamation, slender and non aggravated theft). The procedure comprises a mandatory mediation phase. Courts with the exclusive power to try certain categories of crime are prohibited (Art. 209 (4) CRP).
(a)Judges and Public Prosecutors
Judges and Public Prosecutors are recruited into first instance courts, on the basis of merit by public competition open to all Portuguese citizens (or citizens of Portuguese-speaking countries subject to reciprocity) with a recognized law degree who need to fulfil the general requirements for the exercise of civil service. Promotion into second instance courts and the Supreme Court of Justice is also made through competition (Art. 215 CRP).
( i ) Judicial judges and from the administrative and tax courts
Judges enjoy security of tenure and cannot be transferred, suspended, retired or removed from office except in the cases laid down by law. Except when laid down by law, they are also not held personally liable for their rulings. The exercise of the judiciary is incompatible with the performance of any other public or private function, except unremunerated teaching or legal research functions (Art. 216 CRP).
Judges from the judicial courts form a single body and are governed by the Judicial Judges Statute. Judges from the administrative and tax jurisdiction, just like the judicial judges, form a single body and are governed by the provisions set forth in the Constitution of the Republic, by the Statute of the Administrative and Tax Courts and, in all other matters not covered in the latter, by the Judicial Judges Statute. According to the position that the respective courts hold within the structure of the judicial and administrative and tax courts, there are three categories of judges: in the first instance courts, we have the Law Judges; in the second instance courts, we have the Appellate Court Judges (Juízes Desembargadores ) and in the High Courts, we have the Counselor Judges. The appointment, placement, transfer and promotion of, as well as the exercise of disciplinary action over the judges of the judicial, administrative, and tax courts, are entrusted to the High Council of Judicature and to the High Council of the Administrative and Tax Courts, respectively.
(ii) Public prosecution
Public Prosecution represents the State (as well as Autonomous Regions and local authorities) and defends interests as the law may lay down (namely those of disabled persons, workers and their families, persons with no permanent residence and persons whose whereabouts are unknown). It participates in the implementation of criminal policy as defined by supreme authority bodies, exercises penal action in accordance with the principle of legality, directs criminal investigations even if carried out by other bodies, promotes and implements crime prevention initiatives, and supervises the procedural activity of criminal police bodies. It prosecutes and sustains prosecution during criminal inquiries and trials, lodges appeals (even if in the interest of defence) and promotes the execution of sentences and security measures. It also defends the democratic rule of law as well as collective and diffuse interests, as provided for by law (Art. 219 CRP).
Public Prosecution has its own statute (Act 60/98, of 28 August) and enjoys autonomy. Public Prosecutors are magistrates who are accountable, subject to a hierarchy, and cannot be transferred, suspended, retired or removed from office except in cases provided for by law. The appointment, assignment, transfer, and promotion of Public Prosecutors and the exercise of discipline over them are the responsibility of the Attorney General’s Office (Art. 219 CRP).
kThe Attorney General’s Office is the highest body of Public Prosecution, and is chaired by the Attorney General, comprising the Supreme Council of Public Prosecution (which includes five members elected by Parliament, two appointed by the Minister of Justice and 11 elected by their peers. The Attorney General is appointed for six-year mandates (and can be dismissed) by the PR, upon Government proposal (Art. 220 CRP). There are Public Prosecutors at the courts of all levels.
The lawyer is a liberal professional who, inter alia, exercises the forensic mandate, i.e. defends the interests through the practice of legal acts inherent to his/her profession and provides legal counselling which rest on the interpretation and application of law and/or norms at the request of a third party. In Portugal, a lawyer has to enrol in the Bar in order to practice legal acts. The Bar is a public association of law graduates that exercise the law professionally. It is up to the Bar to guarantee, in particular, the access to the law, to regulate the exercise of the profession, to ensure the social function, dignity, and prestige of the lawyer’s profession, to promote access to the knowledge and application of the law and exercise, in full, the disciplinary power over lawyers and trainee lawyers. The access to this legal profession entails, beside a law degree, a traineeship, and a final evaluation examination. Lawyers exercise their duties with full technical autonomy and in an independent manner. They are bound to professional privilege and enjoy a number of prerogatives, namely the right to communicate with detained clients, to obtain information and consult judicial files, not to have their professional correspondence seized and to special safeguards regarding searches and interception of communications (which must be decreed and presided by the competent judge).
The CRP recognizes legal representation as an essential element in the administration of justice and establishes that lawyers must enjoy the immunities needed to exercise their mandates (Art. 208 CRP). Furthermore, in relation to criminal proceedings, it is recognized the defendant’s right to choose counsel and to be assisted by him in every procedural act (Art. 32 (3) CRP).
The assistance of a lawyer is mandatory in most civil cases (including all those in which appeal is admissible) and in all criminal cases (in these cases, if the defendant himself does not appoint a lawyer, one must be appointed on his behalf).
Solicitors are liberal professionals that provide legal counseling and exercise forensic mandate within the limits defined by law; they may represent the parties whenever a lawyer does not have to be compulsory appointed. Solicitors may also legally represent their clients outside the courts, for instance, before tax administration, at the notary offices, at the civil registries, and at the local administration bodies. The Chamber of Solicitors — a public association that represents solicitors — is entrusted, in particular, with disciplinary power over its members and may give opinions on draft legislation related to its attributions.
Enforcement agents are the professionals to whom the law grants public authority to take action under the enforcement process. They do not represent either party but they are responsible for making all necessary diligences of the enforcement procedure, including citations, notifications, attachments, sales, and other business transmitting property regarding enforcement sale and publications. They generically ensure the handling of the case, performing all acts necessary to obtain the payment of a debt, the delivery of an asset or the provision of a certain fact. They perform all the diligences of the enforcement procedure near the debtor, the official bodies or third parties.
The Chamber of Solicitors and the Commission for the Efficiency of Enforcement Procedures are responsible for regulating the profession of enforcement agent.
(e)Julgados de Paz (Justices of Peace)
It is incumbent upon the Julgados de Paz to take, according to law or to equity, decisions concerning matters that are submitted to them, through civil cases related to contract and property law, as well as claims for compensation submitted by victims of certain types of crime (non aggravated body injury, defamation, slender, and non aggravated theft). The procedure comprises a mandatory mediation phase. The Julgados de Paz are appointed for five years by the Council of the Julgados de Paz that exercises disciplinary authority over them. They are ruled by the system of impediments and suspicions established in the law of civil procedure for judges.
(f)Other professions within the scope of Justice:
( i ) Conflict Mediators
Conflict mediators (impartial and independent third party, devoid of the power of imposition over the mediated, who assists the parties, in a voluntary and confidential manner, in an attempt to build a final agreement on the purpose of the dispute);
(ii) Court Receivers
Court receivers (responsible for the supervision and guidance of the acts that compose the special revitalization process as well as the management or liquidation of insolvent under the insolvency proceedings);
Registrars (public officials working on issues related to the definition and the publicity of facts and actions relating to the status or legal capacity of natural persons (civil registration) or that develop their activity in the area of publicity rights over immovable and movable assets subject to registration (land and vehicle registries) and the status of traders, companies, and other entities subject to commercial registration);
Notaries are jurists whose written documents, prepared in the exercise of their function, are considered authentic. A notary is both a public official that grants authenticity to documents as well as a liberal professional who works independently, impartially and by choice of the parties;
(v) Official Agents of Industrial Property
Official Agents of Industrial Property (technicians specialized in industrial property, to which companies and individuals may resort to better defend their rights and interests);
(vi) Criminal investigators within the Judiciary Police
Specialized Judiciary Police staff recruited through a public process from among individuals who have completed a training course in the Judiciary Police School;
(vii) Prison Guards
The process for recruitment and selection of prison guards is always initiated by an announcement in the Official Gazette. In addition to the general requirements, there are some specific entrance conditions. Approved candidates are required to attend a training course for guards.
In 2012, there were 14.86 prosecutors in Portugal per 100,000 inhabitants, compared with a rate of 12.79, in 2008. The rate of judges per 100,000 persons increased from 18.17 in 2008 to 19.28 in 2012. These figures do not include former military tribunals (table 57). There has been a substantial increase in the representation of women in most legal professions, with women outnumbering men as judicial magistrates, public prosecutors, lawyers, and justice officials (table58).
There are several law enforcement agencies in Portugal, namely a security force of military nature (GNR — National Republican Guards), another of civil nature (PSP — Public Security Police) and a judiciary police (PJ) with competence to investigate the most complex and serious crimes. The two first are under the aegis of the Ministry for Home Affairs, as is a specialized service on immigration and borders (SEF). PJ is under the aegis of the Ministry of Justice. There are also municipal polices forces throughout the countryunder the authority of mayors (but subject to the supervision of the Ministry for Home Affairs). In 2007, an Integrated Internal Security System (SISI) was created, with the view to optimize the operational capacities of the various systems, organs and services relevant to ensure public order, security, and tranquillity.
The ratio of police/security personnel per 100,000 persons has decreased from 479,9 in 2008 to 471,7 in 2012.The total number of law enforcement officers slightly decreased over this period (table 59).
In 2012, there were 49 detention centres in Portugal, accommodating 13 614 inmates (with a capacity for 12 077) and with 5 688 staff on duty (table 60).
The vast majority of inmates were men: women represented only 6%, which is an increase in one percentage point compared with 2010. (Chart 76) In 2012 there were 2 661 pretrial detainees that meant an increase in relation to 2008 (2 108). The majority of sentenced prisoners were serving prison sentences of 3 to 9 years, which remains constant since 2008. Over the same period, there was a decrease in the number of prisoners serving prison sentences of up to 6 months, and an increase in prisoners serving sentences of more than 9 years. In 2012, the majority of sentenced prisoners had been convicted for crimes against property (3 133), followed by crimes against people (2 690), related to drugs (2 252), and crimes against life in society (806). Deaths in custody have decreased, from 68 in 2008 to 66 in 2012 (tables 61-65).
Portugal is a civil law country, influenced by the Roman and German tradition. Besides the Constitution, the Portuguese legal system is primarily based on the Civil Code, applied by courts in accordance with the Code of Civil Procedure.
The Civil Code contains a general part regulating the sources of law, their interpretation and application, private international law, the status of persons, both individual (legal personality, capacity and incapacities, rights of personality, residence, and representation) and corporate (incorporation, capacity, liability, extinction, associations, foundations, and other), and legal facts (legal business, the impact of time in legal relations, exercise and protection of rights and proof, including documents). Another major part is devoted to obligations, including their sources (namely contracts and civil liability), modalities, transmission, guarantees, fulfilment, extinction, and compensation. As it concerns contracts, sale and purchase are specially regulated, as well as, inter alia, donations, societies, locations, lending, mandates, and deposits. A third part is devoted to assets, regulating issues such as possession, property, fruition, use, and real estate servitudes. The fourth part deals with family law, containing the main provisions on themes such as marriage, divorce, family relations, parenthood, parental responsibilities, adoption, tutorship, and alimony. Finally, the fifth part is devoted to succession and inheritance law, containing provisions on issues such as division and administration of assets, legal and mandatory inheritance, and wills.
The new Code of Civil Procedure (CCP), approved by Act 41/2013, of 26 June, is based on the principles of equality between parties, contradictory (possibility to make submissions on any questions of fact or law arisen within the proceedings), and cooperation. In principle, the facts should be alleged by the interested party, but this does not preclude the judge from taking into account other essential facts which result from the discussion of the case. The court does not initiate civil proceedings ex officio. The settlement of the dispute must be requested by one of the parties, and there are rules on the representation of children, absent and incapacitated persons and corporations, among others.
The CCP contains provisions, inter alia, on party legitimacy, competence of courts, legal representation, impediments and deadlines. All decisions must be duly motivated. As a rule, civil procedure is public, except if such public nature might cause damage to the dignity of persons, intimacy of private or family life or public morals, or if it may jeopardize the efficacy of the decisions to be taken.
Two main types of legal actions are foreseen: declaratory and enforcement actions. Actions for declaration may be purely for assessment — when their purpose is merely to obtain a declaration as to whether a right or fact exists or not; ruling — to demand the provision of on object or act, presupposing or preventing the violation of a right or fact; or establishment — to allow a change in the existing legal system. The amendments introduced in the new Code of Civil Procedure relating to the handling of the actions for declaration are intended to ensure procedural concentration and, once the stage of pleadings is fulfilled, to develop the preliminary hearing — understood as an essential means to operate the principle of cooperation, adversarial and of oral statements — and the final hearing, consecrating, namely the principle of non-postponement and its mandatory recording, at least in a sound system.
As a rule, court decisions can be appealed to a higher court, except if the value of the case is below the minimum required to lodge such appeal. Judgements on the status of persons and family law can always be the object of an appeal. Courts of Appeal (Tribunais da Relacão) are in general terms the competent courts to examine appeals, but some appeals can go up to the Supreme Court of Justice (as a rule, this Court pronounces itself on matters of law only). In most cases, appeals do not suspend the efficacy of a judgment; this rule does not apply in relation to cases concerning the status of persons.
Enforcement actions are those in which the creditor requires the appropriate coercive measures to the achievement of an obligation due to him. They are based on a title, which can be a judicial sentence, private document with executive force, certain debt claims and other documents to which, by special provision, is given executive force.
There are special procedures such as those on protection of personal status, interdiction and inhabilitation of persons, alimony, divorce and separation, dispositions in relation to children and spouses, protection of personality, name and private correspondence.
Labour law is a branch of civil law, based on the assumption that, rather than parties being equal, the employee is frequently in a weaker position than the employer, and must therefore be protected. Act 7/2009, of 12 February, approved a new Labour Code.
6.Criminal law and crime figures
The main principles of the Portuguese criminal justice system are established by the CRP, which guarantees the principles of legality and non-retroactivity in the implementation of criminal law, except if the new provisions are more favourable to the defendant as well as the principle of presumption of innocence. The death penalty is expressly prohibited under Art.º 24(2) of the CPR. It was first abolished for political crimes in 1852 and in 1867 for all crimes, except those of a military nature. The 1911 Constitution abolished it for all crimes, but it was re-introduced in 1916 for crimes committed in a theatre of war. It was definitely abolished with the entry into force of the 1976 Constitution. The last confirmed execution took place in 1846.
No one can be tried more than once for the same crime and there is the right to the review of sentences and compensation for damages suffered (Art. 29 CRP). Sentences or security measures of a perpetual nature, unlimited or undefined duration are prohibited and criminal liability is non-transferable. No sentence automatically results in the loss of any civil, professional or political right (Art. 30 CRP).
The Criminal Code (CrC) also recognizes the principles of nulla poena sine culpa and proportionality, and therefore in no case can the sentence go beyond the measure of guilt. It is applied in full to persons aged 21 and above. Special criminal legislation applies to those aged 16 to 21. In its general part, the CrC deals with matters such as the territorial and temporal competence of Portuguese courts, the liability of individuals and legal persons, intent and neglect, unimputability, forms of crime and exclusion of illicit and guilt. Penalties and security measures aim at protecting legal interests and reintegrating perpetrators into society.
A wide range of penalties is typified: imprisonment (including home arrest, imprisonment in free days, semi-detention), fine (which in some cases can be converted into labour) community work and reprimand. Accessory penalties are also contemplated, such as the prohibition of, or suspension from, the exercise of a function, and the prohibition to drive. The CrC foresees a range of penalties for legal persons (articles 90-A, and following). The court decides on the concrete penalty to be applied, within the limits prescribed by law and taking into account such factors as the offender’s personal circumstances and guilt. It can also determine the suspension of execution of a sentence of imprisonment of less than five years that can be subject to certain conditions which the convicted person must respect (including those described in a personal rehabilitation plan). Furthermore, special mitigation or exemption of sentence can be decided. Corporations can be sentenced to fines or dissolution, as well as to a number of accessory penalties.
The CrC also regulates parole, the confiscation of instruments, products and advantages for the State and such security measures as the institutionalisation of unaccountable persons and the prohibition of certain activities or the withdrawal of a driver’s licence. A specific chapter establishes rules regarding the hospitalization of people with mental disorder.
As a rule, the duration of prison sentences ranges from one month to 20 years. In a limited number of cases (aggravated murder, drug trafficking with criminal association)it can go up to 25 years. It should be noted that Portugal recognizes the notion of “legal accumulation”, by which no one can serve for more than such maximum limit of 25 years in prison, regardless of the number of crimes by which he or she was convicted. Relatively undetermined sentences can be applied, but in no case can they extend for more than 25 years. Some crimes (such as terrorism and drug trafficking) are the object of special legislation, which does not affect the basic principles established under the CC.
The Code of Criminal Procedure (CCrP) is based, inter alia, on the principle of the legality of procedure, which means that the application of criminal penalties and security measures can take place only in conformity with the law.
A person charged or whose indictment has been requested within a criminal proceeding is given the status of defendant (arguido). Since 2007, the granting of such status, if made by a police body, must be confirmed by a judicial authorityin order to be used as evidence. The status of “arguido” entails a number of rights, such as the right to remain silent, to be informed of charges brought against him or her, to request the appointment of a lawyer and to offer evidence. The defendant can appoint a lawyer at any stage and the assistance of a lawyer is mandatory in a number of acts (such as interrogations of detained or imprisoned defendants) and in all cases after prosecution. If the defendant himself does not appoint a lawyer of his or her choice, an ex officio lawyer is appointed on his or her behalf, but the defendant may be responsible for the payment of the lawyer’s fees in case legal aid has not been requested and approved.
Victims can associate themselves to the procedure (by becoming “assistants”), in order to receive information, intervene in the proceedings and seek remedy. For this purpose, a civil claim can be attached to the criminal procedure.
In case victims of violent crimes — such as those crimes resulting in serious body injuries or death — are unable to obtain compensation from the offender (for example, because the latter is unknown or it can reasonably be predicted that he or she does not have the means to provide compensation), they can seek compensation from the State, by applying to the National Commission for the Protection of Victims of Violent Crimes. In 2013, this Commission awarded compensation in 57.56% of cases, which was an increase in comparison with the results obtained in 2012 (41.52%), and 2011(43.50%) but a significant decrease in relation to 2009 (67.00%) and 2008 (77,89%) (table 66).
Although the proceedings are, as a rule, public, they can be subjected to judicial privilege, during inquiry, at the request of the defendant, the assistant or the victim, or by determination of Public Prosecution. The public can be present at public procedural acts, except if the judge decides otherwise, ex officio or at the request of the parties. As a rule, procedural acts in cases of trafficking in persons and sexual crimes are held in camera in order to protect the victims. The reading of judgments is always public.
The proceedings are initiated with the report of a crime. If the suspect is detained, he or she must be brought before a judge within 48 hours. The report of a crime entails the initiation of a criminal inquiry, directed by Public Prosecution, with the assistance of criminal police organs.
The CPP indicates a number of coercive measures, which can be applied to the defendant, such as the term of identity and residence; bail; periodic presentation before a police or judicial authority; suspension of the exercise of a certain profession, function, activity or right; prohibition or imposition of conduct; home arrest; and pre-trial detention. All such measures, except the first, must be decreed by a judge and can only be applied if the following requirements are met: that the defendant is evading or there is a risk of evasion; the risk of disturbing inquiry or instruction, namely by compromising evidence; and the risk of continuation of criminal activity or serious disruption of public order and tranquillity.
Furthermore, pre-trial detention can only be ordered if other provisional measures are deemed insufficient and exhaustive legal requisites are fulfilled.The special complexity of the case must be decreed by a judge at first instance, ex officio or at the request of Public Prosecution.
Other acts of inquiry (such as the first judicial interrogation of a detainee in a 48 hours delay, searches in a lawyers’ or doctor’s offices or in a bank agency, or the reading of seized correspondence) must be performed by a judge (judge of inquiry), and others must be ordered by such a judge (for example technical expertise, home searches and seizure of correspondence).
The inquiry closes with prosecution or withdrawal of proceedings, within a maximum of 12 months from the date when it was directed against a particular person or a defendant is constituted. If either the defendant or the assistant do not agree with the decision taken at the end of the inquiry, they can request opening of instruction (an optional phase, under the direction of a judge), at the end of which the judge decides — within a maximum of four months (three if the defendant is detained) whether to indict or not to indict the defendant.
Trial comprises a hearing, as a rule public, at which the defendant should be present, except in circumstances provided for by law. No evidence obtained through illegal methods (such as torture or ill-treatment) is admissible. Witnesses testify under oath, but the defendant takes no such oath and has the right to remain silent. Close relatives cannot be obliged to testify against one another. Crimes punishable with less than five years of imprisonment or just with a fine penalty can, under certain conditions, be tried in accordance with abbreviated proceedings.
The sentence (or, at least, a summary thereof) is read out in public and must be duly motivated. Sentences can be appealed to a higher court (with suspensive effects).
Incidence of violent death and life threatening crimes reported per 100,000 persons has been decreasing from 2008 (8.58) to 2012 (8.11), except in 2010 where a peek can be noted (table 86).
In 2012, 6 704 persons were brought to court for violent or other serious crimes such as homicide, robbery, assault and trafficking (63.9 per 100,000 persons), 4 527 sentenced (43.2 per 100,000 persons) and 1629 incarcerated (15.5 per 100,000 persons). Since 2008, there has been a trend to decrease the numbers and rates of persons brought to court and an increase in the numbers and rates of persons sentenced and incarcerated (table 67). The number of reported cases of sexually motivated violence decrease from 2 251 in 2008 to 2 238 in 2013. The highest figure reported in this period was 2 556 in 2009 and the lowest was 2 134 in 2012 (table 68).
Security forces registered the following cases of domestic violence in 2013: Republican National Guard (GNR) — 11 528; Public Security Police (PSP) — 14 738. Given that the total number of registered domestic violence cases was of 27 318, there was a decrease of 2.4% in relation to 2012 (26 084) and a decrease of 10% (-2 896 cases) in relation to 2011.
According to the Portuguese legal system, the legal nature of Non-Governmental Organisations (NGO) is traditionally that of an association or, at times, of a foundation. In both cases there is some public intervention, notwithstanding the fact that the CPR guarantees, in its Art. 46, freedom of association and the right of all citizens freely to associate with one another without any authorisation, on condition that such associations are not intended to promote violence and that their purposes are not contrary to criminal law. The CPR further provides that associations shall pursue their purposes freely and without interference from public authorities and shall not be dissolved by the State or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.
The Civil Code sets forth the legal framework for associations. Arts. 167 et seq. prescribe several steps for their incorporation with the initial requirement that a meeting of its founders takes place and that the future articles of the association are approved, stating its name, purpose and headquarters. The association’s name has to be certified as admissible by the National Register of Collective Persons. A public deed is then celebrated at a Notary, who reports the association’s incorporation to the Civil Government and the Public Prosecutor’s Office. Notice of such incorporation is published in the Official Gazette and the process is completed with its definitive registration at the National Register of Collective Persons and Declaration of Commencement of Activities at the Office of the General Directorate of Taxation. Registration is governed by the principle of legality and can only be refused if the association’s purpose is, for example, contrary to the law or public order.
A simplified incorporation procedure has been put in place, called “On the Spot Association”, by which an association can be incorporated in a single act at a Register, without admissibility certificates and with the adoption of pre-approved articles of association.
As far as the recognition of organisations is concerned, Portugal is Party to the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, done at Strasbourg in 1986. The National Register of Collective Persons is the designated authority for the purpose thereof.
Also, under Portuguese law, legal persons such as associations, foundations or cooperatives may be granted by Government the status of “legal person of public utility”. This status is granted by the PM and instructed by the General Secretariat of the Presidency of Council of Ministers, pursuant to Decree-Law 391/2007, of 13 December, and Decree-Law 460/77, of 11 November, and confers, amongst other, tax benefits and tariff exemptions.
Certain associations, such as Non-governmental Development Cooperation Organisations (NGOD), Non-governmental Environment Organisations (NGEO), Migrant, Women and Youth Associations, and Associations of Persons with Disabilities, can apply to be recognized by certain public departments, in order to be given the status of social partners, and receive State support, tax exemptions and other benefits. This recognition implies a second registration with the concerned public departments (which often automatically gives the association the status of “public utility legal person”).
For example, NGOD based in Portugal should apply for registration with the Portuguese Institute for Development Support (IPAD, within the Ministry of Foreign Affairs), in case they promote non-profit objectives and aim at developing, implementing and supporting programmes and projects of a social, cultural, environmental, civic and economic nature, inter alia those aimed at promoting and protecting human rights in developing countries. Should an NGO be recognized as a NGOD, it shall automatically be given the status of public utility legal person and may apply for public funding for its projects and programmes. The status of NGODs is governed by Act 66/98, of 14 October. The status of NGOD must be re-registered at 2-year intervals.
There are presently 134 organisations registered as NGOD by IPAD, 55 of which are members of the Portuguese Platform of NGOD.121 organisations have been granted the status of NGEO, there are 1 273 Youth Organisations. Of the 134 immigrant associations recognized by the High Commissioner for Migrants, 98 are presently active.40 NGOs are members of the section of Non-governmental Organisations of the Consultative Council of the Commission for Citizenship and Gender Equality, 29 of which are women’s rights associations and NGO’s working in the field of gender equality and 11 are working in the area of human rights.
Freedom of the press is guaranteed by the Constitution, implying, inter alia, the freedom of expression and creativity of journalists and other staff, as well as the freedom of journalists to take part in determining the editorial policy of the media body in question, save when it is doctrinal or denominational in nature; the right of journalists to have access to sources of information and to the protection of professional independence and secrecy, as well as their right to elect editorial boards, in accordance with the law; and the right to create newspapers and any other publications, regardless of any prior administrative authorisation, bond or qualification (Art. 38 (1) CRP).
Ownership and financing of the media are publicized, and the State shall ensure the media’s freedom and independence from political power and economic power by imposing the principle of specialisation on businesses that own general information media, treating and supporting them in a non-discriminatory manner and preventing their concentration, particularly by means of multiple or interlocking interests (Art. 38 (2) and (3) CRP). According to the Media Regulatory Authority (ERC — Regulating Entity for the Media), there are 14 media groups in Portugal as of January 2013. Further to this group of 14 media companies, it may also be included the communications convergence player Vodafone Portugal — Comunicações Pessoais, S.A., a provider of pay television services.
The State ensures the existence and operation of a public radio and television service. According to Law, the structure and operation of public media sector shall safeguard their independence from Government, Public Administration and other public authorities. Public media sector is legally obliged to ensure that all the different currents of opinion are able to express themselves and to confront one another. Radio and television broadcasting stations (spectrum users) operate only with licenses that are granted under public calls for tender, as laid down by law (Art. 38 CRP).
In what concerns the television broadcasting market in 2013, the average daily TV viewing time per person was 3h54 minutes, against 3h29 minutes in 2009. FTA channels controlled the market (Public Broadcaster RTP 19%, TVI 26% and SIC with 21.5% of share) but Pay TV registered a trend of growth (33,4% of share in 2013, against 18,2% in 2009). According to the Electronic Communications Regulatory Authority (ANACOM), at the end of the 4th quarter of 2013 there were 3.17 million subscription TV service (TVS) subscribers, 49.4 thousand (1.6 percent) more than in the 4th quarter of 2012. At the end of the 4th quarter of 2013, the cable TV distribution service accounted for 44.2% of total subscribers, xDSL for 21.6% and DTH for 19.3%. Optical Fibre (FTTH/FTTB) represented 14.9% of total subscribers. It is estimated that 77.9% of subscription TV subscribers received their service as part of a package.
Regarding the press market in 2012, the considered universe of 1399 periodicals reached 25398 annual editions, with 395.2 million circulation copies of which 276.5 million copies were sold. Compared to 2011, printed materials recorded a fall in total traffic (‑32.9%), total circulation (-28.1%), number of copies sold (-12.3%), number of publications (-7.5%) and editions (-7%). Of the total number of periodicals considered, the majority (65.7%) were in “paper” format, while 34.3% were widespread in “Paper and electronic both” support. By type of publication, newspapers represented 69% of sold copies.
Concerning radio market, the average listening time was 3h13 minutes in 2013, against 3h18 minutes in 2009. At the end of 2011, there were 320 licensed radio stations — 3 national, 3 regional and 314 local stations. Public Broadcaster ( Grupo RDP) had a 10.6% of share, the market being dominated by commercial broadcasters ( Grupo Renascença with 33.9% and Grupo Media Capital Rádios with 32.5% of share).
In accordance with the CRP (Art. 39), an independent administrative body (ERC — Regulating Entity for the Media) has been established in order to regulate and supervise the media, to ensure, inter alia: the right to information and the freedom of the press; non-concentration of ownership of the media, independence from political power and economic power; respect for personal rights, freedoms and guarantees; and free expression and confrontation of all different currents of opinion. ERC’s Regulation Council (responsible for the definition and implementation of regulatory action) has 5 members, 4 of which elected by Parliament and the fifth chosen by those elected.
V.General framework for the protection and promotion of human rights
A.Acceptance of international human rights norms
1.Main international human rights conventions and protocols
International Covenant on Economic, Social and Cultural Rights — Entry into force in the domestic legal order on 31 October 1978.
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights — Entry into force in the domestic legal order on 5 May 2013.
International Covenant on Civil and Political Rights — Entry into force in the domestic legal order on 15 September 1978.
Optional Protocol to the International Covenant on Civil and Political Rights, concerning individual petition — Entry into force in the domestic legal order on 3 August 1983.
Second Optional Protocol to the International Covenant on Civil and Political Rights , aiming at the abolition of the death penalty — Entry into force in the domestic legal order on 11 July 1991.
International Convention on the Elimination of All Forms of Racial Discrimination — Entry into force in the domestic legal order on 23 September 1982 and Declaration recognising the Committee’s competence under article 14 on 2 March 2000.
Convention on the Elimination of All Forms of Discrimination against Women — Entry into force in the domestic legal order on 3 September 1981.
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, concerning individual complaints and inquiry procedures — Entry into force in the domestic legal order on 26 July 2002.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — Entry into force in the domestic legal order on 11 March 1989. Declaration recognising the Committee’s competence under articles 21 and 22 of the Convention on 9 February 1989.
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concerning regular visits by national and international institutions to places of detention — Entry into force in the domestic legal order on 14 February 2013. By Resolution of the Council of Ministers dated 9 May 2013, the Ombudsman (Provedor de Justiça) was designated the National Mechanism for the Prevention of Torture, in accordance with the relevant provisions of the Optional Protocol.
Convention on the Rights of the Child — Entry into force in the domestic legal order on 21 October 1990.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict — Entry into force in the domestic legal order on 19 September 2003.
At the moment of signature, on 6 September 2000, Portugal made the following declaration: “Concerning article 2 of the Protocol, the Portuguese Republic considering that it would have preferred the Protocol to exclude all types or recruitment of persons under the age of 18 years — whether this recruitment is voluntary or not, declares that it will apply its domestic legislation which prohibits the voluntary recruitment of persons under the age of 18 years and will deposit a binding declaration, in conformity with paragraph 2 of article 3 of the Protocol, setting forth 18 years as the minimum age for voluntary recruitment in Portugal”.
Declaration made upon ratification: “The Government of Portugal declares, in accordance with article 3, paragraph 2, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict that the minimum age for any recruitment — including voluntary — of persons into its national armed forces is 18 years. This age limit is already contained in the Portuguese domestic legislation”.
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography — Entry into force in the domestic legal order on 16 June 2003.
Optional Protocol to the Convention on the Rights of the Child on a communications procedure — Entry into force in the domestic legal order on 14 April 2014.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families — None of the EU Member States has ratified this Convention, since it is the European Union that has competence regarding most of the issues covered by the Convention and therefore any decision regarding its ratification can only be taken in coordination within and with the European Union.
However, this does not mean that the rights of migrant workers are not protected in Portugal. In fact, they are already covered by other international Covenants and by the European Convention of Human Rights that Portugal is party to and that apply to all migrant workers without exception.
At the national level, Portugal consistently seeks to guarantee the realization all the human rights of migrants in its public policies. These efforts have earned international recognition, including by the Office of the High Commissioner for Human Rights and Portugal continuously strives to do more and better.
International Convention for the Protection of All Persons from Enforced Disappearance — Entry into force in the domestic legal order on 26 February 2014.
Convention on the Rights of Persons with Disabilities — Entry into force in the domestic legal order on 23 October 2009.
Optional Protocol to the Convention on the Rights of Persons with Disabilities — Entry into force in the domestic legal order on 23 October 2009.
2.Other United Nations human rights and related conventions
See Annex 2.
3.Conventions of the International Labour Organization
See Annex 2.
4.Conventions of the United Nations Educational, Scientific and Cultural Organization
See Annex 2.
5.Conventions of the Hague Conference on Private International Law
See Annex 2.
6.Geneva Conventions and other treaties on international humanitarian law
See Annex 2.
7.Ratification of regional human rights conventions
See Annex 2.
B.Legal framework for the protection of human rights at the national level
1.Reference to human rights in the Constitution, a bill of rights, a basic law or other legislation
The Constitution of the Portuguese Republic (hereinafter referred to as “the Constitution” or “CPR”), which has already been submitted to seven revisions of its original text, establishes a sovereign democratic State based on the rule of law, the primary purpose of which is to build a freer, more just and fraternal society.
The Portuguese State is equally based on the sovereignty of the people, the dignity of the human person and the inherent principle of equality before the law, which determines that everyone is entitled to equal rights and freedoms, without distinction of any kind, “such as ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation, social condition or sexual orientation”.
Pursuant to article 8 CPR, “[...] the rules and principles of [...] international law shall be an integral part of Portuguese law.” (paragraph 1). The same article further specifies that the “ rules provided for in international conventions duly ratified or approved shall [...] apply in municipal law as long as they remain internationally binding with respect to the Portuguese State.”
This article consecrates a system of integration of International Law within Portuguese domestic law. As such, the principles set forth in the Universal Declaration of Human Rights are to be constructed as being fully in force within the Portuguese territory, and directly applicable and binding on public and private bodies in accordance with the provisions of article 18 that “the constitutional provisions relating to rights, freedoms and safeguards shall be directly applicable and binding on public and private bodies.” Article 12, paragraph 1 of the CPR, entitles all Portuguese citizens to all the rights inscribed in Portuguese Fundamental Law, by stating that “All citizens shall enjoy the rights [...] laid down in the Constitution”.
These rights encompass a wide range of civil, cultural, economic, political and social rights and freedoms. The Portuguese Constitution follows, in this regard, the systematization of rights adopted by the Universal Declaration of Human Rights with a section on civil and political rights and another one on economic, social and cultural rights. This categorization is however, and inevitably, not very tight, and there are some categories of rights that would fit well in any of them. Articles 24 to 57 relate to “Personal rights, freedoms and guarantees” (which are equivalent to the civil and political rights), whereas articles 58–79 relate to “Economic, social and cultural rights and duties” (equivalent to the economic, social and cultural rights).
This means that the majority of the human rights consecrated in international human rights instruments to which Portugal is a State Party, have a correspondence with the CPR and other legislation in force in Portugal (see in Annex 3 a Table with the correspondence between constitutional provisions and international human rights treaties).
The principle of equality (contained in article 13) determines that every citizen shall possess the “same social dignity and shall be equal before the law” and that “[n]o one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation”.
Article 15 of the Constitution provides that: “1. Aliens and stateless persons staying or residing in Portugal shall enjoy the same rights and be subject to the same duties as Portuguese citizens. 2. The foregoing paragraph shall not apply to political rights, to the performance of public duties that are not predominantly technical or to rights and duties restricted to Portuguese citizens under the Constitution and by law”.
Article 16, paragraph 1 of the Constitution determines that the fundamental rights embodied in the Constitution shall not exclude any other rights “either in the statute or resulting from applicable rules of international law. Paragraph 2 further stipulates that “[t]he provisions of the Constitution and laws relating to fundamental Human Rights shall be read and interpreted in harmony with the Universal Declaration of Human Rights”.
Moreover, human rights are protected in Portugal not only by the above-mentioned constitutional standards, but also by ordinary legislation. As referred to in greater detail below, the Constitutional Court is in charge of assessing the compatibility of the legislation adopted by the Government and/ or the Parliament with the Constitution.
2.Incorporation of human rights treaties into the national legal system
Any legislation that contravenes the Universal Declaration on Human Rights is prohibited. The validity of the laws and other acts of the state, the autonomous regions, local government and any other public bodies depends on them being in accordance with the Constitution (Art. 3, paragraph 3 CPR) and anyone guilty of a violation of these fundamental principles is answerable in accordance with the legal regime for the protection of fundamental rights.
Most Portuguese legal literature holds that article 8 of the Constitution has established a system whereby international law is fully incorporated into domestic law. Article 8 of the CPR reads: “1. The rules and principles of general or ordinary international law shall be an integral part of Portuguese law. 2. Rules provided for in duly ratified or approved international conventions shall, following their official publication, apply in domestic law as long as they remain internationally binding with respect to the Portuguese State; 3. Rules laid down by the competent organs of international organizations to which Portugal belongs, shall apply directly in domestic law, in so far as this is expressly provided for in the relevant constitutive treaties”.
Most legal literature considers that the status of treaty law, which is that of ordinary international law, is below the Constitution but above ordinary legislation. Accordingly, once ratified by Portugal and published in the Official Gazette, international treaties and agreements, and thus the rights established by them, apply directly and are directly binding on all public or private bodies (Art. 18 CPR).
This means that, in the event that a violation of one of these principles is established involving, for instance, discrimination — which is prohibited by several provisions of the Portuguese legislation, in particular article 13 of the Constitution — the victim would be entitled to resort to a court to vindicate her or his rights; she/he may not be denied justice for lack of means (article 20 CPR). If someone’s economic situation prevents her/him from paying the legal costs, the Legal Aid Institute will secure locus standi without it being necessary to pay expenses or lawyers’ fees in advance. This also means that international law norms — notably in the area of human rights — can be and are invoked before national courts.
3.Judicial, administrative or other authorities with competence in the area of human rights
The bodies that exercise sovereign powers in Portugal are all responsible for the promotion and protection of human rights, in their own field of competence:
(a)The President of the Republic is responsible for asking the Constitutional Court to review the constitutionality of rules laid down by laws and executive laws and in international agreements, and to rule whether legal provisions or statutes are unconstitutional due to any inclusion or omission (article 134 of the Constitution);
(b)Unless it authorises the Government to do so, the Assembly of the Republic is exclusively responsible for legislating on rights, freedoms and guarantees (article 165 of the Constitution). It has several specialized commissions; the Commission for Constitutional Matters, Rights, Freedoms and Guarantees (also known as the First Commission) is specifically competent in matters of human rights;
(c)The Government is responsible for the implementation of its policy on the various areas of governance (article 182 of the Constitution). The development, conduct, implementation and evaluation of specific policies, is of the responsibility of the respective line ministries, through its many departments and agencies;
(d)The National Committee for Human Rights (CNDH) established by Resolution n. 27/2010, of the Council of Ministers dated 8 April 2010, composed by representatives of the different Ministries. Its main objectives are to contribute to the definition of a national human rights policy and to coordinate the different Ministries in the drafting of reports due by Portugal to international organisations as well as in the follow-up to the observations of those organisations;
(e)The Portuguese Courts are responsible for the administration of justice, and for the defence of citizens’ rights and interests that are protected by law, repressing breaches of the democratic rule of law, and ruling on conflicts between public and private interests (article 202 of the Constitution). The Constitutional Court is specifically responsible for controlling the constitutionality of rules and other acts of the authorities.
There are, however, other bodies with more specific competences in these matters, of which we highlight the following:
(a)The Ombudsman (Provedor de Justiça) who is competent to receive complaints submitted by citizens against actions or omissions by public authorities. After an assessment, the Ombudsman sends the competent bodies such recommendations as may be necessary in order to prevent or remedy any injustices (Art. 23 of the Constitution);
(b)The Commission for the Protection of Crime Victims is an agency of the Ministry of Justice responsible for conducting preparatory inquires and taking evidence regarding requests for compensation by the State submitted by victims of violent crimes, and for requests for loans submitted by victims of domestic violence (in accordance with Decree-Law 423/91, of 30 October).
4.Provisions of the various human rights instruments that have been invoked before national courts, other tribunal or administrative authorities
As mentioned above international treaties duly ratified by Portugal and in force in the national legal system, form an integral part of the domestic legislation and can thus be invoked before national tribunals or courts.
It is possible to analyze the invocation of the international law by Portuguese jurisprudence, through the use of databases of the Ministry of Justice (www.dgsi.pt). As an example we may quote the invocation by the Supreme Court concerning the Extradition Convention, within the community of Portuguese Speaking Countries or the European Convention on Extradition and the European Convention on Human Rightsby the Supreme Administrative Court., The Constitutional Court has, on certain occasions, quoted and invoked international legal standards in force in Portugal in its decisions. For example in 2005 it invoked 3 times the Convention on the Rights of the Child, and in the years of 2006, 2007 and 2008 it also invoked this instrument once each year.
5.Remedies available to individuals who claim that any of his or her rights have been violated
The Portuguese legal order encompasses both judicial and non-judicial mechanisms for the defence of individuals’ rights.
The judicial mechanisms are the following:
(a)Right of access to the courts
As far as judicial protection is concerned, the Portuguese Constitution (article 20 CPR) enshrines the principle of effective judicial protection, guaranteeing everyone access to the courts in order to defend his or her rights and providing that justice cannot be denied to anyone due to lack of financial means (article 20, par. 1 CPR). Moreover, according to article 20, par. 5 of the Constitution, the law shall ensure expedite and priority legal proceedings with the aim of assuring effective and timely judicial protection against threats to or violations of personal fundamental rights, freedoms, and guarantees.
The right of access to the courts is foreseen in the framework of the individuals’ constitutional rights vis-à-vis the public administration (article 268, par. 4 of the Constitution), with the administrative courts having the competence to settle disputes arising from administrative legal relations. In the framework of administrative justice, mention should be made to the urgent proceedings foreseen in the Code of Administrative Courts Proceedings, namely the writ for fundamental rights, freedoms and guarantees protection (articles 109–111 of the Code) where an expedite ruling imposing a certain conduct on the public administration is indispensable so as to assure the timely exercise of a fundamental right, freedom or guarantee.
Moreover, citizens are entitled to legal protection, and access to the courts to defend their rights, without any form of economic impediment, is guaranteed. Access to the courts is guaranteed by the Constitution (Art. 20). This right is protected even during a state of siege or of emergency so far as the defence of the rights, liberties and guarantees undermined or jeopardized by an unconstitutional or unlawful measure is concerned (Act No. 44/86 of 30 September 1986, Art. 6). The prime objective of this regime is to ensure the effectiveness and practical implementation of the right of access to justice.
Court and lawyers’ costs can be covered by legal aid. The provision of legal aid assumes the following forms:
(a)Total or partial exemption from the payment of the proceeding’s costs and fees or deferring payment of the proceeding’s costs and fees;
(b)Nomination of a barrister or solicitor and payment of the respective fee, or deferring payment of the referred fee.
Only persons who can prove that they lack sufficient resources to pay court fees or lawyers’ retainers are eligible for legal aid. The following persons are eligible for legal aid:
(a)Portuguese and European citizens;
(b)Aliens and stateless persons who have a valid authorization to live in the European Union;
(c)Aliens without a valid authorization passed by a Member State of the European Union if the state of the alien guarantees the same protection to Portuguese citizens;
Legal aid is provided by lawyers in private practice. The participation in legal aid scheme by lawyers is optional. Lawyers are appointed by the Portuguese Bar Association ( Ordem dos Advogados ). The lawyer appointed to provide legal aid may refuse his services if he puts forward reasons for this refusal.
(b)The right to appeal the Constitutional Court
The Constitutional Court has specific jurisdiction over matters of a constitutional nature, namely the control of the constitutionality of legal rules (Arts. 277 to 283 of the Constitution).
In this context, the Court has competence to rule on both cases of abstract control (including the preventive control of constitutionality, the successive control of constitutionality and the control of unconstitutionality by omission) and control of constitutionality in judicial cases. As for the latter, one should underline that in the matters that are brought to trial, the courts cannot apply rules that contravene the Constitution (article 205 of the Constitution), and the individuals have the right to appeal the Constitutional Court against court decisions on issues of constitutionality, according to the legal applicable provisions.
(c)Liability of public bodies
Jointly with their officeholders, staff and agents, the state and all other public bodies are civilly liable for such actions or omissions in the performance of their functions resulting in a violation of fundamental rights, freedoms and guarantees or in any loss to somebody (article 22 of the Constitution). The Law on the Regime of Extra-Contractual Responsibility of the State and other Public Entities (Law 67/2007, of 31st of 2007), allows for the reparation of damages arising from the exercise of legislative, judicial, and administrative powers. According to this law, in the exercise of its administrative power, the State and other public entities are solely responsible for the damages resulting from unlawful actions or omissions committed with ordinary negligence, by members of their bodies, employees or agents in the exercise of the administrative function and because of this exercise, the damages wrongfully caused by the administration of justice, including for the violation of the right to a judicial decision within a reasonable time, and the regime of liability for unlawful acts committed in the exercise of the administrative function. In the exercise of its legislative power, the State is held liable for abnormal damages caused to citizens’ rights and legally protected interests that are contrary to the Portuguese Constitution, international law, European Union Law or reinforced legislative act (acto legislativo de valor reforçado).
As far as victims are concerned, they can claim for reparation and compensation from the offender in court, filing a civil request for compensation (article 74 of the CCP). Special protection is afforded to victims of violent crimes and domestic violence (Law 104/2009, dated 14 September), who can ask for the compensation of damages by the State. Compensation may also be anticipated in cases of domestic violence.
(d)The right to popular action (actio popularis)
The Constitution (article 52, par. 3) grants everyone, either personally or through associations defending the interests in question (such as consumer rights and the environment), the right of actio popularis. Law n. 83/95, of August 31, 1985, further implements this right.
In relation to non-judicial mechanisms, one should mention the following.
Right of petition — The Constitution (article 52, par. 1) lays down the right of all citizens to submit petitions for the defence of their rights to bodies exercising sovereign power or any other authority, including the right to be informed of the result of the consideration thereof within a reasonable period of time. Law n. 43/90, of August 10, further implements this right.
The Ombudsman — Everyone has the right to complain to the Ombudsman (Provedor de Justi ç a) against illegal or unjust actions or omissions by the public authorities (article 23 of the Constitution). These complaints are to be investigated by the Ombudsman, who makes such (non-binding) recommendations as deemed necessary with a view to preventing and/or remedying injustices and infringements to the law.
Independent administrative bodies — Foreseen by the Constitution or created by the law, certain independent administrative bodies are empowered to assess complaints by the individuals against violations of their rights. This is the case of the Media Regulatory Entity (ERC), the Data Protection National Commission (CNPD) and the Access to Official Documents Commission (CADA).
Administrative guarantees — Any citizen grieved in his or her rights by an administrative act possesses those means of defence directed at the revocation or the amendment of the act concerned, by means of a claim before the author of the act and/or an appeal before the competent hierarchical superior. This subject is covered by the Code of Administrative Procedure.
Alternative Means of Dispute Resolution — In the last years, reform of the judicial system has been made in order to develop alternative means of disputes resolution. The Ministry of Justice supports the establishment and the application of extrajudicial means of alternative dispute resolution, including mediation, conciliation and arbitration; promotes the creation and support of arbitration centers, justices of the peace and mediation systems; ensures the appropriate mechanisms of access to the law, particularly in the fields of legal advice and information and of legal aid.
Right of resistance — The right of resistance (article 21 of the Constitution) is conceived as a last resort means of protection for everyone facing an order that infringes their fundamental rights, freedoms and guarantees.
6.Institutions and machinery with responsibilities for overseeing the implementation of human rights and for the advancement of women, children and young people, older persons, persons with disabilities, minorities, indigenous peoples, refugees, and IDPs
(a)National Institute for Rehabilitation
The National Institute for Rehabilitation (INR) is a public body with administrative autonomy, depending on the Ministry of Solidarity, Employment and Social Security. Its main purpose is to ensure the planning, execution and co-ordination of national policies by promoting the rights of persons with disabilities.
The INR’s main guidelines are based on the principles of non-discrimination, inclusion and participation of persons with disabilities, with the fundamental objectives of raising the awareness about the rights of persons with disabilities; ensuring protection against discrimination; and the full realisation of their human rights through necessary measures for their effective inclusion in all domains of social life.
Its role and competences were substantially reinforced by Law 46/2006, of 28 August, which prohibits and punishes discrimination based on disability and existence of risk aggravated by health conditions.
(b)National Commission for the Protection of Children and Young People at Risk
The National Commission for the Protection of Children and Young People at Risk (CNPCJR) aims at the co-ordination, follow-up, and assessment of the activities of public bodies and community agencies involved in the protection of children and young people at risk. It depends on the Ministry of Justice and Ministry of Solidarity, Employment and Social Security but it acts with autonomy. There is an ongoing process of reform of the CNPCJR to enhance the necessary independence and ability to contribute to legislative changes and for planning activities that are coordinated by the CNPCJR. A technical specialized support team, with consulting and executive duties supports CNPCJR activity permanently.
The CNPCJR also follows up, supports and monitors the activity of the Commissions for the Protection of Minors (CPCJ) established in 1991, by reformulating and creating new Commissions according to the Law No. 147/99, to provide a better network for the Protection and Promotion of the Rights of Children and Young People in Danger. These are non-judicial official institutions with functional autonomy aimed at promoting children and young people’s rights, and preventing or protecting them by immediately putting an end to dangerous situations affecting their safety, health, training or full development. The CNPCJR promotes a culture of prevention supporting specific activities and systemic projects to be developed by CPCJ.
The facilities and support materials necessary for the daily management of these Commissions are mainly guaranteed by the municipality. For this, cooperation protocols are celebrated with State services represented in the CNPCJR.
Through the dissemination of the national system for the protection and promotion of children and young people’s rights which implies the implementation of the Commissions’ Functional Model at local level, a coverage rate of almost 100% was achieved in the counties with CPCJ. Presently, there are 306 Commissions for 308 Councils, with 2 more Commissions being set up.
In 2011, a memorandum of cooperation between the Ministry of Health, Ministry of Justice and the National Commission for the Protection of Children and Youth at Risk was signed to establish shared responsibilities and interagency cooperation for the protection of the rights of children and young victims of crime, ensuring that victims are observed in the shortest time by medico-legal or health experts, avoiding repeated scans, and preventing secondary victimization.
The CNPCJR undertook a systematized training plan aiming at qualifying its professional staff working in CPCJ, on family intervention (parental education, mediation and family therapies), followed by the offer of work methodologies and knowledge about the existing legal framework and social responses. It also promotes the implementation of parental training programmes for families at risk, in collaboration with different private associations of public interest and universities.
A Protocol was celebrated between CNPCJR and the National Institute of Legal Medicine for the promotion of joint actions of awareness raising, training, assessment, research, dissemination, and the provision of services to the community.
Since 2004, the CPCJR has been responsible for giving permission to children to participate in activities related to Arts and Entertainment (Decree-law 35/2004, de 29 April — articles 138 to 146 establish the obligation of entities promoting cultural, artistic or publicity activities in which children up to the age 16 participate, as actors, singers, dancers, performers, musicians, models to request permission from the CPCJR for them to take part in the activity).
(c)Governmental mechanisms for gender equality
There are two national mechanisms dedicated to the promotion of equality between women and men: the Commission for Citizenship and Gender Equality (CIG) and the Commission for Equality in Labour and Employment (CITE). The two mechanisms were restructured in 2006 in the framework of the broader National Reform of the Public Portuguese Administration.
( i ) The Commission for Citizenship and Gender Equality (CIG)
CIG is a governmental mechanism for promoting gender equality under the Office of the Presidency of the Council of Ministers and accountable to the Secretary of State for Parliamentary Affairs and Equality. It has its head office in Lisbon and a branch in Oporto. The CIG is the national mechanism responsible for the elaboration and the implementation of global and sectoral policies for the promotion of citizenship and the promotion and defence of gender equality in all the areas of political intervention. The Organic Law of this national mechanism gives it a renewed perspective: reaffirming women’s rights, gender equality, and combating gender based violence, promoting gender mainstreaming, and combating multiple discrimination.
CIG contributes to the amendment of the regulatory framework, or to its implementation; prepares studies and planning documents to support political decision-making; promotes education for citizenship and activities to raise civic awareness with a view to identifying situations of discrimination and ways of eradicating them; suggest measures and carries out activities to counter all forms of gender based violence and to support its victims and provides technical supervision of structures for assisting and caring for victims. It also co-operates with international and EU organizations as well as with similar entities in other countries.
The CIG has an Advisory Board composed of:
A Section of Non-governmental Organisations (40 NGO’s — 29 are women’s rights associations and NGOs working in the field of gender equality and 11 are working in the area of human rights);
An Inter-ministerial Section comprising representatives of each line Ministry and Services that work as gender focal points in their respective areas with the aim of mainstreaming gender equality into all policies. They have the formal Statute of Advisers for Equality. The “Equality Adviser Statute” assigns a clear mandate and functions to the Advisers for Equality and encompasses the creation of intra ministerial working teams to ensure the integration of a gender equality dimension in all sectors of central public administration;
A Technical and Scientific Advisory Group chaired by the member of the Government in charge of the CIG that is composed by the president and the vice-president of the Commission and 10 personalities with recognized scientific expertise in the fields of citizenship, human rights, women’s rights and gender equality.
(ii) Commission for Equality in Labour and Employment
The Commission for Equality in Labour and Employment (CITE) works under the direction of the Ministry for Solidarity, Employment and Social Security, in articulation with the member of Government in charge of gender equality. It is a tri-partite body composed by government representatives and social partners representing the employees and the employers. Its main tasks are:
The promotion of equality and non-discrimination between women and men in work, employment and professional training both in the public and private sector;
The protection of maternity and paternity as well as the reconciliation between professional, family and personal life, especially by issuing Opinions or Recommendations regarding complaints on the grounds of gender based discrimination.
The Commission evaluates the complaints of discrimination and draws up reports on these matters, which are sent to interested parties. It is compulsory for employers to ask for the legal opinion of this Commission before the dismissal of pregnant, puerperal or breast-feeding women.
The legal opinion is given in 30 days. If the opinion is negative, only a court of law may authorize the dismissal. Employers are also required to seek the opinion of this Commission if they do not agree with the requests of reduced timetables or flexible time arrangements for women and men with small children. The opinion must be given within 30 days and, again, if the opinion is negative only a court of law may authorise the employer to deny the employee’s request.
CITE maintains the register of court decisions with regard to equality and non-discrimination between men and women in work, employment and vocational training, in order to provide information about any final decision.
C.Framework within which human rights are promoted at the national level
1.National and regional parliaments and assemblies
The Assembly of the Republic is the representative assembly of all Portuguese citizens (article 151 CPR). The Constitution stipulates that parliamentarians shall be elected by constituencies with geographical limits laid down by the law (article 150 CPR). All Portuguese citizens entitled to vote may stand for election, subject to the restrictions laid down by electoral law (article 150 CPR).
Parliamentarians shall exercise their mandates freely (article 155 CPR) and may table proposals for constitutional amendments and bills; put questions to the Government concerning any of the latter’s acts or any act of the Public Administration; request and obtain, from the Government or from the organs of any public body, such data, information and publications as they may consider useful for the fulfilment of their mandates; and request the establishment of parliamentary committees of inquiry (article 156 CPR). The Constitution determines immunities, rights, privileges and duties of parliamentarians as well as grounds for forfeiture and renunciation of mandates.
The Assembly of the Republic is responsible for revising the Constitution in conformity with the rules for constitutional revision. Revision may take place once five years have elapsed after publication of any revision law or at any time by a majority of four-fifths of the parliamentarians entitled to vote (article 284 CPR). However, revisions must respect certain limits, such as national independence and the unity of the State; the republican form of government; the separation of the church from the State; the rights, freedoms and safeguards of citizens and workers; the coexistence of the public, the private and the cooperative and social sectors, with respect to ownership of the means of production; the existence of economic plans; universal, direct, secret and periodic suffrage for the appointment of the members of the organs of supreme authority, the autonomous regions and the organs of local government; plurality of expression and political organization, including the right to a democratic opposition; separation and interdependence of the organs of supreme authority; the scrutiny of legal provisions for unconstitutionality by act or omission; the independence of the courts; the autonomy of local authorities and of the of the Autonomous Regions of the Azores and Madeira (article 288 CPR).
The Assembly approves international conventions on matters falling within its competence, treaties involving Portugal’s participation in international organizations, treaties of friendship, peace treaties, defence treaties, and any other treaties that the Government submits to it (article 164 CPR). It watches over observance of the Constitution and the laws and the acts of the Government and the Administration. It scrutinizes the decree-laws and may refuse ratification. It also examines the accounts of the State and other public bodies (article 165 CPR).
In regard to its own competence, it legislates, inter alia , on the election of persons to hold office in the organs of supreme authority; the referendum regime; the organization, functioning and procedures of the Constitutional Court; the organization of the national defence; states of siege and states of emergency; situations relating to Portuguese citizenship; and political parties and associations.
2.National human rights institutions
Under article 52 of the Constitution, all citizens may, individually or collectively, submit to the organs of supreme authority or to any other authority, petitions, representations, claims or complaints for the purpose of defending their rights, the Constitution, the law or the general interest. To that end, a number of offices and departments have been set up with the responsibility, within the limits of their competence, of promoting, protecting and publicizing human rights. These agencies are: (a) the Ombudsman (Provedor de Justiça), (b) the Attorney-General’s Department and (c) the Office for Documentation and Comparative Law. There is information related to the work done in the area of rights of children, of persons with disabilities and of women in Part V, 6, a); b); and c) above.
(a)Office of the Ombudsman (Provedor de Justiça)
The Ombudsman ( Provedor de Justi ç a ), created by a Decree-Law of 1975, was taken up by article 23 of the Constitution, with competence to monitor the application of all existing legislation. The Ombudsman is democratically elected by 2/3 of the members of Parliament. He/she has the power to supervise the acts of Public Administration, or of other entities, including private ones that pursue public interest, and also to recommend certain measures to the public powers in order to combat illegalities or injustices. The independence in the exercise of the functions of the Ombudsman — a requirement of its quality as National Human Rights Institution, in accordance with the Paris Principles (Status A accreditation) — is cemented by the elaboration of reports addressed to the bodies of international organizations within the various mechanisms implemented to verify the fulfilment of international obligations by the Portuguese State.
The Ombudsman is an independent organ dedicated to the defence of the legitimate rights and interests of citizens, through informal methods which ensure the legality and justice of the administration. Through its work for the promotion and protection of human rights, the intervention of the Ombudsman is naturally reflected in the application of the rights recognized by the international instruments, which are themselves reflected in the text of the Constitution.
According to the Ombudsman’s statute, citizens may submit to him / her, orally or in writing, complaints about actions or omissions of the public authorities. The Ombudsman investigates them and takes a stand, namely through recommendations to the competent bodies necessary to prevent or redress injustices. In addition, the Ombudsman is empowered to: (a) recommend ways in which to correct the illegal or unjust acts or to improve the services of the administration; (b) draw attention to any flaws in legislation and request an evaluation of the legality or unconstitutionality of any provision whatsoever; (c) give opinions on all questions which are put to him by the Parliament; and (d) ensure the dissemination of information on the fundamental rights and freedoms, their content and value and on the objectives of the activities of the Ombudsman institution.
The positions on issues relevant to the rights and interests of citizens and other important information regarding the Ombudsman´s activity for the promotion and protection of human rights are published on its website (www.provedor-jus.pt).
In carrying out his / her duties, the Ombudsman may: (a) make visits of inspection to any sector of the administration, examine documents, hear the organs and agents of the administration or request any information which he considers necessary; (b) conduct any inquiries which he considers appropriate, using any procedure in order to discover the truth, within the limits of the legitimate rights and interests of the citizens in this area (one such instance was the inquiry into acts of torture committed by some police officers and prison officers, which attracted wide media and public attention, and led to the adoption of various measures by the public authorities); and (c) seek, in cooperation with the competent organs and departments, the most appropriate solutions to the defence of the legitimate interests of citizens and the best means of improving administrative services.
The Ombudsman may order the publication of communiqués or information bulletins on findings, making use of the mass media when necessary. Furthermore, he / she submits an annual activity report to the Parliament, which is published in the official journal of that organ. The report includes statistical data on the number and nature of the complaints lodged, allegations of unconstitutionality submitted and any recommendations made. The report also includes a description of the Ombudsman’s activities as a National Human Rights Institution.
As recognized in the Ombudsman’s reports, the average citizen, even if he / she has no legal training or qualification, often applies to this institution recognizing that it has a real capacity to intervene and revealing that he / she is aware of his / her rights and requires the Government and the civil service to carry out their duties.
(b)The Prosecutor-General’s Department
In the area of the protection of citizens, account should also be taken of the statutes of the Prosecutor-General’s Department (Act nº. 47/86 dated 15 October and Law 60/98 dated 27 August).
The fundamental duties of the Office of the Attorney-General’s Department (Art. 3) are to:
(a)Represent the State, legally incapable persons, and missing persons (3.a);
(b)Exert penal action under the principle of legality (3.c);
(c)Represent workers and their families ex officio in the protection of their social rights. One of the most important areas of intervention of the Prosecutor-general’s Department is that of minors, either in respect of the proceedings brought before the domestic courts in such cases as adoption, parental responsibility, alimony or in respect of the Juvenile Court and the application of protection, assistance or education measures. If the security, health, moral upbringing, and education of the minor are not in jeopardy the Court may still decide to apply measures which it considers adequate, specifically the placement of the child in a family or in an education or welfare establishment. The Prosecutor-General’s Department will intervene even in these cases, by instituting legal proceedings or by using other legal means to defend the rights and interests of minors (3.d);
(d)Direct the criminal investigation and to promote and coordinate the actions for the prevention of crime (3.h, i);
(e)Defend democratic legality.
(c)The Office for Documentation and Comparative Law (ODCL)
This Office was established under the direct control of the Attorney-General of the Republic (Decree-Law 388/80, of 22 September). Its purpose is to ensure the access of members of the Portuguese legal professions to foreign, international, and community law and it has been given the responsibility of setting up and managing a documentation centre on human rights and international, foreign, and community law.
The Office also has a webpage containing information regarding the work of the United Nations in the area of human rights in Portuguese, as well as the text of all reports presented by Portugal to Treaty Monitoring Bodies (and the Summary Records of the reports’ presentations, as well as the respective concluding observations) (www.gddc.pt). The ODCL is also devoted to disseminating the content of the European Convention on Human Rights and the rulings of the ECtHR related to Portugal with the respective translations into Portuguese that are also linked in the ODCL’s website, among many other European Human Rights Law materials.
The ODCL has translated into Portuguese the Collection of Fact Sheets, as well as the Professional Training Series of the OHCHR available on the internet (http://www.gddc.pt/direitos-humanos/paginaAFichas.htmlandhttp://www.gddc.pt/direitos-humanos/paginaBFormacaoProfissional.html). The ODCL webpage also contains bilingual templates (Portuguese/ English) for the presentation of complaints before the United Nations Treaty Bodies, as well as before the European Court of Human Rights. It also contains a database of all treaties to which Portugal is a State Party, including the text (in Portuguese) of all human rights treaties to which Portugal is a State Party.
3.Dissemination of human rights instruments
All human rights instruments to which Portugal is a State Party have been translated into Portuguese and published in the Official Gazette. These are freely available on the internet on the Official Gazette’s webpage (http://www.incm.pt/site/diario_republica.html) as well as on the website of the ODCL. Moreover, the ODCL has edited a two volume compilation (approximately 1400 pages) of universal and regional human rights standards in force in Portugal, including treaties as well as political commitments and declarations, to be freely distributed to Universities, Libraries, Research Centres, and also to Portuguese speaking countries. The Ministry of Justice also has an active policy of dissemination of international human rights instruments, through the holding of meetings, conferences, professional and academic courses, activities and international and national forums, publications and recommendations of international organizations; legislative information and national and international jurisprudence and national plans. It promotes and welcomes visits of technicians from other countries, prepares publications of various kinds, conducts meetings and clarification sessions, and produces educational material.
A significant number of references to international human rights instruments can be found in the institutional websites of the different Ministries, which are structured not only to facilitate access for professionals but also to the public at large. A particular emphasis is given to updated news and events calendars related, among others, to commitments undertaken by Portugal and celebration of specific “human rights days”.
In 2012, CIG published and widely disseminated a leaflet and Guide about CEDAW and its Optional Protocol, the Committee on CEDAW and its reporting procedures, including “Shadow Reports” and the Communications Procedure which allows either individuals or groups of individuals to submit individual complaints to the Committee.
Concerning the protection of children and young people at risk and in danger, the CNPCJR promotes, within the framework of the Convention on the Rights of the Child, awareness raising in relation to child rights and to the need for a culture of prevention of child abuse and neglect by promoting specific initiatives such as the National Campaign of Child Abuse Prevention Month (CAPM). In 2012 there were 70 CPCJ involved in the CAPM campaign. In 2013, the CAPM Annual Report points to 87 CPCJ, 155 schools, 697 teachers and 13.827 children and young people directly involved in this campaign. The 87 CPCJ involved covered the 16 Portuguese districts and the two Autonomous Regions of Madeira and Azores. 64% of the CPCJ involved already expressed their will to include the CAPM campaign in the Municipality Plan against Violence, in an effort to integrate several instruments concerning these issues and avoid sectorial interventions.
On the 1st of September 2011, CNPCJR launched on–line manuals with guidelines for Education, Social Services, Police forces, Health and Media professionals designed in partnership with several public and private entities as well as with some CPCJ (www.cnpcjr.pt/direito/guiasparaprofissionais). Other CNPCJR materials such as books, posters, leaflets and brochures are widely disseminated. The CNPCJR delivers professional specialized certificate training on specific subjects mainly related to child protection and to child abuse and neglect, having already certified, together with the Ministry of Education, 250 education professionals. CNPCJR is also responsible for counselling, referral, and clarification of questions raised by the CPCJ, the departments of Public Administration and the public at large.
All the publications referred to are widely disseminated among decision makers, enterprises, municipalities, regional authorities, universities, research centres, women’s non-governmental organisations, libraries, gender equality mechanisms of foreign countries, researchers and the public at large.
4.Raising human rights awareness among public officials and other professionals
Portugal is well aware of the importance of training in the prevention of violations of human rights. For a number of years, it has been providing systematic training for various professions, whose work is crucial for the implementation of fundamental rights, freedoms, and guarantees.
(a)The Centre for Judicial Studies (CEJ)
Since its foundation, this College has provided training in the area of fundamental rights and the international machinery for their protection, helping to make judicial magistrates aware of the value and importance of international law by studying the main instruments in force in Portugal. Because of its regional character, the European Convention on Human Rights is also given full coverage. On the other hand, the College and its students have been associated with several scientific and cultural activities for the dissemination of knowledge of international law and the work of international organizations.
As far as justice sector actors are concerned, education and training in human rights is provided to judges and prosecutors during their legal and judicial education years at the Centre for Judicial Studies. In 2013-2014 alone, CEJ held training actions on trafficking in human beings, nationality law, asylum, refugees statute, international criminal law, the International Criminal Court, and the position of the Portuguese Speaking Countries. It has also produced several e-books, notably on the “Remembrance of the Holocaust”. The implementation of several training manuals for judges emphasizing the Manual of Best Practices on the relationship of the judiciary with situations of disability is under consideration.
It is important to emphasize that the Bar has been involved in this work by training young lawyers, whose statutes require that they keep their terms before beginning to practise their profession. For example, in 2014, a course on “Human rights — concepts and international protection” is to be conducted in the context of advanced distance learning; and to also further train on procedural handling in the European Court of Human Rights.
(c)The police forces
The recruitment and training of the officers of the various police forces encompass fundamental rights, guarantees, and freedoms. In regard to the relationship between officer and the general public, every officer must carry with him/her a code of conduct which emphasizes the purposes of police work, such as the defence of democratic legality and of the fundamental rights of citizens, and includes standards of courtesy towards the public and a code of personal behaviour. The code states that the work of the police must be carried out impartially and with respect for the fundamental rights and freedoms, within the limits of the law and without resort to illegal or patently excessive methods. The training of these officers always includes an important chapter on rights, freedoms and guarantees, either during the basic training period or during ongoing training.
The course deals with the universality of human rights, non-discrimination, information and legal protection, the activities of the Ombudsman (Provedor de Justiça) and the courts, giving pride of place to the study of the regional and global protection systems. At this stage, the Universal Declaration of Human Rights, the international covenants on human rights, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Convention on the Control of the Acquisition and Possession of Firearms by Individuals, and the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches, all of which are in force in Portuguese domestic legislation, are all object of study.
It is interesting to note that, the selection and recruitment of private security guards must also take into account the awareness of the obligations concerning fundamental rights, freedoms, and guarantees.
(d)The prison service
The prison service is given information about relevant international instruments, particularly the Code of Conduct for Law Enforcement Officials; the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Standard Minimum Rules for the Treatment of Prisoners; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and the European Prison Rules.
(e)National Health Programme for Child and Youth
The new National Health Programme for Children and Youth which came into force on June 1, 2013, reinforced the protection of children and youth by including, as a health monitoring parameter, the interventions to:
a)Promote the prevention of emotional and behavioural disturbances and ill-treatment;
b)Detect and refer situations that may jeopardize the life or the quality of life of children and youth, such as changes in behaviour and emotional and relational disorders;
c)Support and encourage proper exercise of parental responsibilities;
d)Identify, support, and guide children and families who are victims of abuse and violence, such as neglect, physical/psychological/sexual abuse, bullying, and harmful traditional practices, including female genital mutilation.
Health professionals now have the possibility to register for information on detection of risk factors, signs and symptoms of abuse, clinical management and referral of situations which will also produce statistical and epidemiologic information on the matter.
Based on the experience of the Family Violence Service of Sobral Cid Psychiatric Hospital (Coimbra / Central Region), the National Programme for Mental Health has been promoting training initiatives on the subject, since 2010, for professionals of Primary Health Care and Community Mental Health services across the country. Simultaneously, it has supported relevant experiences on the topic in the five mainland regional health administrations, developing the creation of an indicator that registers situations of family violence that need to be further monitored in the computer systems of hospital emergency departments and primary care services. This initiative has been running in partnership with the Commission for Citizenship and Gender Equality, and will hopefully lead to the development of a Master’s Degree in Family Violence, in partnership with the National Institute of Legal Medicine and Forensic Sciences, and the Coimbra University.
Portugal is strongly committed to promoting the health of children and adolescents, including their mental health. The national priorities in this area are embodied in the National Mental Health Plan for 2007-2016, which contains specific measures in the area of Childhood and Adolescence. In Portugal, Child and Adolescent Psychiatry targets children and adolescents until they are 18 years old, and includes mental health assessment, diagnosis, and therapeutic strategies for situations of mental disorder, as well as preventive interventions in risk groups. Child and Adolescent Psychiatry works through a Hospital Referral Network, which operates at three levels: primary health care, local specialized services, and regional specialized services. The following groups are given priority: pregnancy and early childhood; adolescents working on the promotion of healthy lifestyles; and suicide prevention, with a special role being played by schools, encompassing the areas of interpersonal relationships, sexuality, assertiveness, prevention of drug abuse, and violence.
(g)Health Action for Children and Youth at Risk (ASCJR)
It is known that the vast majority of child and youth abuse occurs in the context of domestic violence. These situations pose particular challenges to health care professionals, whether in primary health care or in hospital care, who hold particular responsibility for the early detection of risk factors, alarm signals and signalling of children and youth at risk, or in transition to real danger.
The Health Action for Children and Youth at Risk, created by Order of the Minister of Health n 31292/2008, of 5 December, has organized health intervention in this area for children and young people aged up to 18 years in different living contexts. It can last up to 21 years, when it has begun before the child reaches adulthood, and after, as provided in the Law of Protection of Children and Young People in Danger (Law n. 147/99, of 1 September), when requested by the youngster.
Operational multidisciplinary teams were created in Primary Health Care, called Support Nuclei for Children and Youth at Risk (composed at least by 1 doctor, 1 nurse + 1 mental health professional and / or social worker), and in hospitals with paediatric care, called Hospital Support Nuclei for Children and Youth at Risk (composed at least by 1 paediatrician, 1 nurse, 1 social worker, and, if possible, 1 mental health professional and / or professional from the legal department). These multidisciplinary teams are integrated in a National Network of Support Nuclei for Children and Youth at Risk, whose main role is to provide advice to healthcare professionals.
The Practical Guide related to Approach, Diagnosis and Intervention — Maltreatment in Children and Youth, published in February 2011, aims at motivating health professionals to comply with their role in the prevention of, and intervention in, maltreatment, by clarifying basic concepts, facilitating the identification and intervention processes regarding situations of maltreatment and promoting coordinated actions between different entities responsible for action.
(h)Health Action on Gender, Violence and Life Cycle
Because violence, in its different forms over the life cycle, has a severe impact on the physical and mental health of individuals and populations, the Ministry of Health created an integrated intervention model on interpersonal violence throughout the life cycle called “Health Action on Gender, Violence and Life Cycle” (Order 6378/2013, of 16 May), aimed at protecting the direct or indirect victim, reversing the conduct of the perpetrator and stimulating the development of more balanced family dynamics. The Health Action goals are to promote equality and, in particular, health equity, regardless of sex, age, health status, sexual orientation, ethnicity, religion and socioeconomic status; to prevent interpersonal violence, including domestic violence, stalking, dating violence, violence against older persons, vicarious violence and human trafficking; and to encourage the functional articulation of the ASCJR with the intervention in the field of adult violence, thus promoting an integrated approach to combating violence. The Health Action is materialised through interdisciplinary teams for the Prevention of Violence in Adults.
( i ) Reception of foreign citizens in the National Health System
In 2013, the Directorate-General of Health and the Central Administration of the Health System published a Guide for the reception of foreign citizens in the National Health System in order to ensure the correct identification of foreigners when accessing the National Health Service, as well as the respective financial responsibility. The Guide defines and standardizes procedures, taking into account the implementation of national, European, and international legislation covering the access of foreigners to the Portuguese health system, ensuring equal treatment in the national territory.
In 2014, Law 15/2014, of 21 March, has gathered and unified all existing legislation on the rights and duties of the patient, namely the rights of choice, information, consent, spiritual, and religious assistance.
5.Promotion of human rights awareness through educational programmes and Government-sponsored public information
(a)Ministry of Justice
The Ministry of Justice contributes for the promotion and awareness of human rights through studies, seminars, translations, and a permanent dissemination policy through its internet webpage. Special cooperation activities on human rights are held with the Portuguese speaking countries.
(b)Office of Documentation and Comparative Law of the Attorney General (ODCL)
The Internet Homepage of the ODCL contains extensive human rights information (UN and Council of Europe systems).
In the Human Rights Section of the above mentioned Homepage one can find an explanation of the functioning of the individual complaints system in the framework of the European Convention on Human Rights and of the United Nations treaty bodies.
As already mentioned above, the text of several human rights instruments is published on the Homepage in Portuguese, as well as the general comments of the different United Nations treaty monitoring bodies and the Case-law of the European Court of Human Rights and the European Commission. All this documentation is aimed not only at the Portuguese population, but equally at all seven Portuguese speaking countries.
The ODCL also responds to requests made by letter, fax, telephone or e-mail on human rights documentation, by Government agencies, courts, private persons, or even foreigners interested in the Portuguese experience in this field.
(c)Ministry of Education
The Framework Education Act (Legislation: Law no. 46/86, 14th October), is informed by a global active citizenship perspective which aims at preparing students for critical and independent thought on spiritual, aesthetic, moral and civic values, and at enabling their balanced and harmonious development — in short, aiming at educating students to be responsible citizens, capable of autonomous attitudes.
Following a recent revision of the curriculum, education for citizenship is now embedded in all areas/subjects at all school levels (from kindergarten to secondary school) through a cross-curricular approach (Decree Law no. 139/2012, of 5 July). The cross-cutting character of education for citizenship is being reinforced by establishing contents and curriculum guidelines. It is not an independent subject with mandatory offer but schools have the possibility to decide on its offer as an independent subject, in basic education.
The curricular approach of education for citizenship can take on different shapes, depending on the dynamics adopted by schools in the context of their autonomy, including through the development of projects and activities of their initiative, working together with families and entities that intervene in this context, under the framework for the relationship between school and community.
Furthermore, “Education for citizenship guidelines” was approved on December 2012. Some documents have already been produced and others are under elaboration, in cooperation with public departments and institutions, and several civil society partners, to be used as systems of reference in the approach to the different dimensions of citizenship (intercultural education, human rights education, education for security and peace, development education, gender equality education, financial education, road safety education, media education, European dimension of education, entrepreneurship education, education for environment and sustainability, consumer education, education for risk behaviours, education for volunteering, and education for health and sexuality).
The general professional profile of nursery educators and basic and secondary education teachers includes competences required to educate and teach for citizenship awareness. They include the conscience of the civic dimension of their role and corresponding ethic and deontological principles and values; the capability of promoting participated rules of everyday life; the flexible management and settling of interpersonal conflicts and problem solving; the concept of schools and communities as spaces of education for inclusion and social intervention.
Schools, from kindergarten to secondary education, develop projects for promotion of health education which address the following thematic areas: Nutrition Education and Physical Activity, Sexual Education and Prevention of Sexually Transmitted Infections, Prevention of use of Psychoactive Substances, Mental Health and Prevention of Violence at school.
In order to improve the educational success of the immigrant children recently arrived in the Portuguese educational system, the Ministry of Education and Science is implementing support measures for the acquisition of the Portuguese language, as an object of study and as a language of schooling, through the offer of the school subject Portuguese as a non-native language (Português Língua Não Materna). The intention is to ensure that all children that are non-native Portuguese speakers benefit from equal conditions to achieve the school curriculum and educational success, irrespective of their mother tongue, culture, social background, origin, and age.
The immigrant children placed in the A1, A2 and B1 language levels, according to the Common European Framework of Reference for Languages, can also benefit from specific assessment criteria as well as final exams in the Portuguese subject adequate to their language level. The implementation of this educational measure can also directly or indirectly promote the social integration of immigrant children and their families in the community.
Through its Ministry of Education, Portugal has actively participated in the Council of Europe project “Education for Democratic Citizenship”, since 1997, renamed in 2004 “Education for Democratic Citizenship and Human Rights”.
Studies on Education for Democratic Citizenship are being developed in several higher education institutions as well as in other institutions. Sociocultural Mediators ( Mediadores Culturais ) have frequently been appointed by local authorities or special employment programmes to work in schools with a high level of ethnic diversity. These mediators have played an important role in intercultural dialogue and in further promoting family participation in school dynamics.
Since 1990, European Clubs (Clubes Europeus )have been set up in schools at all levels of education to help students improve their knowledge about the geography, history, values and culture of Europe and its countries. All 300 Clubs form the the National Network of European Clubs (Rede Nacional de Clubes Europeus), coordinated by the Ministry of Education.
The Youth Parliament program is organized by the parliament in collaboration with other entities, with the objective of promoting education for citizenship and the interest of young people in the debate of current topics. The programme involves two National Sessions at the parliament, prepared throughout the school year, with the participation of the Portuguese parliamentarians, including the Commission for Education, Science and Culture, the parliamentary body responsible for guiding the programme. All schools from the second and third cycles of basic education and from upper secondary education are invited to participate.
(d)Social Security Institute
The Social Security Institute (ISS, IP) has developed the project ‘We want to talk to you about the rights of older persons. What you need to know to choose a social service?’ The project intended to meet key needs, abilities and expectations of older persons and their families. A brochure was produced, aiming at raising awareness about the rights of older persons, the type of social services available, and about what to pay attention to when choosing a social service. It does so by informing older persons, including persons aged 65 and over, about their rights as citizens, and about their guarantees and responsibilities as clients of social services, namely of residential facilities. Furthermore, according to recommended standards in social services, the brochure aims to assist in a better decision making when choosing the social service and demanding and participating in its management and quality of care deliverance.
Until 2013, thousands of brochures were disseminated throughout the country, especially in social security district and local services.
6.Promotion of human rights awareness through the mass media
A nationwide prevention and victim protection strategy was implemented in the last decade, in partnership with civil society, comprising annual information campaigns: the 2010 campaign specifically aimed at encouraging reporting of domestic violence, while marital homicides and vicarious victimization were in focus in 2011 and 2012, respectively. These campaigns must be considered in conjunction with all other training and awareness-raising measures set out above and with measures adopted by law enforcement agencies, namely within community policing strategies, such as an increase in the number of agents in victim-support teams, the creation and improvement of dedicated facilities for victims in police stations, and activities undertaken within the “Safe School” program.
CIG promoted the first governmental campaign against homophobic bullying. It was launched on 9th July 2013, mainly targeted to the youth, in order to promote a change of attitude and raise the awareness of the population to the hostile effects that homophobic bullying causes on its victims. The final aim was the eradication of homophobic and transphobic violence in the Portuguese society, reducing the social costs and eliminating the suffering of victims of such violence, as well as of family and friends www.dislikebullyinghomofobico.pt.
In October 2013 CITE designed and implemented a national campaign to promote the reconciliation of professional, family and private life under the motto “Time to have time!”. This campaign is addressed to men and women, workers, employers, and general public http://www.youtube.com/watch?feature=player_embedded&v=9BR6iMfbp8M.
On the International Day for the Elimination of all Forms of Violence against Women, the Portuguese Government and the Executive Secretary of the Community of Portuguese speaking countries (CPLP) launched a joint campaign to be replicated in all Member States of the CPLP, under the motto “I set my face against violence”. This campaign followed the resolution of the Council of Ministers of CPLP, of 18 July 18, 2013, which took place in Maputo (Mozambique), reaffirming the commitments undertaken internationally in order to guarantee respect for women’s human rights, including gender equality and the empowerment of women, and reiterating the Convention on the Elimination of All Forms of Discrimination against Women; the resolutions of the General Assembly on the strengthening of the efforts to eliminate all forms of violence against women and the agreed conclusions on the elimination and prevention of all forms of violence against women and girls, adopted during the 57th Session of the Committee on the Status of Women. More information in: http://www.naoviolenciacontramulheres.cplp.org/.
Regarding awareness raising campaigns against trafficking of human beings, and highlighting the most recent ones, UNODC’s campaign “Blue Heart” was launched in Portugal in the spring of 2012 and re-launched in October. On 18 October 2013, Portugal launched a national campaign targeting sexual exploitation, labour exploitation and begging. This campaign was broadcast on radio, regional press, television, cable channels, outdoors at railways stations, news and broadcast advertising space, and shopping malls. In December 2013 a documentary related to trafficking of human beings was broadcast as an initiative integrated in one of the measures of the II National Plan against Trafficking in Human Beings.
(a) Award “Parity - Women and Men in the Media”
The award “Parity — Women and Men in the Media” is granted yearly since 2005 and has so far distinguished several works, as well as journalists in Portugal. The award aims to raise awareness among media professionals to the importance of journalistic work on the issue of gender equality and non-discrimination, and applies to journalistic, creative or other media products, whether on paper, video, digital and audio support.
(b) Ongoing training addressed to media professionals on “Gender and Information”
The Commission for Citizenship and Gender Equality (CIG) has been promoting a 12 hours training module entitled“Gender and Information” addressed to professional journalists in partnership with the Professional Training Centre for Journalists (CENJOR). This training is provided by journalists and/or researchers in the areas of gender and the media and is intended to raise the awareness of media professionals to the gendered nature of information and the media and to enable them to develop a gender sensitive and gender inclusive professional practice. Training focuses on the following contents: the social construction of gender, equality and the status of women in Portugal; gender equality legislation and national and international commitments; the gender perspective applied to information; discourse, gender and deontology; the women’s dimension in events; assigned roles and approaches; the growing feminization of Portuguese journalism; labour issues; new topics, new sources and new perspectives; gender-based violence as an expression of power asymmetries between men and women; violence against women (the case of female genital mutilation); domestic violence as an example of gender-based violence; the media coverage of homicide in the context of intimate relationships.
Awareness-raising addressed to university students of journalism — “Are news gendered?”
CIG has also been promoting an initiative entitled “Are news gendered?” in close cooperation with higher education institutions that offer degree or diploma courses in media/journalism. This initiative consists of a 3 hour session promoted by a journalist renowned for her work and reflection on gender equality in Portugal.
7.Role of civil society, including non-governmental organizations
We will first briefly explain the legal framework for the functioning of civil society organizations in Portugal, and then we will give some examples of activities undertaken by civil society in the area of human rights.
(a)Legal framework for the functioning of civil society organizations in Portugal
The right to assemble and demonstrate is expressly guaranteed under Article 45 of the Portuguese Constitution, which states that states that citizens have the right to assemble peacefully and unarmed, even in public places, without prior authorisation. This excludes any possibility of restricting the freedom to meet and assemble on the part of human rights defenders.
Freedom of association is expressly guaranteed under Article 46 of the Portuguese Constitution. In general terms, there is no specific mechanism for setting up a nongovernmental organisation aimed at promoting and protecting human rights. The steps to be followed are the same as for any private association and are pursuant to Articles 157 to 194 of the Portuguese Civil Code.
The establishment of these organisations is not subject to any prior administrative control and the Law only requires that the objects pursued are clearly defined, collective, lawful and permanent. Portuguese or foreign nationals, natural or legal, whether coming under private or public law, as long as they have full capacity, may form an association. This idea is reinforced by the provisions of Article 1 of Decree-Law 584/74, of 7 November, which rules the right of association.
The constitution is operated by means of a public deed, which, under the Portuguese legal framework, is a registered instrument. It must state the property and services with which each member contributes to the association’s property and the association’s object, domicile as a legal person, operational mechanisms, and duration, if it is not set up for an unlimited period of time.
All associations must register with the National Register of Legal Persons, although registration is not a prerequisite for legal personality. The association’s statutes shall be published in the Official Gazette. The National Register of Legal Persons shall verify whether undertakings and names comply with the principles of exclusiveness, veracity, and unity. The dissolution of NGOs (like any other association) may be voluntary, by operation of law (e.g. on expiry of a time limit) or ordered by the court (e.g. where the objects are unattainable or have been attained or the association is declared insolvent). Therefore, dissolution is never ordered by an administrative authority nor can it be based upon political grounds.
Furthermore, Article 13 (1) of the Decree-Law 594/74, of 7 November, prescribes that Portuguese NGOs shall be free to join international associations or organisations, providing that these do not pursue aims that are contrary to the Law.
( i ) Public Utility Legal Persons
Associations can request the statute of Public Utility Legal Persons, pursuant to the provisions of Decree-Law 460/77, of 7 November, which prescribes that the competence to declare an association or foundation as of public utility lies with the Government, providing that these entities: [...] pursue aims of general interest, or of the national community or of any region or community, co-operating with the central or local administrations, in such terms that justify, on the part of such administration, the declaration of “public utility” (Article 1 (1) of Decree-Law 460/77).
For the status of public utility to be recognised, two requisites must be fulfilled (Article 2(1)):
(a)Entities must not restrain their associates or beneficiaries to foreigners, or through any criteria contrary to Article 13 (2) of the Portuguese Constitution;
(b)They must be aware of their public utility, promote and develop it, co-operating with the Administration in the fulfilment of its tasks.
Once such status has been recognised, public utility legal persons shall be entitled to some tax exemptions.
(ii) Private Institutions of Social Solidarity
Associations, including NGOs, can be considered Private Institutions of Social Solidarity, in case they pursue the following aims, through the provision of goods or the rendering of services:
Supporting children and young persons;
Supporting social and community integration;
Protecting citizens in old age and disability;
Protecting and promoting health;
Providing citizens with education and professional training;
Solving housing problems.
The legal status of private institutions of social solidarity is presently governed by Decree-Law 119/83, of 25 February (several times amended). These entities shall receive support and funding from the State, namely through co-operation agreements celebrated with the regional social security centres. They can also be put in charge of the management of State or municipal services and facilities. These institutions are supervised by the competent Ministry within their area of activity, but such supervision cannot impose restrictions on their freedom of action. The competent ministries shall organise their registration.
Pursuant to Article 8 of Decree-Law 119/83, registered institutions shall automatically acquire the status of public utility legal persons. Therefore, they shall be entitled to all the benefits thereupon, plus some exemptions such as from corporate income tax (IRC), municipal real estate transfer tax (IMT), municipal real estate tax (IMI), vehicle tax, circulation tax, and legal costs.
(iii) NGOs of Co-operation for Development (NGODs)
Law 19/94, of 24 May has established the legal framework for NGOs of Co-operation for Development (NGODs). Such organisations are registered with the Foreign Affairs Ministry, and they automatically acquire the nature of public utility legal persons with the purposes of promoting co-operation and intercultural dialogue, as well as providing direct and effective support to programs and projects in developing countries, namely through:
(a)Initiatives for development;
(c)Protection and promotion of human rights;
(d)Provision of emergency aid;
(e)Dissemination, information and awareness-raising activities, with the view to develop co-operation and strengthen intercultural dialogue with developing countries.
These organisations pursue their objectives within the civic, economic, social, cultural and environmental contexts and their areas of activity are, namely, the following:
Teaching, education and culture;
Employment and professional training;
Environmental protection and preservation;
Identification and recovery of historic and cultural heritage;
Social and community integration;
Support to the creation and development of programmes and projects.
Their activities can be developed in Portuguese as well as in foreign territory. ONGDs are autonomous, which means that they freely choose their areas of activity, pursue their aims in an independent manner, and are free to establish their internal organisation, within the limits imposed by law and by their statutes. These NGOs also have the right to participate in the definition of the national and international cooperation policies, through the representation in the advisory bodies with competence in the area.
The Law guarantees State support, prescribing that the State accepts, supports and enhances the contribution of NGODs while executing national co-operation policies set up for developing countries. State support to NGODs is made effective through the provision of technical and financial support to programmes, projects and activities of co-operation for development. However, State support cannot impose restrictions on the autonomy of such organisations.
The association of NGODs is also permitted, with the following aims:
To organise services of common interest to the associated organisations, rationalising their means of action and resources;
To represent the common interests of the associated organisations;
To promote the development of the joint initiatives;
To support inter-association collaboration;
To monitor the associated organisations’ activities in relation to any public or private entity.
(iv) NGOs for the Environment
Law 35/98, of 18 July establishes a specific legal framework regarding NGOs for the Environment. These organisations, which shall exclusively pursue the defence and promotion of the environment and of the natural and built heritage, as well as the preservation of nature, shall be recognised as public utility legal persons, three years after registration with the Portuguese Environment Agency. After the recognition of the public utility status, these NGO’s are entitled to the above mentioned tax exemptions and benefits.
(v) Women’s Associations
Law 95/88 of 17 August establishes the rights of action and participation of women’s associations aimed at eliminating all forms of discrimination, and promoting equality between women and men. These associations can have a national, regional or local scope and have the right to participate in the definition of the policies and of the broad legislative orientations for the promotion of women’s rights. They also have the right to be represented in the Advisory Board of the national mechanism for equality between women and men and in other consultative bodies that work with public entities responsible for the formulation of policies for the elimination of all forms of discrimination and the promotion of equality between women and men.
Subsequently, Law No. 10/97 of 12 May, reinforced these rights, not only by recognizing to these associations the status of social partners, entitled to be represented at the Social and Economic Council, but also by granting them the right to receive support from public central administration for the development of their activities to promote equality between women and men.
Decree-Law No. 246/98 of 11 August came to regulate Law No. 10/97 of 12 May, disciplining the recognition process of generic representation, the forms of technical and financial support, the areas for this support and the registration of non-governmental associations of women.
(vi) Public Funding of NGOs
Although NGOs cannot seek profit, it is clear that they are free to receive funding and other resources in order to be able to carry out their activities. This is one of the basic requirements of Article 46 (2), when stating that associations may pursue their objectives freely and without interference from any public authority, and they may not be dissolved by the State, nor their activities suspended, except by judicial decision in the circumstances prescribed by law. Clearly, the restriction upon the receiving of funding would be an abusive interference in NGO activities.
Entities which promote projects of Young Volunteers for Solidarity shall receive the necessary technical and financial support for their development (Article 11 of Decree-Law 168/93, of 11 May and Article 17 of the Governmental Order 685/93, of 22 July), apart from technical support for the development of training activities. Volunteers shall also be granted a stipend to compensate for expenses incurred while performing their tasks (Article 10(1) of Decree-Law 168/93).
Participants in projects of Young Volunteers for Co-operation shall also be granted a stipend to be paid by the Portuguese Youth Institute (Article 12 (2) of Decree-Law 205/93, of 14 June).
(vii) Public funding of NGOs working for the elimination of all forms of discrimination and the promotion of equality between women and men
Since 2007, the Operational Programme for the Promotion of Human Potential, one of the three Programmes developed under the National Strategic Reference Framework (NSRF) (2007–2013), includes in its axis 7 several typologies aimed at developing the capacity of national public institutions and civil society organizations, including women’s organizations for the promotion of gender equality. Axis 7 has a funding of about 83 million Euros for the 6 year period distributed by the following 7 typologies:
7.1Knowledge and Information System;
7.3Technical and Financial support to NGOs;
7.4Training of Strategic Target Audiences;
7.5Awareness raising and promotion of Gender Equality;
7.6Promotion of Women’s Entrepreneurship;
7.7Implementation of projects to fight Violence against Women.
Three of the above mentioned typologies (7.1, 7.5 and 7.7) are managed by the Commission for Citizenship and Gender Equality (CIG) as a beneficiary body. CIG therefore presents an application to the POPH (National Authority) and then implements the projects, covering about 20% of the total funds available under axis 7.
The other four typologies (7.2, 7.3, 7.4 and 7.6) are also managed by CIG but as an intermediate body. This means that POPH delegates to CIG the competence to implement these typologies on its behalf. Hence CIG has put into place a mechanism for providing technical and financial support to projects submitted by the beneficiary entities/projects, covering about 80% of the total funds available under axis 7.
This mechanism is set in place to provide technical and financial support for NGOs working in the fields of women’s rights, citizenship and human rights, in order for them to develop their skills and organizational capacity to supplement public initiatives. Additionally, a specific line of intervention is aimed at deepening women’s capacity to intervene in the economic and social fields, and men’s capacity to intervene in the private sphere. After the first open call from 15 of February 2008 to 15 of April 2009, 80 projects were selected and are being implemented. The majority of these projects develop initiatives simultaneously in various areas of gender equality, with 29 of them focusing on only one dimension of gender equality (women’s entrepreneurship, sexual and reproductive health, psychological violence at work, gender based violence, reconciliation, sports, health, power and decision making, and trafficking in human beings).
Under the same fund, CIG is also managing the technical and financial support for training addressed to strategic groups in the fields of gender equality and prevention of gender based violence, including the training of educators and of qualified agents who operate in the area of gender based violence. After the first open call from 15 of February 2008 to 15 of April 2009, 86 training projects were selected and are being implemented. A second open call was opened from 26 of May 2009 till 25 of June 2009.
There is also a typology of projects aimed at providing financial support for the drafting and implementation of plans for gender equality in central and local public administration institutions and in enterprises. A first open call took place from 15 of February 2008 to 15 of April 2009. 30 projects were selected and are being implemented — 14 in the public sector (11 in local administration; 1 in central administration and 2 in public enterprises) and 16 in the private sector and in associations. The Portuguese Government has paid great attention to the promotion of female entrepreneurship, particularly when associated with innovation. In this regard, 2 calls for proposals with a specific funding line to promote female entrepreneurship already took place under the Operational Programme for Competitiveness. As a result, 9 million euros were distributed among projects that foster female entrepreneurship. Currently another application phase dedicated exclusively to these projects is underway.
In the Operational Programme for the Promotion of the Human Potential (POPH), the support of entrepreneurship, association and business networks managed by women had a first open call from 15 of February 2008 to 15 of April 2009). 52 projects, involving about 740 women, implied a commitment of 10.000.000 Euros.
Guidelines for drafting and implementing these Plans were promoted by CIG and produced by University researchers. They are used since May 2009 as references for the institutions who want to apply to this financial support line.
Since 2007, CIG also manages the NGOs Fund in the “Social area” from the EEA GRANTS Mechanism. Its main goal is to promote the empowerment of civil society organisations in the fields of human rights, citizenship, and gender equality. This Fund has a total amount of 1 079 056 Euros. An open call took place from 25 of February 2008 to 15 of May 2009 for implementing projects in three main areas: (a) promotion of human rights and reinforcement of citizenship (enforcement of human rights and cultural diversity; increase of NGOs skills in the area of citizenship, including gender equality); (b) social and civic participation of young people in the community (sexual and reproductive education and parental responsibility of young people; non discrimination on grounds of social stereotypes and promotion of gender equality in all spheres of life); (c) development of skills for the employability of women, migrants and people with disabilities. 108 projects applied and 14 projects were selected.
(b) Examples of activities undertaken by the civil society in the area of human rights
( i ) Partnerships and programmes
As already mentioned above, the Commission for Citizenship and Gender Equality has an Advisory Board that comprises an NGO section made up of 40 national NGOs working for the promotion of the values of citizenship, human rights, women’s rights, and gender equality, in particular by fighting multiple discrimination based on grounds of sex, religion or belief, disability, age, sexual orientation, social origin, and ethnicity. 25 of them are from the gender equality area and the Board was enlarged to include 15 NGOs working on citizenship and human rights.
Apart from the dialogue and work conducted in the framework of the Advisory Board, the Commission for Citizenship and Gender Equality takes part or is a partner in the activities of civil society, and involves NGOs in several of its activities, by inviting them to participate in working groups for the design and implementation of policies, action plans and activities; by consulting them on different topics and policies; by establishing partnerships; and by involving them in seminars, conferences, and other events.
The Ministry of Health develops several partnerships with civil society associations in order to better reach specific target groups, like in the case of the National Programme for the Prevention of Accidents 2010-2016 promoted by the Directorate-General for Health. This Programme is based on the principles of health promotion and security directed to citizens and the specific environments in which they live, work and study; to the prevention of accidents through actions directed at vulnerable groups and the main risk factors; and to the improvement of the quality of health care, from pre-hospital emergency to the creation of integrated services for victims and their families. Its implementation involves training health professionals so that they can intervene in a competent manner throughout the cycle of trauma and monitoring of unintended accidents.
Under this program, the Project “Babies, Children and Youth in Safety” was developed as a result of a 2010 diagnosis of the inadequate technical competences of health professionals working at Health Care Centers and Maternities regarding restraint systems for children and daily safety education. The diagnosis revealed reduced knowledge on these matters, so this project was elaborated and implemented in order to fill these gaps, by improving the level of literacy of the Portuguese population in relation to child road safety and the adoption of safe behaviors by pregnant women, parents and families in transporting babies in the car, from the time of hospital discharge and throughout childhood and youth.
In September 2013, all Health Regional Administrations were involved in the project, 215 health professionals had already done this training, and 28 training sessions were taking place across the country in Health Care Centers and Maternities. The training entity is the Association for the Promotion of Child Safety, a Private Institution of Social Solidarity. Most of these actions involved security forces, schools and city counties.
Under the same Programme, in 2011/2012 and 2012/2013, the 12th and 13th Editions of the School Contest “Safety for all” were supported through the review and dissemination of an educational kit to help the initiatives of schools and teachers for the most vulnerable users of the road (6-9 year old students).
In the context of citizenship education several initiatives and measures such as projects and programmes, competitions, training courses for teachers, and educational resources are developed by the Ministry of Education and Science, in collaboration with several national and international entities, including public and private agencies and NGOs. A specific example are the Pedagogic Guidelines issued in support of citizenship education for teaching practices namely in the areas of environmental education, consumer education, sustainable development, entrepreneurship, global development, human rights, risk education, and gender equality.
The Programme for Priority Intervention in Educational Territories aims at creating conditions for the promotion of educational success for all students, combating dropout, absenteeism and indiscipline, as well as a qualified transition to working life. Schools with high numbers of students at risk of school and social exclusion, identified and selected on the basis of performance indicators of the education system and social indicators of the territories in which the schools are located, implement an improvement plan, supported by the Educational Project of the School Cluster, organized on the basis of structural axes of intervention, where objectives and goals are defined and allocation of additional human and financial resources are provided. This intervention involves the school community (parents, teachers, enterprises, municipalities, local NGOs, etc.)
EPIS — “Businesspersons for Social Integration” (Empresários para a Integração Social) — is a privately funded NGO, established in 2006 and supported by more than 250 corporate and business associates. Its aim is to empower low-performing pupils (12 to 15 years old) and motivate them to complete compulsory education. The programme is full-time, and delivered by specially trained mediators for school success, who work in cooperation with schools (but outside classes). Based on a well-established methodology, EPIS mediators help selected at-risk pupils develop their non-cognitive skills that will enhance their beliefs, self-esteem, conscientiousness and openness to experience, and are essential for school success. Since 2007, EPIS has supported 11.400 pupils with a team of 124 mediators, in 112 schools.
(ii) Cooperation with third sector (non-profit) organisations
The Portuguese context is characterized by the fact that most social services and facilities for different age groups and people with different needs are developed and delivered by Private Social Solidarity Institutions (IPSS) or other non-profit organisations, and not directly by the State. This model of cooperation between the State and non-profit organisations has been in place since 1992 and is materialised through the establishment of protocols (cooperation agreements) signed between both parties. Such an agreement establishes the legal and institutional framework as well as the technical and financial conditions for the provision of social services by non-profit organisations. The State provides technical and financial support through the Social Security District Centres.
The cooperation model is established in partnership between the State and the three national bodies representing the non-profit institutions (Confederação Nacional das Instituições Particulares de Solidariedade Social ; União das Mutualidades Portuguesas ; and União das Misericórdias Portuguesas) which jointly represent approximately 4,700 institutions. Every year the State and these three bodies meet to discuss the annual Protocol.
The cooperation model currently in place relies on a number of principles in which the institutions complement the state’s responsibilities for the protection of citizens, taking into account the fact that institutions have greater proximity to the community, thereby ensuring greater availability and responsiveness, particularly in emergency situations, and that they are also able to implement a more rational management of resources.
Under the cooperation agreement, the selection of institutions is determined by the Social Security District Centres based on the experience of social service provision and delivery of each institution and the assessment of community needs. The agreement also entails periodic monitoring for review and improvement; if necessary, in case of non-compliance with the defined quality standards on part of the institutions, agreements can be terminated.
(iii) Specific examples
a.Portuguese Association for Victim Support (APAV)
The Portuguese Association for Victim Support (APAV) is a private social solidarity institution and a legal entity for public use, whose statutory aim is to inform, protect, and support citizens who have been victims of penal offences.
APAV is a non-profit organization that provides individualized and qualified support to victims of crime, by rendering free and confidential services. It was founded on 25 June, 1990, with a national scope and its headquarters in Lisbon.
The funding that does not come directly from the Government of the Republic is over 50%, and comes from social sponsoring and the donations, as well as from European projects for which APAV has applied and qualified for funding.
APAV’s Strategic Plan Strategy 2013–2017 identifies the major goals to be achieved in a timeframe of five years and is developed through annual Activity Plans consistent with the long term strategy. The preparation of the Strategic Plan is a unique opportunity to focus on the main goals of the Association on a medium-term and encourage wider involvement in decision-making within the organisation from support staff (those working in head office, GAV/BVS administrators, Shelters, and other groups), volunteers, trainees, and by any other groups that contribute to the activities of the Association. The aim is to promote integration between all areas of APAV’s operations and their economic, social and political contexts. It is also important as a means to develop team spirit among the staff and encourage their active participation in the future of the organisation.
b.Child Support Institute (CSI)
The Child Support Institute is a private social solidarity institution created in March 1983, by a group of persons from different professional backgrounds — doctors, magistrates, teachers, psychologists, lawyers, sociologists, etc. Its main objective is to contribute to the integral development of the child, through the promotion and defence of the rights of the child.
The CSI aims at stimulating, supporting and disseminating the work and activities of all those who are concerned with looking for new answers to children’s problems in Portugal, as well as cooperating with similar national and international institutions.
According to its statutes, the CSI promotes a) information and awareness-raising programmes; b) studies, seminars and other initiatives that enable a debate about the child in modern societies; c) advisor opinions and position papers on various aspects of the promotion of children’s rights.
The CSI also cooperates with public and private entities in the definition of a national policy for the prevention and protection of the child, and promotes studies and research on the child as a subject of rights.
D.Reporting process at the national level
1.National coordinating structure for reporting under the treaties and participation of departments, institutions and officials at the national, regional and local levels of governance
In the framework of the already mentioned National Committee for Human Rights (NCHR), which is a public administration structure aimed at the improvement of HR in Portugal, namely through reporting and other initiatives, the Portuguese Ministry of Foreign Affairs has invited the Office for Documentation and Comparative Law of the Attorney General (a body that is autonomous and independent from the Government) to assume the double role of coordinating the contributions submitted by the different departments to the reports submitted to the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee against Torture and the Committee on the Rights of the Child, and drafting the final text of the answers to be submitted to these Committees. For this purpose the Office contacts several State Departments and NGOs with the purpose of obtaining data and relevant information on the implementation of the above-mentioned instruments.
The preparation and drafting of the reports to the Committee on the Elimination of Discrimination against Women are undertaken by the Commission for Citizenship and Gender Equality (CIG), whereas the preparation and drafting of the reports to the Committee on the Elimination of Racial Discrimination are undertaken by ACM (High Commissioner for Migrants).
2.Whether reports are made available to or examined by the national legislature prior to submission to the treaty monitoring bodies
A report is, in principle, only submitted to the Parliament prior to its submission to the treaty bodies, in those cases where the Parliament has been asked for a written contribution to the report.
3.The nature of participation of entities outside of government
The Office of the Ombudsman as well as the Attorney General’s Office (which are both independent from the Government) are full and active participants in the elaboration of the core document, as well as of national reports. In the Portuguese case it is one of these independent institutions (the Attorney General’s Office) which is charged within the framework of the National Committee for Human Rights which coordinates their elaboration with the task of drafting the great majority of national reports, thus ensuring the impartiality in the assessment of the country’s situation. The contributions made by these entities are included in the national reports.
NGOs are also consulted for the preparation of reports and the information they provide is often included therein, with a reference to the source.
The national reports have not all been systematically and consistently translated into Portuguese. But they have all been put online on the website of the Office for Documentation and Comparative law.
E.Other related human rights information
1.Follow-up to international conferences
In general terms, all binding and non-binding instruments are taken into account by the competent national authorities in their respective areas of activity. Moreover, that information is disseminated by those authorities, being considered most relevant in raising awareness on the issues underlined and in obtaining contributions regarding both the drafting of legal texts and the adoption of technical or practical solutions to accomplish the highest standards of compliance with the undertaken commitments or addressed recommendations.
In the specific case of the Beijing Declaration and Platform for Action and subsequent commitments in this area (Beijing + 5 and Beijing + 10), every single one of the outcome documents were translated into Portuguese, published in Portugal and widely disseminated.
In the area of ageing, Portugal participated in the Second Review and Appraisal of the implementation of the Madrid International Plan of Action on Ageing (MIPPA), disseminating, in 2012, the respective report to the United Nations Economic Commission for Europe (UNECE) that was adopted on February 2013, during the 51st Session of the Commission for Social Development.
Portugal has identified and evaluated the programmes and initiatives aimed at protecting the rights of older persons. A collection of assessment data was made on the results of different programmes and initiatives, focusing on the analysis and processing of qualitative information conducted from the surveys carried out with the participation of beneficiaries from the National Network of Integrated Continued Care (RNCCI) and with the involvement of older persons themselves. In this particular initiative, there was a concern of developing studies to measure the degree of satisfaction with benefits and services with the participation of professionals from the inpatient units, local coordinating teams and users of the RNCCI, as well as from the Integrated Continued Care Teams (ECCI) and their users.
2.Information on non-discrimination and equality and effective remedies
(a) Non-discrimination and equality — general framework
According to article 15 of the Portuguese Constitution, foreigners, stateless persons, and European citizens who reside in Portugal or find themselves in the country, shall enjoy the same rights and be subject to the same duties as the Portuguese citizens. This principle of national treatment is also enshrined in Article 14 of the Portuguese Civil Code. Foreigners are, however, excluded from certain political rights, from the exercise of public offices not predominantly technical in nature, and from rights that the Constitution and the law reserve exclusively for Portuguese citizens, like belonging to the Armed Forces, which is restricted to nationals. Subject to reciprocity, exceptions are made to foreigners who reside in Portugal regarding the right to vote for, and stand for, election as local councillors, and to citizens of European Union Member States residing in Portugal as regards the right to vote for, and stand for, election as Members of the European Parliament; and to citizens of Portuguese speaking countries residing in Portugal, excluding appointment to the offices of President of the Republic, President of the Assembly of the Republic, Prime Minister and President of any of the supreme courts, and of service in the armed forces and the diplomatic corps.
A structuring principle of the Portuguese legal system is the principle of equality enshrined in article 13 according to which every citizen shall possess the same social dignity and shall be equal before the law and no one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.
Furthermore, article 18 of the Portuguese Constitution states that the Constitution’s provisions with regard to rights, freedoms and guarantees shall be directly applicable to, and binding on, public and private persons and bodies.
Within the framework of economic, social and cultural rights and duties, article 59 of the Portuguese Constitution provides that every worker shall be entitled to his rights regardless of age, sex, race, citizenship, place of origin, religion and political and ideological convictions. This provision refers to remuneration; work organisation, social dignity, personal fulfilment and family life; working conditions; rest and leisure time; assistance in unemployment and work-related accident or occupational illness.
Equality and non-discrimination are also enshrined in the Portuguese Labour Code (Law 7/2009 of 12 February that approves the reform of the Labour Code) in articles 23 to 32 and 85 to 88. These statutes transpose Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; and Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).Public employment and the position of civil servant are also subject to the guarantees of equality and non-discrimination, pursuant to article4 number 1 c) of Law 35/2014, of 20 June.
Finally Law 46/2006 dated 28 August forbids and punishes discrimination on grounds of disability and of an aggravated risk for health.
Under Portuguese Law, direct discrimination is deemed to exist whenever, by reason of social origin, age, sex, sexual orientation, civil status, family situation, genetic heritage, reduced capacity for work, disability, chronic disease, nationality, ethnic origin, religion, political or ideological convictions or trade union membership, a person is subject to less favourable treatment than that given to another person who was or is in a comparable situation.
Indirect discrimination is deemed to exist whenever a provision, criterion or practice, which is apparently neutral, may place people in a disadvantaged position in relation to others, on the grounds of social origin, age, sex, sexual orientation, civil status, family situation, genetic heritage, reduced capacity for work, disability, chronic disease, nationality, ethnic origin, religion, political or ideological convictions or trade union membership, unless the provision, criterion or practice in question is objectively justified for a legitimate purpose and the means to attain that purpose are necessary and appropriate.
Other factors of both direct and indirect discrimination are homeland, language, race, education, economic situation, origin or social status. Orders or instructions based on any of these factors, which cause harm to anyone, are considered discriminatory.
(b) Legal framework and general policies to enhance equality between men and women
The Constitution of the Portuguese Republic enshrines the principle of equality regardless of the sex of the persons (Article 13 — Principle of Equality) and the promotion of equality between men and women as a fundamental task of the State (Article 9 — Fundamental Tasks of the State). Article 109 (Political participation of citizens) also states that direct and active participation of men and women in political life is a condition and fundamental instrument of the consolidation of the democratic system and that the law must promote equality in the exercise of civic and political rights and non-discrimination based on sex in the access to political office”.
The harassment of an employee or a job applicant (defined as undesired conduct related, inter alia, with gender, occurring during the recruitment process, at work or during vocational training, with the purpose or effect of undermining a person’s dignity or creating an intimidating, hostile, degrading, humiliating or destabilising environment) amounts to discrimination.Any form of undesired verbal, non-verbal or physical conduct of a sexual nature, with the above-mentioned purpose or effect is considered to be harassment.
The State is responsible for promoting equal opportunities at work, the reconciliation of professional activity with family life, equality in the exercise of civic and political rights and non-discrimination on the basis of sex in access to political positions.
The Strategic Plan for Growth, Employment and Industrial Development 2013-2020 is a strategic framework that sets the main axes of action to foster sustainable economic growth. The partnership agreement for EU Funds 2014-2020 - Portugal 2020 in compliance with the Portugal 2020 - National Reform Programme, set the key implementation measures and the proper framework to enshrine a cross-cutting development policy based on economic, social, environmental and territorial principles in order to stimulate a cohesive and coherent growth and thus promote employment.
Portugal 2020 European funds’ programming and implementation for 2014-2020 has been systematized in four thematic domains: competitiveness and internationalization; social inclusion and employment; human capital; sustainability and efficient use of resources, notwithstanding other transversal domains as the public administrative reform and the territorialisation of interventions.
When focusing on social inclusion and employment promotion issues it is foreseen that these funds are to be applied to public instruments that intend to encourage more qualified and skilled workers; enable the transition between situations of inactivity or unemployment to employment, as well as to promote effective employment creation; concentrate on specific interventions for target groups or territories where poverty risks and social exclusion are intertwined; promote gender equality, non-discrimination; and assure the prevention of underachievement and early school.
National Plans for Gender Equality
The budget for the promotion of gender equality policies has been considerably reinforced for the period ranging from 2007 to 2013. As already mentioned, an autonomous area of the Structural Funds was specially created to finance the promotion of gender equality under the Operational Programme for the promotion of the Human Potential (POPH), which is one of the three 3 programmes developed under the Portuguese National Strategic Reference Framework (QREN) 2007–2013. Gender Equality is also present in the Agenda for Competitiveness, in particular in the Operational Programme for Competitiveness (POFC).
The action, in the area of Gender Equality, was guided, from 2011 to 2013, by four National Plans:
IV National Plan for Equality — Citizenship, Gender Equality and non-discrimination;
IV National Plan against Domestic Violence;
II National Plan against Human Trafficking;
II Programme of Action to Eliminate Female Genital Mutilation.
All these Plans were subjected to an external and independent evaluation with execution rates between 90% and 100%.
Presently, the main policies in the area of gender equality are set up in the following National Plans in line with the commitments accepted by Portugal following ratification of various international instruments, in particular within the framework of the United Nations Organisation, the Council of Europe, the European Union and the Community of Portuguese Speaking Countries (CPLP).
(a)The V National Plan for Gender Equality, Citizenship and Non Discrimination 2014-2017 (V PNI) foresees the adoption of 70 measures structured around the following seven strategic areas, with goals to be achieved, outcome indicators and the implementation schedule:
(1) Integration of the gender equality perspective in central and local public administration;
(2) Promotion of equality between women and men in public policies;
(2.1) Education, science and culture;
(2.3) Youth and sport;
(2.4) Social inclusion and ageing;
(2.5) Environment, spatial planning and energy;
(3) Economic independence, labour market and organisation of professional, family and personal life;
(4) Sexual orientation and gender identity;
(5) Non-government organisations;
(b)The V National Plan to Prevent and Combat Domestic and Gender-based Violence 2014-2017 (V PNPCVDG) is specifically based on the provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) that Portugal was the first EU country to ratify on 5 February 2013, expanding its implementation scope, until then limited to domestic violence, to other forms of gender-based violence. The V PNPCVDG focuses on five strategic areas (in a total of 55 measures):
1) Prevention, awareness-raising and education;
2) Protection of victims and promotion of their social integration;
3) Intervention with the perpetrators;
4) Training and qualification of professionals;
5) Investigation and monitoring.
(c)The III National Action Plan to Prevent and Eliminate FGM 2014-2017 that foresees the strengthening of intervention in some measures that prove to be structural for the challenge of eradicating FGM, namely through training and capacity building of professionals who, in any way, deal with the problem of FGM; establishing a database of accredited trainers in the area of gender equality, with the necessary knowledge and tools to deal with this theme in their work, as well putting in place a specific multidisciplinary group for replicating training after the programmes developed for healthcare professionals; and working a more incisive way with communities at risk, through a more intense mobilisation of non-governmental organisations, especially migrant associations, whenever possible in a logic of network intervention.
(d)The III National Action Plan to Prevent and Combat Trafficking in Human Beings 2014-2017 (III PNPCTSH) that incorporates the recommendations addressed to Portugal State regarding the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, approved in 2013, by the Committee of the Parties. The III PNPCTSH particularly aims to strengthen the victims’ referral and protection mechanisms; to improve the cooperation and coordination between involved public entities and civil society organisations; and to adapt the national response to the new challenges, related, in particular, to the new forms of trafficking and recruitment.
(e)A National Action Plan to implement the Security Council resolution 1325 “Women, Peace and Security” was adopted in 2009 for the period 2009‑2014. The II National Action Plan is being drafted.
Portugal interprets the Security Council resolution 1325 (2000) in a comprehensive manner, which includes, in addition to armed conflict and humanitarian assistance, the promotion of internal coherence and coordination of national disarmament and arms control policies, public safety and the fight against gender-based violence in defence of human rights, including of women, girls, and children.
A concern of the NAP 1325, with a strong inter-ministerial commitment, is the integration of a three-dimensional perspective — national, european and international, that includes the dimension of the external representation of the State, for example in the context of development cooperation.
The implementation of the NAP 1325 contributes to mainstream gender equality policies in defence, internal security and development cooperation. The NAP develops mechanisms for implementation, monitoring, and evaluation of the objectives and measures set out and realized through 30 specific objectives and activities, which are integrated into five strategic objectives, namely:
1) Increase women’s participation and integrate the gender equality dimension in all phases of peace-building processes;
2) Ensure the training of staff involved in peace building processes;
3) Promote and protect respect for human rights of women, girls and girl children in conflict and post-conflict zones;
4) Deepen and spread knowledge about the theme “women, peace and security”, including training and awareness-raising of decision makers and public opinion;
5) Promote the participation of civil society in the implementation of the Resolution 1325.
There are also several legislative and other improvements on matters pertaining to promotion of gender equality that we would like to highlight:
(a)The lists of candidates for local, national and European Parliament elections must ensure a minimum representation of 33% of each sex in eligible positions, as established in 2006;
(b)The regulations of the Council of Ministers stipulate that draft laws must include a gender impact assessment and use non-discriminatory language. One of the mandatory elements that must accompany legislative projects is an assessment of the project’s impact, when it might affect gender equality;
(c)The fact that abortion was legalised by Law 16/2007, of 17 April 2007, that allows for the voluntary interruption of pregnancy during the first 10 weeks of pregnancy, free of charge at a public hospital. Under this law, in the first 10 weeks of an unwanted pregnancy, women will be able to seek safe abortion services without fear of criminal prosecution;
(d)The conditions of entry, stay and exit of foreigners from Portuguese territory, were regulated by Law no. 23/2007 including a period of reflection for victims of trafficking and an authorization permit for one year;
(e)The strategic guidelines for the State Enterprise Sector approved by the Resolution of the Council of Ministers N. 70/2008 of 22 April, deal with the design and implementation of human resource policies to strengthen motivation; promote the increase of productivity; and develop and implement Plans for Equality, focussed on equal opportunities for men and women and the reconciliation of personal, work, and family life;
(f)measures for mainstreaming a gender perspective into public administration were approved by the Resolution of the Council of Ministers N. 161/2008 of 22d October, that also defined the status, profile and attributions of the Ministerial Gender Equality Advisers and respective teams, with political support to enable them to fully accomplish their functions. The Government also wants to broaden and strengthen the implementation of gender and non-discrimination mainstreaming in municipalities by means of the adoption of municipal plans for equality and to multiply the structures available for this purpose. In order to ensure the institutionalization of Gender Equality Advisers in all the 308 municipalities, the Government is considering the adoption of a similar law for local equality advisers. Simultaneously, a specific funding line was created to stimulate and support the implementation of equality plans in local and central administration as well as public and private sector companies;
(g)a new Labour Code was prepared and negotiated with the social partners, in 2008, containing the legal framework on gender equality in work, employment and vocational training, and on the protection of maternity and paternity. This Code includes new legislation on parental leaves, enlarging the possibilities of sharing the leave between parents and also increasing the length of parental leave for the fathers.
(c) Legal framework and general policies to eliminate racial discrimination
Article 13 of the Constitution of the Portuguese Republic enshrines the principle of equality and non-discrimination and article 5 of the Administrative Procedure Code states the rule that public authorities or public institutions whether national or local are also forbidden to exercise racial discrimination. Complaints to the Ombudsman (Provedor da Justiça) and judicial actions are admissible for this kind of violations.
In addition to the Law related to the extinction of fascist organizations and the prohibition of racist organizations by article 46, par. 4 of the Constitution, constant work is made to discourage racism, racial discrimination and racist organizations. This work also happens in the field of Justice with court decisions namely those referred to in the Portuguese reports to the Committee on the Elimination of Racial Discrimination.
An important change is the new text of article 240 of the CrC introduced by the revision of the Penal Code, which now includes the crime of discrimination based on gender identity. Another important change is that article 246 of the CrC now establishes that an individual convicted for the crime of discrimination (article 240) can be temporarily deprived of his/her active and/or passive electoral capacity.
Article 71 of the Penal Code must also be mentioned. It is related to the determination of the measure of the penalty. This determination is made, within the legally defined limits, depending on the fault of the agent and the need for prevention. According to paragraph 2 of article 71 of the Penal Code, in the determination of the measure of the penalty, the Court takes into account every circumstance which, though not being a part of the crime, goes against the agent or in his benefit, namely the sentiments which were expressed while committing the crime and the aims or the motivation which determined it. The judicial decision must expressly mention the reasons of the measure of the penalty. That is similar to a general aggravating circumstance in the case of a racist crime, in the sense that the racist aim shall be taken into account by the judge in each crime such as defamation, while proffering the ruling.
In the context of new amendments to the Portuguese legislation, mention must be made to the changes to the Civil Procedure Code through Decree-Law 303/2007 dated 24 August, and to the Penal Procedure Code through Law 48/2007 dated 29 August. These changes consecrate the legal review, in revision, in order to give execution to a ruling of an international decision body. The relevant provisions are presently articles 696, al. f and 697, par. 2, al. b of the CCP and 449, par. 1, and al. g. of the CPP.
The Law 27/2008 of 30 June introduced in fact, the suspensive effect of the appeal of any administrative decision in the asylum procedure, which represented a major change over previous laws. This Law was amended by Law 26/2014 of 5 May that entered into force on 4 July 2014, and kept the suspensive effect of the appeal of administrative decisions handed down in the asylum process.
On trafficking in human beings, Decree-Law n. 368/2007, dated 5 November, is of importance. The victims of trafficking are irregular migrants who also have rights. The victim of trafficking, once identified as such, is immediately entitled to a residence permit, provided she/he cooperates in the finding of the facts. The victim also has the right to free legal support, as well as social security and medical support.
Concerning education for non-Portuguese citizens living in the territory, there is no child to whom the benefits of public schooling may be refused due to the irregular situation of her/his parents. The registry of irregular minors is confidential.
In the field of combating discrimination against Roma, the National Strategy for Inclusion of ROMA Communities 2013-2020 (Council of Ministers Resolution 25/2013) has 4 main axis (education, employment and professional training, housing and health) in line with the European Commission communication of 5 April 2011, where Member States were invited to adopt national strategies aimed at improving the economic and social situation of ROMA communities by 2020.
The reform of the Law on Portuguese Nationality through Organic Law n. 2/2006 dated 17 of April, is also to be referred to. In the case of 2nd or 3rd generations, it enables acquisition, under certain requirements, of the Portuguese nationality, thus reducing the number of immigrants and turning Portugal also into a Jus Soli nationality country.
Not addressed exclusively to racially motivated acts but also to other grave forms of discrimination, the changes to the text of article 240 of the Penal Code, introduced by Law nº 59/2007, dated 4 September, enlarge the crime of discrimination to the crime of sexual discrimination, now comprising the crime of gender discrimination as well as the crime of discrimination on the ground of sexual orientation. Any person who is convicted for the crime of article 240 can be temporarily deprived of his active and/or passive electoral capacity, according to Article 246 of the Penal Code.
(d) Discrimination against persons with disabilities
The 2011 Census data shows that 18% of the residents in Portugal aged 5 and over had difficulties in performing at least one daily life activity due to health or age issues. For persons 65 years old or above this percentage exceeds 50%. There is a greater incidence on women than on men.
Persons who experience such difficulties have low education levels. The majority has only attended the first cycle of basic education, or has no formal education, category in which there is a majority of women. In 2011, the illiteracy rate of the population with difficulties in performing daily life activities was higher than the rate for the total population.
The majority of this population group is inactive (78%), and only 18% is employed. The main means of living for those aged over 15 is their pension (66%).
According to data of the 2011 Census, the unemployment rate among persons with disabilities is around 19%.
The situation of persons with disabilities is monitored, inter alia, by the already mentioned National Institute for Rehabilitation (INR), in charge of promoting integrated policies aimed at ensuring equal opportunities for all citizens and to fight discrimination against persons with disabilities, in partnership with other public entities and NGOs. Its mission is to plan, execute and coordinate national policies for the promotion of the rights of persons with disabilities.
In 2013 the Disability Commission was created, with the mission of promoting the participation and intervention of disability NGOs in all matters of interest for persons with disabilities. This Commission is composed by the Government member who oversees the area of rehabilitation and disability, by the chairman of National Institute for Rehabilitation and by one representative of NGOS of the sensorial, intellectual and motor disability areas.
In legal terms, the equality of all citizens is a fundamental right acknowledged by the Constitution of the Portuguese Republic in its Art. 13, paragraph 1.
Based on the recognition of the dignity, the integrity and the freedom of persons with disabilities, the Portuguese Parliament approved Law 38/2004, dated 18 of August, which sets the general framework for the prevention, habilitation, rehabilitation and participation of persons with disabilities.
In order to ensure a cross-cutting approach to policies, programmes, and measures to benefit persons with disabilities, the Government approved the 1st Plan of Action for the Integration of Persons with Disabilities or Impairments (PAIPDI 2006–2009). In December 2010, the National Strategy for Persons with Disabilities (2011-2013) was approved, based on the Convention on the Rights of Persons with Disabilities and as a follow-up to the 1st Plan of Action. This Strategy 2011-2013 (ENDEF) included several measures to promote the rights of persons with disabilities, including the rights of children with disabilities, in order to combat stereotypes and discrimination. It was a cross-cutting and multidisciplinary strategy, involving Portuguese Public Administration bodies and representatives of civil society, namely persons with disabilities, their families and several associations. The Strategy foresaw the implementation of 133 measures in 5 key areas: multiple discrimination; justice and exercise of rights; autonomy and quality of life; accessibility and universal design; modernisation of administrative and information systems. The draft National Strategy for Persons with Disabilities 2014-2020 was widely discussed with different bodies of public administration, NGO’s, experts and it was proposed for Governmental approval, which is expected in a short period of time.
In 2007, the National Plan for the Promotion of the Accessibilities (PNPA), was approved with a number of measures aimed at improving the quality of life of all citizens, and in particular the exercise of their rights by persons with special needs. The objective of The National Plan of Promotion of the Accessibilities is to remove obstacles and barriers faced by the citizens through an integrated and coordinated policy to promote accessibility in Portugal up to 2015. The application of the PNPA considers two phases. For the period up to 2010 the measures and concrete actions were defined, indicating the respective terms of realization and the promoters. At the end of the first phase an assessment of the Plan was published in the website of the National Institute for Rehabilitation. The second phase 2014-2020 has already been discussed and is waiting for Governmental approval.
In spite of these measures, in many spheres of the day-to-day life, the right to equality and non-discrimination is not realised and citizens with disabilities continue to face discrimination in their daily lives: for example, in the work place, at school, in the restriction of access to public and private goods and services, in transportation, in mobility, and in the celebration of contracts and insurances.
In the field of education and teaching, most of the measures adopted to combat any type of discrimination are intended for all pupils and students who attend the Portuguese educational system, regardless of their origin or sexual orientation.
The Portuguese education system does not foresee the constitution of classes on grounds of origin, belonging or culture. In fact, it is organized so that the schools, within their autonomy, mobilize resources and develop strategies in order to ensure learning success to all students, irrespective of, and beyond their differences.
Finally, in the framework of basic schooling children have civic training courses every year.