3. State Party ReportsPortugal[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40](...) II. DEFINITION OF THE CHILD 14. In Portugal, the age of majority for civil purposes is now 18 (Civil Code, art. 122). This age was fixed as part of the reform introduced by Decree-Law No. 496/77 of 25 November 1977, which brought the Civil Code into line with the principles of the 1976 Constitution, published following the democratization of the country after 1974. Until then, the age of majority had been 21. It is also at 18 years of age that citizens acquire electoral capacity, both in the active and passive sense. This capacity, which was conferred on young persons by Decree-Law No. 621-A/74 of 15 November 1974, is enshrined in the 1976 Constitution (art. 48, para. 2) and also in article 49, paragraph 1, of the Constitution currently in force. (...) 20. The age of criminal responsibility is 16; this is also the age at which young people may be imprisoned or sentenced to deprivation of liberty. These points will be dealt with in chapter VIII, section B, which deals with children in conflict with the law. There is no age-limit for children testifying in court. However, there are specific regulations governing the questioning of children below 16 years of age (Code of Penal Procedure, art. 349). They may be questioned only by the presiding judge, and other judges or jurors, the government procurator or other lawyers are required to ask the presiding judge to formulate any additional questions they may need to put to the child. (...) IV. CIVIL RIGHTS AND FREEDOMS (...) H. Right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a)) 95. In Portugal, the death penalty cannot be imposed in any circumstances (Constitution, art. 24). This rule is based on the inviolable nature of human life under Portuguese law, as already mentioned (para. 35 above). The Constitution also prohibits punishment or security measures involving deprivation or restriction of freedom for life or for an unlimited or indefinite term. It adds that persons who are sentenced to a penalty or security measure involving deprivation of freedom continue to enjoy fundamental rights, subject only to the limitations that are inherent in the conviction and the requirements of its enforcement (art. 30). 96. Torture and cruel, inhuman or degrading treatment or punishment are banned by the Constitution (art. 25, para. 2), which is based on the inviolable nature of the moral and physical integrity of the individual, recognized in paragraph 1 of the same article. The prohibition of such treatment or punishment thus includes that which may affect a person's physical and moral integrity. As with the right to life, personal integrity is not affected by the declaration of a state of siege or emergency (art. 19, para. 6, of the Constitution). Reaffirming the provision of article 32, paragraph 6, of the Constitution, article 126 of the Code of Penal Procedure invalidates any evidence obtained by torture or force or, generally speaking, by any offence against the physical or moral integrity of the individual. 97. Portugal has ratified the International Covenant on Civil and Political Rights, the United Nations 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 and also the European Convention on Human Rights. With regard to the Covenant and the latter Convention, it should be pointed out that Portugal recognizes the individual's right to bring a complaint. (...) VIII. SPECIAL PROTECTION MEASURES (...) B. Children in conflict with the law 1. Administration of juvenile justice (art. 40) 181. The administration of justice in respect of children in conflict with criminal law is governed by different principles according to whether they are under or over 16 years of age. Generally speaking, however, it can be said that the child's age is always borne in mind and that an effort is made to ensure - exclusively in the case of children under 16 and predominantly in the case of those over 16 - that the measures taken have an educational effect and contribute to social reintegration. 182. Under Portuguese law, minors under the age of 16 are exempt from criminal liability. If they commit an offence which, were it perpetrated by an adult, would be treated as a crime, they are subject to the provisions of the Act on the Organization of Care for Minors (OTM), the current version of which was approved by Decree-Law No. 314/78 of 27 October 1978. This enactment provides for the application of supervisory measures of protection, assistance and education, under similar conditions, to children (under the age of 16) who have committed criminal offences and those who engage in begging, vagrancy, prostitution, debauchery, abuse of alcoholic beverages or illicit use of narcotics, who are found to have serious difficulties in adapting to normal social life, who are victims of ill-treatment or who, through being abandoned or lacking assistance, are in situations that can present a risk to their health, security, education or morals. The number of children arraigned for criminal offences has decreased in the last decade, dropping from 2,185 in 1981 to 1,352 in 1991. These numbers represented, respectively, 75.1 per cent and 55.7 per cent of juvenile court hearings. 183. The non-retroactivity of criminal law is guaranteed by the Constitution. However, this principle does not automatically apply to juvenile cases, which are guided by principles different from those governing criminal law. Given that the purpose of official action is to protect and educate the minor, the offence committed is not of great importance and can be expected to be taken into account only as a "symptom" of maladjustment. More important than the offence committed are the child's living conditions and family situation. For this reason, official action will be possible if the minor's behaviour reveals that he is suffering from maladjustment or lack of assistance that may be at the origin of the court hearing. 184. Since children under the age of 16 can never be considered "guilty" of offences they may commit, it is clearly meaningless to speak of "presumption of innocence". Notwithstanding, the courts seek to form a clear idea of the offence committed by the child, in particular by questioning him and arranging for an investigation to be carried out. This necessarily involves checking the accuracy of the facts as recorded. In any case, factual evidence is not considered to be of decisive importance since it will not determine the court's decision, which will be reached in the light of the child's living conditions and family situation. 185. The right of children under the age of 16 to be informed promptly, either directly or by the persons exercising parental authority, of the facts leading to official action (as has been said, one cannot speak of "charges") is not expressly provided for. In fact, however, this information is generally provided. The OTM lays down that a child who is found by a law officer in a situation likely to result in judicial action may be brought forthwith before a judge, who will listen to him and inform him. Moreover, procedural steps include questioning the child and taking statements from parents or persons with custody of the child. Welfare officers, on commencing the investigation, inform children and/or the parents of the acts ascribed to them. There is no legal provision for children to receive legal aid since, not being considered "guilty", they are not required to present a "defence". 186. Cases involving children over the age of 12 are entrusted to a judicial organ. In the cities, there are specialized juvenile courts. In the rest of the country, jurisdiction over children is exercised by the district courts. The juvenile courts are courts of specialized jurisdiction, thus enjoying the independence specific to the judiciary. They usually operate as single-magistrate courts. However, in more serious cases, they have a collegiate structure, being composed of a professional magistrate and two lay magistrates chosen by the municipal authorities from among members of the electorate with responsibility for assisting, training and educating minors. As for cases involving children under the age of 12, most of these are entrusted nowadays to protection boards, to which we have already referred and which are discussed in greater detail below (see paras. 193-195). These boards, although socio-administrative in nature, enjoy independence in the exercise of their functions, which they discharge in accordance with the law taking into account the best interests of the minor and not being subject in their decisions to orders or instructions from any authority. 187. The purpose of court action is to defend the rights and interests of children. The law expressly entrusts to the representative of the government procurator (known as the "curador de menores") the task of defending the rights and interests of minors. However, for the purposes of appeal, the law already provides at this stage for recourse to a lawyer. At the juvenile court sessions, especially hearings concerning placement in "youth care centres", the parents of the minor or the person with responsibility for the minor are required to appear. In the specific case of protection boards, the parents or legal representative of the child, together with a lawyer of their choosing, are allowed to attend the sessions, and the minor is also able to be accompanied by a person who enjoys his confidence. 188. The judicial proceedings are very straightforward and informal. The inquisitorial principle prevails during the hearing, with any evidence being admitted that the judge considers necessary and that he orders or allows to be produced, not only to determine the facts, but also, and especially, in order to decide on the measures to be adopted to ensure optimum protection of the rights and interests of the minor. The situation is similar in respect of hearings organized by the protection boards, which take the steps that they themselves consider necessary and suitable in order to determine the facts of the situation and reach a decision. |
|
189. Court decisions applying, modifying or terminating guardianship arrangements can always be appealed against. Appeals are heard by courts of second instance and may be lodged by the government procurator and the parents or duly authorized legal representative of the minor. They may be assisted by a lawyer, as has already been noted. As regards the protection boards, their examination of a case may at any time be opposed by those vested with parental authority. When this happens, the board either does not proceed with the case or ceases to do so and reports the situation to the court, which becomes competent to examine it. 190. The OTM does not make provision for children who do not understand Portuguese to be assisted by an interpreter. However, in situations not expressly provided for, it allows the application of such provisions of the Code of Penal Procedure as do not conflict with the special role of the guardianship authority. This is certainly the case in respect of the rule mentioned below under which every accused person has the right to such assistance. 191. In order to ensure that the child's right to privacy is respected, guardianship legislation declares files to be secret, with access restricted to a limited number of persons and subject to specific conditions. Breach of the secrecy of files is a crime of disobedience, punishable by the Penal Code. Furthermore, court hearings are held in camera and are open only to persons expressly authorized to attend by the court. 192. Strictly speaking, there is no age-limit below which children are presumed not to have legal capacity to infringe criminal law. There exists, however, as has been said, an age (16 years) below which children are considered not to be criminally liable for any crimes they may commit. That being said, when a child commits an offence, "guardianship measures" may be set in motion, regardless of the child's age. 193. In the case of children under the age of 12, these measures may be taken without instituting legal proceedings, by way of the protection boards. These boards were introduced into the country, in their earliest form, by the OTM reform of 1978. This enactment assigned to bodies set up in observation and social welfare centres (see below), composed of the centre's director and psychologist, a representative of the Ministry of Education and another of the Ministry of Social Affairs (now the Ministry of Employment and Social Security), and also by a "curador de menores" (see para. 187), responsibility for applying the measures laid down in the guardianship legislation for children under the age of 12 who show signs of social maladjustment or commit offences. 194. These provisions were reformulated by Decree-Law No. 189/91 of 17 May 1991 which, while maintaining the boards set up in 1978, provides alongside them for boards of a new kind, to be established in all the judicial districts of the country (at the present time there are nearly 30 such boards in operation). These "new" boards have a wider membership which includes an official of the government procurator's office, a representative of the municipality, a psychologist and representatives of public services responsible for education, social security, health and leisure activities for young people, private welfare organizations, parents' associations and the police. The boards may also have other persons among their members, as required by local circumstances. 195. The boards are required to examine cases of children under the age of 12 found to be in situations considered in the OTM to be a cause for juvenile court proceedings. However, in the case of minors subjected to ill-treatment or in danger, their competence extends up to the age of 18. They can apply the same measures as the courts (mentioned in the following paragraph), except for ordering the placement of minors in youth care centres. When they consider that such is the appropriate decision to be taken, they refer the file to the court, which assumes jurisdiction. The examination of cases by the boards, of whatever type, is subject to the express consent of those invested with parental authority, in accordance with the constitutional rule, already mentioned several times, under which parents have "the right and the duty to bring up their children", and which does not envisage the separation of parents from children except "when parents do not fulfil their basic duties towards the children, and then only by virtue of a court decision". In the event of consent not being given, the only possible course remaining is action at law. 196. Legal provision is made for a variety of guardianship measures, among which the court or board freely chooses the one most appropriate to each case. In this set of measures, placement in youth care centres (see para. 204 below) is mentioned only as a last resort, thus revealing the legislator's preference for the taking of other measures, especially of a non-institutional kind. Besides admonishment and entrustment to parents, guardians or persons with custody of the child, these measures include non-custodial supervision ("educational accompaniment"), placement in an apprenticeship or work scheme with a public or private body and placement in an appropriate family or in a public or private educational institution. When it decides upon these measures, the court may lay down the obligations particularly binding upon the child in the matter of education, occupational training and free-time activity, and it specifies the duties of the persons to whom the minor is entrusted. Moreover, in the specific case of non-custodial supervision, minors are required to allow themselves to be guided, assisted and followed by specialized teams. The court may also suspend execution of most of the guardianship measures or the court proceedings. In such cases also, the minors are supervised by specialized teams during the period of suspension. In the legislation relating to protection boards, it is clearly stated that they should give precedence in their action to measures that can be carried out within the minor's family or community. 197. The practice of the courts has not sufficiently translated into reality the intention of the legislator to give precedence to non-custodial measures of support and assistance to minors who have committed acts defined as crimes by criminal law. Until a few years ago, such minors were in the majority of cases simply entrusted to their parents or to the persons appointed as their guardians or placed in youth care centres, with recourse being had very rarely to any of the remaining measures. During the period 1982-1986, for example, the courts decided to entrust them to parents/guardians in 89 per cent of cases and to place them in youth care centres in 6.3 per cent; the remaining measures were taken only in 4.4 per cent of the total number of cases. From 1987-88, and especially 1989, the situation began to change. More frequent use began to be made of non-custodial measures of guidance and supervision, and in particular the court proceedings or guardianship measures were more frequently suspended (decided in 1991 in 26.7 per cent of cases). However, it has to be said that this resulted in fewer cases of child offenders being entrusted unconditionally to parents or guardians, the rate for which declined accordingly (68 per cent in 1991), rather than in fewer cases of such children being placed in youth care centres, the rate for which decreased only a little (5.1 per cent in 1991). 198. Young people over the age of 16 are tried by courts of general jurisdiction and the provisions of the Code of Penal Procedure apply to them. The Code of Penal Procedure is a recent legislative enactment which came into force on 1 January 1988. One of its main features is that it strictly ensures that the rights of the accused are defended. Moreover, the Constitution states (art. 32, para. 1) that "criminal proceedings shall provide all necessary safeguards for the defence" and expressly enshrines the most important rights of the accused, in particular those relating to article 40, paragraph 2, of the Convention, namely:
199. The Code of Penal Procedure regulates the exercise of these rights and strengthens the position of the accused throughout the proceedings, granting him yet further rights, in particular the right to be heard whenever a judicial measure affecting him is to be taken, not to reply to questions on the acts with which he is charged and on the content of statements made by him regarding those acts, to produce such evidence and to request such measures as he considers necessary, and to appeal against decisions that are unfavourable to him (art. 61, para. 1). The Code also provides for the free assistance of an appropriate interpreter whenever the accused does not know or have sufficient command of Portuguese (art. 92, para. 2). 200. Furthermore, and despite the fact that hearings are necessarily held in public, except in cases where the presiding judge decides that they shall not be or shall be so only in part, measures are laid down to protect the privacy of the accused. For example, in cases where the court has requested that the situation of the accused should be investigated, as is usually required when his age, at the time of the offence, is under 21 years, the report of the investigation will be read out during the hearing only at the request of the accused (art. 370, para. 4). If, once culpable conduct has been proved, the court considers it necessary for additional evidence to be produced in order to determine the nature and extent of the penalty (hearing of criminal experts, social rehabilitation officers and any other person who can usefully testify to the personality and living conditions of the accused), such evidence may only be produced in public session if the presiding judge considers that the dignity of the accused will not suffer as a result (art. 371). |
|
201. Judicial branch statistics do not give separate figures for the number of convicted persons over 18 years of age but less than 20 (or 21, from 1986 to 1990). The absolute number of these convicted persons and their percentage of the total number of convicted persons decreased between 1986 and 1989 from 1,512 (8.4 per cent of the total) to 1,479 (6.8 per cent). From 1989 on, the figures began to climb, with the figures for 1991 (2,912, representing 12.7 per cent of convicted persons) considered to be disturbing. 2. Treatment of children deprived of their liberty, including children who are detained, imprisoned or placed in rehabilitation institutions (art. 37 (b), (c) and (d)) 202. The right to freedom and security is guaranteed by article 27 of the Constitution, under which no one shall be deprived of his freedom except as a result of a court judgment convicting him of an offence punishable by law. Exceptions to this principle are pre-trial detention, other situations of a more temporary nature and "the placing of a minor under protective assistance or educational measures in an appropriate establishment, by order of the competent court". Under the OTM, a minor (under 16 years of age) who is charged with a crime cannot be placed by the police in an "appropriate area" of police premises or a youth care centre unless it is not possible to bring him immediately before the court, which must be done forthwith when the possibility does arise. During the examination proceedings, the judge may decide to place the child in an institution only in the most serious cases, i.e. in cases where it is presumed that placement in a youth care centre will be ordered as part of the final decision. This having been said, this measure cannot exceed 20 days in length, except in specific cases in order to place the child under observation. In such cases, placement - which is conducted in a "social action and observation centre" - may be extended up to three months (see arts. 49, 40, 56 and 84). 203. As stated earlier, a final decision involving placement in "youth care centres" should only be a solution of last resort. In addition, such measures are monitored by the judge for as long as they continue since it is felt that the court should end them whenever appropriate for the minor's social reintegration. Thus, whenever the judge considers it appropriate, he may enter into contact with the minor, even in the establishment where he is placed. As stated above (para. 125) the management of the establishment must inform the court annually on the development of the minor's personality and his behaviour, and his situation should be reviewed by the court every two years. 204. Minors under 16 years of age who are charged with a crime - when they are not placed in the private or public institutions generally available to children deprived of a normal family environment - can only be placed in so-called youth care centres; it is never permitted to incarcerate them. In any event, placement must end when the minor reaches majority age. Youth care centres report to the Ministry of Justice, through the Office of Protective Services for Minors. They include the social action and observation centres, which are basically support structures for the court and the minors' protection boards. There are three centres of this type, which were providing services to 318 children (194 boys and 124 girls) in November 1993. The youth care centres also comprise institutions for the implementation of placement measures, i.e. homes, medical and psychological institutes and rehabilitation establishments. "Homes" are small, family-type communities located in urban centres, for children who attend school, receive vocational training and lead a social life as appropriate for their age outside the institution. At the end of 1993, approximately 100 children were living in such homes. Like medical and psychological institutes - used to observe and place mentally deficient or abnormal minors - there is only one such institution, a medium-sized establishment in Lisbon which can house 45 minors. The rehabilitation establishments are the most common institutions. They are to be found throughout the country and generally provide care for 40 to 60 minors. According to information provided by the minors' protection services, 524 children (383 boys and 141 girls), aged 9 to 12 years (5.5 per cent), 12 to 14 years (22.1 per cent), 15 years (19.8 per cent) and 16 to 18 years (52.5 per cent) were placed in such establishments as at November 1993. 205. Under the OTM, the rehabilitation institution is aimed exclusively at promoting the social rehabilitation of minors through educational means. To that end, they must be given schooling, cultural education and vocational training, in accordance with their aptitudes and leanings. The use of punishment that is violent, degrading or might affect children's health or emotional balance is expressly forbidden. It is felt that the minors' families should be involved in their educational process, and establishments must inform the parents regularly on their children's situation and progress. In addition, with very few exceptions, children spend their vacations, and frequently their weekends, with their families. The rehabilitation institutions of today are quite open. They have no bars on the windows, high walls or police surveillance for avoiding break-outs. Moreover, although the children's academic, vocational and cultural schooling takes place inside in most cases, they are given frequent opportunities for outings, either to attend classes, cultural, training or athletic activities or simply for recreation. 206. As for young people over 16 years of age, there are no special provisions governing the conditions under which they can be arrested by the police or placed in pre-trial detention; these young people are covered by the rules of the Code of Penal Procedure. However, the Code is quite restrictive on this question, in keeping with the provisions of the Constitution. The police can only arrest someone taken in flagrante delicto and must bring the detainee before the judge within a maximum of 48 hours (arts. 141, 254 and 255). The judge, for his part, can order pre-trial detention only in cases where there is strong evidence that the accused committed a deliberate offence punishable by a prison term of a maximum length of over three years (art. 202, para. 1 (a), as stated in art. 27, para. 3 (a), of the Constitution) and only if the judge considers the less serious "coercive measures" set forth in the legislation (requirement to report periodically, bail, etc.) to be inadequate or insufficient. Pre-trial detention is no longer obligatory, the Code of Penal Procedure having ended the previous system under which pre-trial detention was mandatory for crimes of a certain nature or seriousness. In May 1993, 20 16-year-olds and 75 17-year-olds were being held in pre-trial detention. The former were charged with theft and injury. The latter were charged with homicide and drug-trafficking, in addition to theft and injury. 207. The Act on enforcement of custodial measures (Decree-Law No. 265/79) of 1 August 1979 as amended by Decree-Laws Nos. 49/80 of 22 March 1980 and 414/85 of 18 October 1985) lays down special rules for pre-trial detention that are more permissive than those applicable to convicted prisoners with respect to visits, clothing, food or work. Pre-trial detention is conducted in the regional establishments also used for prisoners serving sentences of up to six months. However, untried prisoners are separated from convicted prisoners as far as possible. Specifically, the law recommends that young detainees between 16 and 25 years of age should be held "in separate sections or establishments" where they should be under a regime "basically aimed at rehabilitation" (art. 216). Building establishments specifically for young detainees, however, has never really been considered; even separating them from adults in the common establishments is not generally possible. 208. However, young convicted prisoners are separated from adult convicted prisoners to a certain extent. The Act on enforcement of custodial measures provides for special prison establishments for young people between 16 and 21 years of age. This is true of the prison in Leiria, in the central part of the country (which replaced the reform school opened during the 1940s), which receives convicted prisoners under 21 years of age whose sentences are not too heavy. The prison in Linhó, on the outskirts of Lisbon is mainly intended for young prisoners. A few years ago, the Minister of Justice announced a project to establish a "young detainees' community" at Viseu, in a building which is currently a girls' rehabilitation establishment. The "young detainees' community" would be intended for young males from 16 to 20 years of age who are first offenders and whose sentences are less than two years in length. However, this project has not yet been realized. In May 1993, the prisons contained 25 young people under 18 years of age (2 16-year-olds and 23 17-year-olds), serving sentences for theft, arson and homicide. 209. Under Portuguese prison legislation, the goal of custodial measures for any detainee is his eventual social reintegration. Detainees' personalities must be respected as well as their legal rights and interests not affected by their conviction. They are entitled to access to paid work, social security, culture and the means of developing their personality. The right of all detainees to receive visits is recognized, and it is even felt that contact with people from outside, particularly relatives, should be encouraged. They are also granted the right to exchange correspondence and make telephone calls. 210. As we have said, the OTM does not provide for minors to be aided by counsel or another type of legal assistant except in appeals cases. In cases where a child is deprived of liberty other than in the conditions permitted by law the "curador" (representative of the government procurator's office before the minors' protection service), who is legally responsible for defending minors' rights and interests, should be asked to intervene. According to the Code of Penal Procedure, detaining a suspect implies that he will be charged (art. 58, para. 1 (a)). The accused has the right to choose a defence attorney or ask the court to assign him one, and to be assisted in all procedural acts in which he participates; he may even communicate with his lawyer in private while detained. This right can never be denied, even in particularly serious cases (such as terrorism or violent or highly organized crimes). When the accused is under 21 years of age, he must be assisted by defence counsel in all procedural acts (arts. 61, para. 1 (d) and (e), and 64, para. 1 (c)). 211. Police arrest is subject to control by the examining magistrate, who must interrogate the accused in the presence of his lawyer within a maximum period of 48 hours. If pre-trial detention is ordered by the judge, the accused may appeal against the decision; he may also ask for revocation or an alternative measure while in detention, if he feels that he has been detained other than in the conditions established by law or that the circumstances justifying the detention have ceased to exist. An appeal against a judicial decision ordering detention or denying revocation or an alternative measure must be judged within a maximum period of 30 days. The Act on enforcement of custodial measures lays down a special system for defence lawyers to visit detainees. Such visits are possible even outside normal visiting days and hours and take place in a private area, out of earshot of the guard. It is not permitted to inspect the contents of texts or other documents that the lawyer is carrying. As a guarantee against any unlawful detention or deprivation of liberty, the Code of Penal Procedure also provides for habeas corpus, which is in fact a constitutional guarantee. Habeas corpus may be requested by a detainee or any other citizen in exercise of his political rights, and a decision must be handed down by the court within a period of eight days. 3. Sentencing of juveniles, in particular prohibition of capital punishment and life imprisonment (art. 37 (a)) 212. As stated earlier, criminal penalties can never be applied to minors under 16 years of age. This rule is absolute - i.e. there can be no exceptions based on the degree of maturity or the number or seriousness of the crimes committed; it was introduced into the country in 1911, though the Children's Protection Act, and has never been amended in any way. From the age of 16 on, the Penal Code is applicable, although with certain limitations, laid down in Decree-Law No. 401/82 of 23 September 1982. In cases where the youth is under 18 years of age and the prison term under two years, the judge may, in view of the personality of the youth involved and the circumstances of the act, apply the measures laid down in the OTM. In cases where the person is placed in a youth care centre, he may, on his own request, be authorized to stay there after he has reached 18 years of age, when doing so would bring him definite advantages with respect to his training and education. 213. Under the above-mentioned legislation (which also provides special punishment, of a more educational nature, for young people from 18 to 21 years of age), judges must specifically reduce prison terms applicable to minors under 21 years of age when there is serious reason to believe that reduction of the sentence would be beneficial to the minor's social reintegration. Reduction of sentences applicable to persons under 21 years of age is a traditional principle of Portuguese criminal law and was already contained in the Penal Codes in the last century. |
|
214. It should also be mentioned that young people from 16 to 18 years of age who commit crimes can continue to be covered by the OTM regime when they have been the subject of a protective measure at the time the act was committed and their personality and the lack of seriousness of the violation so recommend. Actual use by the courts of the possibilities offered to them by Decree-Law No. 401/82 varies. While prison terms are very rarely replaced by protective measures - perhaps because the youth care centres are not prepared to receive this group of young people - reduction of sentences is nearly the rule and is only denied in particularly serious cases. 215. Beyond the specific provisions contained in Decree-Law No. 401/82, young people over 16 years of age are subject to the ordinary criminal legislation. However, the Portuguese Penal Code is modern (it entered into force in 1983), and deeply humanistic. It sets the maximum length of a custodial sentence at 20 years (25 years for certain crimes against humanity or for particularly serious terrorist crimes, or for concurrence of crimes) and it also considers such a sentence to be a solution of last resort and recommends that it should be replaced by a punishment not involving deprivation of liberty (warning, work in the general interest, fine, suspended sentence, probation) whenever this is sufficient to encourage the offender's social reintegration and serves the purpose of repressing and preventing crime. 216. Young people are given alternatives to prison terms, especially warnings, work in the general interest and probation, more frequently than adults. The prison terms and fines against them also very often take the form of suspended sentences. For this reason, perhaps, the absolute number of inmates (untried and convicted) from 16 to 18 years of age (inclusive), and especially their percentage of the total, has decreased. In 1983 there were 555 inmates in that age group, representing 8.3 per cent of the total; in 1992, 324, representing 3.4 per cent (as at 31 December of each year). 217. As mentioned above (para. 95), the absolute prohibition of the death penalty, life sentences or sentences of unlimited or indefinite duration, torture and cruel or degrading punishment has become a constitutional principle. Portugal even has a very strong tradition in this area. The death penalty was abolished for political crimes in 1852, for ordinary crimes in 1867 (under a bill approved by the Chamber of Deputies by 90 votes to 2) and for military crimes in 1911 (except in cases of war and for acts committed in the theatre of war). The last execution for an ordinary crime occurred in 1846. Life sentences - already limited to crimes carrying the death penalty in 1867 - were abolished in 1884. Cruel or infamous punishments (torture, confiscation of goods, infamy, beatings, etc.) were prohibited in 1822, with the triumph of constitutionalism. [Further information in State party report relating to the administration of juvenile justice](...) I. GENERAL MEASURES OF IMPLEMENTATION (...) 6. Following ratification of the Convention, both governmental and non-governmental bodies operating in the field of protection of the rights of the child were concerned to ensure that it reached as wide a public as possible. First of all, the Portuguese version of the Convention was published in the Official Gazette (Diário da República). In addition, it was included in several technical publications, notably those issued by the Ministry of Justice. One of these was the bulletin "Documentation and Comparative Law", sent out to all judges in the country, in which the text of the Convention was accompanied by references to the sources of each of its provisions, as well as by a commentary which referred to the travaux préparatoires for the Convention, explained the need for an international instrument relating to the rights of the child, and described the basic features of the Convention. Similarly, the review "Children and Young People", a publication of the Care of Minors Administration, intended mainly for technicians working in the field and for judges, also published the text of the Convention and a study on it. While on the subject of the Ministry of Justice, it should be noted that the Centre for Judicial Studies, an institution for the training of judges and government procurators, brings the Convention to the attention of junior magistrates. In the Centre's training seminars, stress is also laid on study of the Convention, and on the important role of the courts in ensuring its effective implementation. 7. The police are also concerned to ensure that, in their schools, trainees are made aware of the rights of the child. Thus, the security forces have autonomy as regards the teaching of matters relating to fundamental human rights and law relating to the family and minors, while in the Republican Guard the rights enshrined in the Convention form part of the curriculum of the training courses, and are also frequently included in the standard teaching given to permanent members of the force. The Officer Training School of the Criminal Investigation Department also gives a special place in its curriculum to human rights in general and to the rights of the child in particular. (...) III. GENERAL PRINCIPLES (...) B. Best interests of the child (art. 3) 27. The principle of the best interests of the child was clearly affirmed in Portuguese law for the first time in the Child Protection Act of 27 May 1911, which set up juvenile courts to which it gave broad powers, in relation not only to children at risk but also to socially maladjusted or even delinquent children. Article 2 of this Act provides that the decisions of the courts shall always be taken in the best interests of the minor concerned. The Act on the Organization of Care for Minors (OTM), a new law on the subject which has already gone through several versions (the current version having been introduced under Decree-Law No. 314/78 of 27 October 1978) retains the same criterion, declaring that juvenile courts shall have as their objectives the legal protection of minors and the defence of minors' rights and interests. (...) D. Respect for the opinions of the child (art. 12) (...) 41. Legislation covering the care of children who are at risk, socially maladjusted or guilty of criminal offences, which will be described in chapter VIII, section B, paragraphs 181 et seq., lays down that when the application of a particular measure is appropriate, the minor shall be heard "whenever possible" (paras. 187 and 188). With regard to administrative decisions taken by the social security services or by protection boards, the law provides that parents or legal representatives are entitled to oppose any action or decisions by the latter and to seek a judicial review of the case (see para. 189 below). IV. CIVIL RIGHTS AND FREEDOMS (...) G. Protection of privacy (art. 16) 88. The Constitution recognizes the right of all citizens to the protection of the intimacy of their private and family life (art. 26, para. 1). This right is twofold: the right to prevent access by third parties to information on private and family life and the right to prevent the disclosure of information on these aspects. The latter is reaffirmed in article 80 of the Civil Code, which adds that the extent of the privacy depends on the situation and status of the individual. The Penal Code also establishes penalties for certain acts which adversely affect this right, such as the disclosure of information relating to the intimacy of private life (art. 178), unlawful recordings or photographs (art. 179), intrusion into private life (art. 180) and breach of professional secrecy (art. 184). 89. Other constitutional provisions related to this article, which safeguard the right established therein, are those of article 34, which guarantees the inviolability of the home and of correspondence, and article 35, which concerns matters relating to the use of data processing. With regard to the inviolability of the home, it must be emphasized that entry into the home depends on the wishes of the person living there. The Penal Code (arts. 176 and 177) provides punishment for anyone who enters and remains in the home of another person or premises forbidden to the public against the will of the lawful occupant. Exceptions to this rule are cases in which entry is ordered by the courts in the situations and manner prescribed by law. However, not even the courts may authorize entry into the home during the night. 90. With regard to the inviolability of correspondence, article 34, paragraph 4, prohibits interference by the public authorities with correspondence and telecommunications, except where criminal procedure may be involved. Under article 179 of the Code of Penal Procedure, judges can order the seizure of correspondence. The monitoring and recording of telephone conversations or communications can only be permitted or ordered by a judge in certain circumstances. Evidence obtained by means of wrongful interference in private life, in the home, with correspondence and telecommunications is inadmissible. (Constitution, art. 32, and Code of Penal Procedure, art. 26). 91. The inviolability of correspondence and communications also applies to individuals. The Penal Code provides punishment for any breach of secrecy of correspondence and telecommunications committed by mail, telegraph, telephone or telecommunications employees (art. 434), by former employees (art. 435) and by non-employees (arts. 182 and 183). The right to secrecy of private correspondence and communications means that violation of the right is prohibited and that the right to non-disclosure by persons who have access to it, particularly for professional reasons, is safeguarded. The Civil Code also devotes a number of articles (75 et seq.) to the duty to maintain secrecy in respect of the content of letters, other written communications and pictures. 92. Decree-Law No. 90/83 of 16 February 1983, which establishes detention centres for young persons between the ages of 18 and 21, provides for measures concerning the screening of the correspondence of young detainees. Correspondence written by or sent to young people may only be examined to prevent the introduction of forbidden objects, the forming of criminal relationships or the commission of acts undermining the security of the detention centre. Similar regulations exist for minors in youth care centres. |
|
(...) 94. Article 26 of the Constitution guarantees everyone the right of respect for his good name and reputation, thereby protecting honour and dignity. Anyone who infringes this right is liable to punishment under the Penal Code for the crimes of defamation and insult (arts. 164 and 165 respectively). Article 26, paragraph 2, of the Constitution calls for the establishment of effective safeguards against the abuse or use contrary to human dignity, of information concerning individuals and families. These guarantees include indictment and criminal sanctions for certain types of conduct, as well as civil sanctions, such as compensation for moral and/or material damage suffered by the victims or measures ordered by the court, particularly interim relief. (...) V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE (...) J. Periodic review of placement (art. 25) 125. The protection laid down in article 25 of the Convention is aimed at recognizing the right of a child who has been the subject of a placement measure to a periodic review of that measure. This right is explicitly established only in the case of children who have been institutionalized as the result of a decision by the juvenile court (para. 202 below). In such cases, the minors' protection system requires the management of the institution holding the minor to review the minor's situation at the end of every two-year period dating from the court's previous decision. For its part, the management of the institution must inform the court, within 30 days following the end of every year of placement or institutionalization, as to the development of the minor's personality and his behaviour. Although the legislation on foster families (Decree-Law No. 190/92 of 3 September 1992) does not expressly require periodic review of the measure, staff work together with the foster family and natural family to monitor the child's situation step by step. Source: Initial reports of States parties due in 1992: Portugal, UN Doc. CRC/C/3/Add.30, paras. 6-7, 14, 20, 27, 41, 88-92, 94-97, 125, 181-217 (16 September 1994) |