7 November 2018
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Portugal on its implementation of the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Presenting the report, José Luís Lopes da Mota, Judge at the Supreme Court of Justice of Portugal, noted that even though Portugal had ratified the Convention in 2014, its commitment to eradicate enforced disappearances dated back much earlier. Portugal utterly rejected any practice of enforced disappearances. In reaction to the excesses and abuses of the past, the 1976 Constitution and legislation provided for strict limits to the performance of the State’s functions, in particular with regard to the activities of the military and police forces. The actions and omissions of the State, its officials or agents, may generate civil liability and the duty to repair the damages. State officials and agents were subject to disciplinary measures and sanctions in case of infraction, further to criminal liability in case of offences of that nature, for example, the involvement in a case of enforced disappearance. Subordinates were safeguarded from the obligation to carry out illegal orders, in particular if they led to the commission of a crime, in which case the duty of obedience ceased. Portugal had extradition agreements with countries that were not yet parties to the Convention. It did not extradite persons if they could be subject to the death penalty or life imprisonment, or when the proceedings did not meet or respect the requirements laid down in international instruments.
In the ensuing discussion, Committee Experts observed that as enforced disappearance was a crime against humanity, the sentences envisaged by Portugal were not stiff enough, with the minimum sentence set at 12 years. They further noted that the country’s law needed to be reviewed in order to extend the definition of victims to encompass close relatives, lawyers and others with legitimate interest. The Experts also inquired about the status of the Convention in national law, the responsibility of non-State agents for committing enforced disappearance, exemption from the statute of limitation, counting of the term of limitation, international judicial cooperation and extradition, composition of the National Human Rights Commission, consultations with non-governmental organizations, the right of subordinates to question their superiors’ orders, the military justice system, and universal jurisdiction. Other issues that were raised included policy vis-à-vis migrants and refugees, treatment of prisoners and detainees, registration of deprivation of liberty, notion of particularly vulnerable victims, the right to access information about detainees and the case file, specific training on human rights law for members of the judiciary, police and military, the national preventive mechanism, compensation, and guarantees of non-repetition.
In concluding remarks, Horacio Ravenna, Committee Expert and Co-Rapporteur for Portugal, thanked the delegation for their answers, noting general satisfaction with the dialogue. Issues raised included Portugal incorporating in its legislation a standalone crime of enforced disappearance; this was the path that the State could take and the Committee would reflect this.
Emmanuel Decaux, Committee Expert and Co-Rapporteur for Portugal, noted Portugal’s deep commitment to human rights and thanked the delegation for a very frank and rigorous dialogue. He expressed hope that the follow-up would be as successful as the dialogue itself. Nevertheless, the State party needed to strengthen its legal framework on enforced disappearance when committed or enabled by State actors.
On his part, Mr. Lopes da Mota thanked the Committee Experts for their questions and comments. The dialogue was a precious opportunity to present the measures adopted by Portugal to protect all persons from enforced disappearance.
Suela Janina, Committee Chairperson, appreciated the active cooperation that the State party had exhibited in the entire process of review. She thanked the delegation for its positive and professional engagement with the Committee.
The delegation of Portugal included representatives of the Ministry of Foreign Affairs, the Ministry of National Defence, the Ministry of Internal Affairs, the Ministry of Justice, the Supreme Court of Justice, and the Permanent Mission of Portugal to the United Nations Office at Geneva.
The Committee will next meet in public on Friday, 9 November, at 10 a.m. to hold a follow-up dialogue with Mexico (CED/C/MEX/1).
The initial report of Portugal can be read here: CED/C/PRT/1.
Presentation of the Report
JOSÉ LUÍS LOPES DA MOTA, Judge at the Supreme Court of Justice of Portugal, stressed that the State party’s report had been prepared by the National Human Rights Commission. The Government attributed paramount importance to the participation of civil society in the promotion and protection of human rights. Accordingly, non-governmental organizations were invited to take part in the work of the National Human Rights Commission. Even though Portugal had ratified the Convention in 2014, the Portuguese State’s commitment to eradicate enforced disappearances dated back much earlier. Portugal was a young and consolidated democracy, which was structured and continuously evolving in the framework of the universal system for the protection of human rights. Portugal utterly rejected any practice of enforced disappearances. It was party to all human rights treaties adopted in the framework of the United Nations, a member of the Council of Europe, and a State party to the European Convention on Human Rights. Portugal was also a Member State of the European Union, whose action was guided by the Charter of Fundamental Rights that was legally binding throughout the European Union.
The legal and constitutional order of Portugal was not compatible with violations of human dignity, such as those that the practice of enforced disappearance involved. Portugal was a republic founded on the dignity of the human person. It was a democratic State governed by the rule of law and based on the separation of powers, which guaranteed the independence and impartiality of courts and of criminal investigation. In reaction to the excesses and abuses of the past, the 1976 Constitution and law provided for strict limits to the performance of the State’s functions, in particular concerning the activities of the military and police forces. The activity of the armed forces was strictly limited and conditioned; it should always be carried out with respect for the constitutional order. Security forces, officers, prison guards or any other person working in prison or other detention facilities periodically participated in mandatory training in the field of human rights. The actions and omissions of the State, its officials or agents, may generate civil liability and the duty to repair the damages. State officials and agents were subject to disciplinary measures and sanctions in case of infraction, further to criminal liability in case of offences of that nature, for example, the involvement in a case of enforced disappearance.
Portugal had a long-standing humanist tradition; it had been a pioneer in abolishing the death penalty more than 150 years ago. The authorities emphasized the importance of re-socialization as the purpose of a punishment. The deprivation of liberty, by arrest or imprisonment, had a specific purpose and scope strictly framed in the fundamental law. The Portuguese Constitution enshrined a broad catalogue of fundamental rights, including the fundamental right to life, physical and moral integrity, protection from torture and degrading treatment, freedom and security, personal identity, personality development and protection against any form of discrimination. The first guarantee against enforced disappearances resulted, thus, from the constitutional consecration of the rights that the practice of enforced disappearance affected, and the protection conferred to them. Moreover, the Constitution was open to international law, which it received as part of national law. Several provisions of the Convention could be applied directly and invoked before the competent authorities. Portugal criminalized enforced disappearance in the context of a widespread or systematic attack, adapting domestic legislation to the Rome Statute. It was a crime of public nature, of ex officio investigation, and not subject to any statute of limitation. The criminal law allowed for the prosecution and severe punishment of that crime.
Enforced disappearance as defined by the Convention constituted a complex and multiple violation of rights and it fell within the type of various autonomous crimes. Portugal made reference to, among others, illegal restraint, kidnapping, human trafficking, torture or degrading treatment, or denial of justice. Subordinates were safeguarded from the obligation to carry out illegal orders, in particular if they led to the commission of a crime, in which case the duty of obedience ceased. Portugal had extradition agreements with countries that were not yet parties to the Convention. It did not extradite persons if they could be subject to the death penalty or life imprisonment, or when the proceedings did not meet or respect the requirements laid down in international instruments. Portugal’s Statute of the Victim of 2015 granted particular attention to the most vulnerable victims, ensuring their protection, prevention from secondary victimization, restitution and compensation, rehabilitation and the guarantee of non-repetition.
Questions by the Committee Experts
HORACIO RAVENNA, Committee Expert and Co-Rapporteur for Portugal, inquired about how the responsibility of non-State agents, for committing enforced disappearance, with the acquiescence of the State, was dealt with. He reminded that the Convention established the obligation of States parties to pass laws that clearly defined enforced disappearance as a standalone crime.
Moving on to the responsibility of superiors, the report said a subordinate would have to submit his refusal to follow an order related to enforced disappearance in writing and in advance, but that was virtually impossible. Mr. Ravenna reminded that the Convention called for a link between the material perpetrator of the crime and the ideological perpetrator who gave the order. That was where there was a problem that needed to be sorted out. What was the status of the Convention in national law, as it might be difficult to apply the Convention if it was not backed up with prior national legislation?
As enforced disappearance was a crime against humanity, the sentences envisaged by Portugal – 12 to 25 years - were not stiff enough. Did the statute of limitation consider enforced disappearance as a continuing crime? How was the term of limitation counted?
Turning to extraterritorial (universal) jurisdiction and extradition, it seemed that extradition was not part of criminal jurisdiction. Portugal’s laws needed to be reviewed in order to extend the definition of victims to encompass close relatives, lawyers and others with legitimate interest.
EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Portugal, commended the State party’s punctuality in the submission of the report and replies to the list of issues. What was the composition of the National Human Rights Commission, which drew up the report following consultations, and in what way did it consult with non-governmental organizations? It was unfortunate that civil society did not present a shadow report. How could non-governmental organizations better participate in the dialogue with the Committee?
Were the autonomous regions of Madeira and Azores fully bound by the Convention, and did people in those territories, including migrants, enjoy the same rights and safeguards? How could Portugal fully implement the Convention without a law that transposed it into the domestic legal framework and in the absence of a standalone crime of enforced disappearance? Did the State party plan to use article 3 of the Convention to protect all persons from enforced disappearance? It was important to have a clear definition of enforced disappearance.
The range of penalties in Portugal for the crime of enforced disappearance, which was a crime against humanity, was from 12 to 15 years of imprisonment. Portugal should consider a different range of penalties. Were all crimes related to enforced disappearance exempt from the statute of limitation?
Another Expert inquired about the right of subordinates to question their superiors’ orders through a mechanism that would not force them to contact the authors of those orders. How did international judicial cooperation unfold given that Portugal did not permit extradition when a person could face the death penalty or life imprisonment?
Replies by the Delegation
The delegation reminded that the National Human Rights Commission had been created in 2010 reflecting the commitment of all Government members to promote and protect human rights. It was chaired by the Ministry of Foreign Affairs. The Office of the Ombudsperson fruitfully and intensively worked with the National Human Rights Commission. Any representative of civil society could request to be included in the mailing list of the Commission. The Government was disappointed that there had been no shadow report by civil society. Nevertheless, the Government had held a consultation with civil society prior to submitting its report to the Committee.
JOSÉ LUÍS LOPES DA MOTA, Judge at the Supreme Court of Justice of Portugal, said that there was no problem with the implementation of the Convention in the autonomous regions of Madeira and Azores. International treaties were situated between ordinary laws and the Constitution. There was no international judicial cooperation when a person could be subjected to the death penalty or life imprisonment. Portugal would only extradite if those penalties were amended. The authorities had concluded that it was not necessary to have enforced disappearance as a standalone crime because aggravating and mitigating circumstances were already in place. The term of limitation could be extended to 17 years.
The head of the delegation said it was sometimes difficult for Portugal to implement international judicial cooperation due to the fact that Portugal was a party to most of the international treaties. Sometimes Portugal created new categories of crimes. The definition of victim was covered in the national law.
Moving on to the definition of enforced disappearance, the delegation reminded that Portugal criminalized it as a crime against humanity. The scope of enforced disappearance would be extended to individuals who worked without the acquiescence of the State. In case of systematic enforced disappearances, no statute of limitation applied. But in individual cases of enforced disappearance without the authorization of the State, the statute of limitation ranged from 10 to 15 years.
There was a range of sentences based on the degree of participation and intentionality. The crime of enforced disappearance was a continuing crime, which meant that the term of limitation only started running when the commission of the crime ended.
As for the position of the Convention in Portugal’s legal order, the delegation said that it was true that international conventions and treaties were subordinate to the Constitution. Certain provisions of the Convention, however, were directly applicable and they could be directly invoked by courts. The domestic legal framework already foresaw a number of measures and rules to safeguard the State’s obligations under the Convention, which was why it was not necessary to transpose the Convention through a separate law.
Article 18 of the Constitution foresaw a system of fundamental rights and freedoms which could only be restricted under the circumstances listed in the Constitution. The principle of proportionality could not be invoked so that Portugal could tackle a case of enforced disappearance. Restrictions on personal liberty were only possible in the context of a criminal investigation.
Subordinates could reject superiors’ orders when they could lead to a violation of human rights. Superiors in the armed forces were responsible for their own acts and acts of those under their control. Subordinates had to raise their doubts about the legality of the order, but in cases of emergency it might be difficult to obtain an answer. Subordinates might report to someone else in the chain of order. The Military Justice Code stipulated the immediate suspension of functions in case of the involvement of military personnel in enforced disappearances.
On extraterritorial (universal) jurisdiction, the delegation clarified that Portuguese jurisdiction was also exercised on Portuguese ships and airplanes. All international mechanisms for mutual assistance did permit for the application of Portuguese criminal law. The Criminal Code stipulated that Portugal could exercise its extraterritorial jurisdiction if the victim or perpetrator abroad was Portuguese.
Follow-up Questions by the Committee Experts
HORACIO RAVENNA, Committee Expert and Co-Rapporteur for Portugal, wanted to clarify whether military justice was administrative. He stressed that the principle of due obedience could not be imposed if the order led to the commission of a crime.
EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Portugal, reminded that the Working Group on enforced disappearances had conducted a study on good laws and it had concluded that countries should go beyond the notion that enforced disappearance was a complex crime with multiple manifestations, and that they should ensure effective protection from enforced disappearances.
Replies by the Delegation
JOSÉ LUÍS LOPES DA MOTA, Judge at the Supreme Court of Justice of Portugal, clarified that Portugal had reformed its military justice system in 2003 and 2004, which was limited to very specific crimes of a strictly military nature. It was the competence of ordinary criminal courts to try the crimes committed by the military. Military judges participated in the proceedings of ordinary courts.
A number of articles of the Convention could be directly applied in Portuguese law. People could also claim in front of courts that they were victims under the provisions of the Convention. As for universal jurisdiction, Portugal recognized that principle in certain types of crimes. In other cases, it applied the principles of active and passive nationality. There were no practical reasons for pursuing universal jurisdiction, Mr. Lopes da Mota said.
The head of the delegation reminded that Portugal had not had any cases of enforced disappearance since 1974. Portuguese modern laws were often a reaction to the dictatorship. Portugal had never refused international judicial cooperation, but it demanded strict assurances and it applied the principle of reciprocity.
Military courts were established at times of war and they continued to function until they had dealt with all outstanding issues. Military judges and advisors took part in the work of civilian courts. Military judges were always generals in rank, but not in active service to guarantee their impartiality, the delegation explained.
The legal definition of abduction in the Criminal Law was in line with the Convention. If the perpetrator of the crime was someone in the position of authority, that crime had aggravating circumstances. The definition was wide enough to correspond to the definition of enforced disappearance in the Convention.
Questions by the Committee Experts
HORACIO RAVENNA, Committee Expert and Co-Rapporteur for Portugal, asked about the State party’s special agreements with forensic teams within the framework of bilateral cooperation. What was the country’s policy vis-à-vis migrants and when could refugee status be denied?
With respect to the treatment of prisoners and detainees, how did the Council of Europe’s Committee for the Prevention of Torture work in the State party? Were there any restrictions on providing information about the situation of detainees to family members and relatives?
The Criminal Code contained the notion of particularly vulnerable victims. What did that notion entail? The police used a genetic database to search for missing persons. Was that database open to all interested parties?
EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Portugal, inquired about double jeopardy when the crime of enforced disappearance was not classified as a crime against humanity. What was the national preventive mechanism that checked on the crime of enforced disappearance? Were there sanctions for the failure of recording deprivation of liberty?
Mr. Decaux further asked about people having a legitimate interest in accessing information on enforced disappearance. He stressed that there should be specific training on human rights law for prison guards, judges, and military personnel. Finally, Mr. Decaux inquired about reparation to victims and their close family members and about guarantees of non-repetition.
Replies by the Delegation
The delegation clarified that Portugal could provide very broad international judicial cooperation, based on bilateral and multilateral agreements. Extradition could be refused if the person in question could be subject to enforced disappearance. The Ministry of Justice decided whether it accepted requests for extradition after it had analysed the corresponding crimes in Portugal’s criminal justice system.
For many decades, Portugal had adopted a very humanist approach to refugees. Granting of refugee status was based on an individual’s request, which was then analysed and decided on in 60 days. Portugal had complied with all its international obligations in that area and in 2019 it would accept about 1,000 individuals coming from Egypt and Turkey. Portugal was deeply committed to the resettlement mechanism within the European Union.
Portugal had a very cooperative relationship with the Council of Europe’s Committee for the Prevention of Torture. The Committee visited Portugal frequently. The national focal point, which was the Ministry of Foreign Affairs, was contacted whenever the Committee wanted to visit the country. The Committee visited all places of detention, including psychiatric hospitals, and was granted free access without prior announcement. Members of the Committee were invited to establish contact with detainees themselves and to access all relevant registries and documents.
The only condition for a person to acquire information about detainees and the case file was a proof of legitimate interest. The concept of legitimate interest was gauged on a case-by-case basis. The detainees were always entitled to contact their family and lawyers. A 24-hour team was always available to provide information about detainees’ whereabouts to relatives and anyone else who could demonstrate legitimate interest. Detained persons could also access psycho-medical support, whereas those seeking international protection status had the right to access any civil society association.
As for the notion of particularly vulnerable victims, the delegation explained that it encompassed victims of violent crimes and children who received protection from re-victimization and compensation.
The criminal police maintained a computerized database on missing persons. The National Forensic Institute also maintained a DNA database, and if a particular inquiry was underway, the police could use that database. The criminal police undertook inquiry into the search for disappeared persons, whereas the public prosecution was overall responsible for the whole process.
Financial resources were not always made available in an ideal fashion and the activities of the Office of Ombudsperson were limited. The Office could perform its basic mandate even at times of austerity.
Responding to the Experts’ questions about sanctions for the failure of recording deprivation of liberty, the delegation explained that the law defined a crime of denial of justice and failure to take action. All civil servants who tried to obstruct or prevent the normal handling of the case could be prosecuted. The law foresaw criminal and administrative liability for such acts. In addition, security services had to draw up an individual report on each arrest.
Members of the judiciary received training from the Judicial Training College, which addressed all United Nations and Council of Europe instruments. The criminal police and members of the armed forces received compulsory and ongoing training, including on human rights and relevant international instruments. Civil servants also received training on human rights. The public security forces were one of the first entities in the country to provide training in human rights in 1984. Training sessions were organized in cooperation with several Portuguese universities and with the Office of the Ombudsperson.
Portugal was committed to providing guarantees of non-repetition, fighting impunity, and providing reparation. Victims could be accommodated in temporary shelters and receive relevant support services. Compensation measures could be provided even if criminal proceedings were still ongoing. The Criminal Procedures Code also stipulated ex officio compensation for moral and material damages, including for the loss of income and earnings. Guarantees of non-repetition were included in witness protection programmes.
Follow-up Questions by the Committee Experts
HORACIO RAVENNA, Committee Expert and Co-Rapporteur for Portugal, wanted to clarify what happened with refugees whose refugee status had been denied. Mr. Ravenna pointed out that a balance needed to be struck between the notion of legitimate interest and detainees’ right to privacy.
Replies by the Delegation
The Aliens and Border Service needed to examine all relevant circumstances in granting refugee status, such as the risk of discrimination and persecution. If that risk was real, then individuals could receive at least international protection, if not asylum. There were administrative and judicial mechanisms in place to allow asylum seekers to challenge the decision of Portuguese authorities.
Guided by the principle of non-refoulement, Portuguese law stipulated that no individual could be expelled from Portugal if there was evidence that he or she could be subject to inhumane or degrading treatment in the country of origin. Denial of refugee status was the measure of last resort. However, the State could help asylum seekers file an asylum claim in a third country.
JOSÉ LUÍS LOPES DA MOTA, Judge at the Supreme Court of Justice of Portugal, recognized the potential conflict between the right to information and the right to privacy of detainees. The data protection system in Portugal was guided by the European Union directive on personal data protection. The system on the one hand tried to facilitate access to information, but on the other hand established strict rules on the preservation of privacy.
On non-refoulement, Mr. Lopes da Mota cited a case of extradition of a person suspected of terrorism. That person belonged to a political group that had challenged the authorities in his country of origin. The person was wanted on an international arrest warrant for the purpose of extradition via Interpol. Finally, Portugal refused to extradite him because he held a refugee status in another European Union country.
HORACIO RAVENNA, Committee Expert and Co-Rapporteur for Portugal, thanked the delegation for their answers, noting general satisfaction with the dialogue. There was always room for improvement. Issues raised included Portugal incorporating in its legislation a standalone crime of enforced disappearance; this was the path that the State could take and the Committee would reflect this.
EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Portugal, noted Portugal’s deep commitment to human rights and thanked the delegation for a very frank and rigorous dialogue. He expressed hope that the follow-up would be as successful as the dialogue itself. Mr. Decaux noted that Portuguese law was excellent in protecting human rights. There was a substantive legal framework on enforced disappearance when committed by private actors (human trafficking and abduction). Nevertheless, the State party needed to strengthen its legal framework on enforced disappearance when committed or enabled by State actors.
JOSÉ LUÍS LOPES DA MOTA, Judge at the Supreme Court of Justice of Portugal, thanked the Committee Experts for their questions and comments. The dialogue was a precious opportunity to present the measures adopted by Portugal to protect all persons from enforced disappearance. The discussion held with the Committee would surely enable Portugal to fully implement the Convention. Mr. Lopes da Mota expressed conviction that the Committee’s concluding observations would reflect the constructive nature of the dialogue.
SUELA JANINA, Committee Chairperson, appreciated the active cooperation that the State party had exhibited in the entire process of review. She thanked the delegation for its positive and professional engagement with the Committee.
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