1. This report deals with the application in internal law of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination, which was adopted by the United Nations General Assembly in resolution 2106 A (XX) of 21 December 1965 and came into force on 4 January 1969. This Convention was approved, for the purposes of accession thereto, by Act 7/82 of the Assembly of the Portuguese Republic, dated 29 April 1982, and came into force for Portugal on 23 September 1982.
2. This report constitutes the consolidated text of the fifth, sixth, seventh and eighth reports by Portugal on the application of the Convention, and covers the period 1991 to 1998. The fact that this is consolidated text of four periodic reports that should have been submitted in 1991, 1993, 1995 and 1997 and that there was dialogue with the Committee at the time the previous reports (CERD/C/179/Add.2) were submitted naturally places limits on its content.
3. It thus includes current information on the internal application of the Convention, taking account of the new developments that have taken place. It must be stressed in particular that the Constitution has undergone a fourth revision (Constitution Act 1/97) which has recently been approved (September 1997); it is to the new text of these provisions that reference will be made.
4. In accordance with the guidelines (CERD/C/70/Rev.2) regarding the form and content of the reports to be submitted by States parties under article 9, paragraph 1, of the Convention, Portugal is requested to provide information on the demographic composition of its population. This has been done, but without any reference to the racial composition of the population, in line with the recommendations of the United Nations suggesting that inclusion of characteristics relating to "race" should be optional.
5. Furthermore, the Portuguese Constitution establishes the principle of non-discrimination, pursuant to which no one may enjoy a privilege or benefit, be deprived of a right or exempted from an obligation on account of his race. However, in view of the interest shown by the Committee, a fairly detailed analysis of the demographic composition of the Portuguese population is given in the first part of the report. This part will also deal with the general institutional framework, the atmosphere regarding racism and intolerance in Portugal and the participation of Portugal in various international meetings concerned with racial discrimination, racism and xenophobia. The second part of the report is devoted to comments on the application of articles 2 to 7 of the Convention.
6. The source of the information that follows is the annual report of the Aliens and Frontiers Department for 1996.
7. The total number of foreigners resident in Portugal on 31 December 1996 was 172 912, which amounts to an increase of 2.7% as compared with the figure for 1995. This is the lowest percentage increase between 1986 and 1996.
8. The two largest population groups originate from the European Union, with 43 732 (25.3%) residents, and from the community of Portuguese-speaking countries, with 97 196 (56.2%) residents.
9. More than half of these foreigners are resident in the Lisbon district, 95 348 (55.1%), followed by the districts of Faro, 21 660 (12.5%), Setubal, 15 985 ( 9.2%), Porto, 10 690 (6.1%) and Aveiro with 6 903 (4.0%). The lowest concentration of foreign residents is in the district of Portalegre (479 or 0.3%) and Bragança (259 or 0.1%).
10. African communities represent about 47% (81 176) of the overall number of foreign residents, while the European Union accounts for 25.3% (43 732), Central and South America 14.9% (25 733). The Asian continent accounts for the smallest share of foreign residents with about 4.1% (7 140).
11. Of the nationalities represented, Cape Verde comes first with a total of 39 546 (22.9%), with a majority of men, 23 908 (60.5%), and only 15 638 (39.5%) women. The Brazilian community comes second with 20 082 residents, 10 884 men (54.2%) and 9 198 women (45.8%).
12. With regard to their distribution by sex, the majority of foreign residents are male (100 987, or 58.4%), while 71 925 are female (41.6%).
13. 86 810 (53.5%) of these foreign residents are active while 75 399 (46.5%) are not active. Of the active population, 19.3% (16 772) are employers or self-employed, while 80.7% (70 038) work for another employer. Of the non-active foreign residents, students, with 44.3% (33 375) and housewives, with 44.0% (33 190) account for almost the entirety of this group. There are 5 450 foreign residents who are retired (7.2%).
14. Analysis of movements recorded in 1996 shows that 7 767 foreign residents entered Portugal: 4 283 (55.1%) were men and 3 484 (44.9%) were women. These persons mostly cam from countries of the European Union, with 2 717 (35.0%), and Africa, with 2 649 (34.1%). Cape Verde with 1 068 persons and Brazil with 829 foreign residents were the countries that contributed most to this flow. The age structure of the new foreign residents shows that the age group 25/29 years was the most representative with 1 356 (17.6%) persons.
15. With regard to cessation of residence (departures), 3 171 foreigners left the country: 1 737 males (54.8%) and 1 434 females (45.2%). The most nationalities most represented were Brazilians with 648 (20.4%) of departures and Venezuelans with 503 (15.9%). The age group experiencing the most movement was the group aged 20/24 years with 617 (19.5%) cessations of residence.
16. Without making reference to race - which is not permitted under the Portuguese legal system as we have emphasized above and which is deemed by the United Nations an optional criterion - it must be pointed out that there are about 40 000 Portuguese citizens who may be considered to be Gypsies and who must be offered - like other Portuguese citizens - conditions for harmonious insertion into Portuguese society. This has led the Government, by resolution 157/96 of the Council of Ministers, published in the Official Journal, series 1 - B, of 16 October 1996, to set up a working group for the equality and insertion of the Gypsies. This working group completed its work in January 1997 and therefore ceased to exist, being replaced by a group to follow up the measures proposed in the report submitted by it. The Gypsies have been in Portugal since the XVth century. They have been Portuguese citizens since the Constitution of 1822 and the Constitutional Charter of 1826 which eliminated inequalities based on race and recognized the Portuguese citizenship of persons born on Portuguese territory.
17. These data also come from the Aliens and Frontiers Department. They are more recent and give a more accurate idea of the number of foreigners resident in Portugal. On 31 August 1997, the resident foreign population numbered 174 638 persons, of whom 49 014 originated from Europe and 45 360 from the European Union. In the latter group, Spaniards (9 683), Germans (8 213) and French citizens (5 326) were the most numerous.
18. The largest group of foreign residents comes from Africa (81 472), with 16 289 from Angola, 39 655 from Cape Verde, 12 743 from Guinea Bissau, 4 413 from Mozambique and 4 278 from Sao Tome and Principe. Thirty-six thousand one hundred and ninety-seven originated from the Americas, with 20 045 Brazilians. Asia was the smallest group, with only 7 190 persons.
Foreign population resident in Portugal on 31 August 1997 (by country of origin)
19. Problems of racial discrimination arise essentially within the country and are not connected with nationality. Nevertheless, the acquisition or retention of Portuguese nationality is a factor that helps to explain Portugal's attitude to the foreigners (sometimes associated with problems of xenophobia) who have integrated into the multiracial and multiethnic society of Portugal. Since the Constitution forbids the conducting of surveys on the racial or ethnic component of the population, it is impossible - despite awareness of its composition - to measure in figures the different ethnic groups that make up Portuguese society. Tables 2 and 3 for the year 1997 show that applications to acquire or retain Portuguese nationality are nearly always accepted, that their number was highest in the case of Cape Verde, and that the busiest month in the period January-August 1997 was February.
Acquisition or retention of Portuguese nationality (January - August 1997)
Granting or retention of Portuguese nationality (January - August 1997)
Extraordinary regularization of clandestine immigrants (1996)
20. The extraordinary regularization of clandestine immigrants is part of the effort to integrate the different elements of Portuguese society into a multiethnic and multiracial society. Because of the large numbers of foreigners, mostly from the Portuguese-speaking countries, entering the country in an irregular manner, two special campaigns for the extraordinary regularization of clandestine immigrants were organized, one in 1992 and the other from June to December 1996, so that these persons might enjoy full status in Portugal together with the economic, social and cultural rights conferred by such status (see also paragraph 59, in section D.4 of chapter II below).
21. The results of this regularization of clandestine immigrants were as follows: from 11 June to 11 December 1996 (period of regularization) a total of 35 082 persons were legalized: 9 255 from Angola, 2 330 from Brazil, 6 872 from Cape Verde, 5 308 from Guinea Bissau, 416 from Mozambique and 1 549 from Sao Tome and Principe. Those with no initial links with Portugal include 1 754 Pakistanis and 1 608 Chinese.
22. Three sets of statistics relating to the demographic composition of the population of Portugal for 1996 and 1997 prepared by the Plan Division of the Aliens and Frontiers Department will be found in annex. / These annexes may be consulted in the archives of the Secretariat. /
23. When the third and fourth periodic reports of Portugal (CERD/C/179/Add.2) were submitted in March 1991, the Committee formulated several observations (see the Committee's report submitted to the General Assembly, A/46/18, paragraphs 110 to 126). Specific points of information on the subjects raised by the Committee during discussion of the previous reports are given below, even if several of these points will be dealt with in greater detail in the second part of this report.
1. Demographic composition of the population
24. The demographic composition of the population is a function of Table 1 above showing the foreign population. The rate of unemployment is currently 7.3%. With regard to education, the objective for 1999 is to offer pre-school education to 90% of children aged five, 75% of children aged four and 76% of children aged three; to achieve this, 45 000 teaching posts will be created, through public investment for the creation of 567 classrooms per year.
2. Mother tongue of the population
25. The mother tongue of the population is Portuguese. A minority language with a very few speakers, Mirandês, exists in the north-east of the country; optional classes exist in the local schools for those who wish to follow them.
3. Campaigns of extraordinary regularization of clandestine immigrants
26. With regard to residence permits, there have been two campaigns for the extraordinary regularization of clandestine immigrants, as already stated (see paragraphs 20 and 21), showing evidence of Portugal's tendency to assimilate foreigners. The figures for the campaign that took place from June to December 1996 are given in Table 4. This tendency to assimilate is also evidenced in the granting or retention of nationality (see paragraph 19 above). The criteria involved for the granting of Portuguese nationality are mentioned in connection with article 5 under the heading of "Political rights" (see paragraphs 138 to 145 below).
4. Strengthening of European identity
27. The strengthening of European identity mentioned and maintained in paragraph 5 of article 7 of the new text of the Constitution does not affect non-European citizens, who retain all the rights recognized to them by a democratic society. This strengthening of European identity refers specifically to the regional level, in the European international organizations (European Union, Council of Europe, etc.), and the effort towards economic, social, political and human integration pursued by Portugal.
5. Legal consultation offices
28. The legal consultation offices mentioned below (see paragraphs 72 to 74 and 115) are currently 11 in number. They are available to all citizens who require information on the functioning of justice and are desirous to know their rights without having to go through a lawyer, particularly on account of the costs a consultation would normally involve.
6. High Commissioner for Immigration and Ethnic Minorities
29. The High Commissioner for Immigration and Ethnic Minorities is currently responsible for questions associated with the problems of discrimination, racism and xenophobia. He follows in the wake of institutions such as the Commission for the promotion of human rights and equality in education and represents the effort of the Portuguese State to ensure combat against discrimination, racism and xenophobia. This High Commissioner comes under the authority of the presidency of the Council of Ministers (for more details, see paragraphs 54 and 55 below).
7. Jurisprudence relating to Gypsies
30. With regard to jurisprudence relating to Gypsies, some new developments are mentioned in the commentary to article 2, that is, in section B, entitled "Jurisprudence relating to minorities" and in the commentary on article 4 entitled "Recommendation 72/A/96 of the Ombudsman" (see paragraphs 80 to 90, 104 and 105 below).
8. Skinheads
31. On the question of skinheads, reference should be made to the commentary on article 4, that is, in section B, entitled "The MAN decree of the Constitutional Court" (see paragraphs 100 to 103 below).
9. Education
32. The personal identity of citizens is always the ultimate objective of education. In this respect, educational programmes on human rights have been established and special measures are taken for the education of the most disadvantaged groups. The "Inter-cultures" data bank shows that the class of the population that suffers the worst failures and has the most school drop-outs is the Gypsies. For fuller information, see the commentary on article 7 in paragraphs 292 to 340 below.
1. State based on the rule of law
33. Portugal is a social, democratic and non-discriminatory State based on the rule of law (arts. 1 and 2 of the Constitution). In regard to racial discrimination, some more specific provisions of the Constitution may be mentioned. Thus, a Portuguese citizen is a person considered to be a citizen by the law or by an international convention (art. 4). Article 13 sets out the general principle of non-discrimination and equality, providing in paragraph 2 that "no-one may be privileged, favoured, disadvantaged, deprived of a right or exempted from a duty on account of his or her ascendancy, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation or social condition".
2. Foreigners
34. As it has been said, the fact of being foreign sometimes evokes in nationals a different, and possibly discriminatory attitude to foreigners. However, in regard to foreigners, stateless persons and European citizens, article 15 of the Constitution establishes the following:
3. Personal rights of every citizen
35. In its Title II, "Rights, freedoms and personal guarantees", the Constitution in article 26, under the heading "Other personal rights", provides in paragraph 1 that "all are recognized to have the rights to personal identity, development of personality, civil capacity, citizenship, good name and reputation, image, speech, protection of the intimacy of private and family life, and legal protection against any form of discrimination". This right to the enjoyment of personal rights is addressed to all, and cannot be diminished on account of race, colour or the fact of being a foreigner.
4. Asylum, expulsion, extradition
36. Situations connected with the right to asylum, expulsion and extradition could give rise to discriminatory treatment or abusive behaviour, even on the part of the authorities, if not carefully regulated. These situations concern foreigners who are sometimes not of the same colour or race, and they therefore need to be taken into account in this report on racial discrimination.
37. In regard to expulsion, extradition and the right to asylum, article 33 stipulates:
5. The question of East Timor
38. The question of East Timor is important for Portugal. Under the heading "Self-determination and independence of East Timor", article 293 of the Constitution stipulates:
39. It is also important to ensure proper reception of people from Timor; a commission has therefore been set up for their reception (see below paragraphs 58, 221 and 222).
40. A brief description follows of the general situation in Portugal in regard to racism and racial discrimination, without prejudice to the greater details given in the second part of this report. Information will also be found further on concerning the legal measures taken and the texts that are applicable.
1. Incidents with Blacks
41. Since 1985 there have been a number of violent actions of a racist nature. They are essentially the making of skinheads inspired by a neo-Nazi ideology and extreme radicalism, and Blacks are their main target.
42. In 1989, a well known far left political leader was assassinated. The measures then decreed by the public authorities resulted in a considerable fall-off in this type of action after 1989, to the extent that the Constitutional Court decided that it could not declare the extreme right-wing organization, the National Action Movement (MAN), defunct as it considered that it had already ceased to exist. Thus, even if the perpetrators of the crimes were members of the MAN, there was no proof that there was a link between the crimes and the organization itself (see commentary on article 4, in paragraphs 100 to 103 below).
43. In January 1992, an African was found dead. The end of 1992 was also marked by a wave of violence in football stadia provoked by skinheads, probably of a racist nature. In February 1993, another African was killed at Feijó, and in June 1993 another African was also found dead; the persons who committed these crimes are now in prison.
44. In the meantime, other incidents involving skinheads were reported. But several incidents caused by young Blacks were also reported. These may be due to the difficult situation they are experiencing, but they may also be a form of revenge. These actions usually occur in big urban areas.
45. Other incidents of a racist or xenophobic nature have been observed, the (occasional) submission of petitions with a large number of signatures to the authorities protesting against the installation of individuals of a certain race or colour (Gypsies and black Africans in particular), or demonstrations organized to the same end. Racist mural graffiti attributed to school students have also be found, and some fights of a racist character have occurred in certain establishments open at night, but these incidents have not been very common. Gypsies are the most common victims of these attacks, followed by Blacks and people returning from the former colonies.
46. In 1995, some very serious incidents broke out, disturbing the apparent peace. On 10 June 1995, the day commemorating Camões and the Portuguese communities, a group of 30 skinheads armed with knives burst into a neighbourhood generally frequented by people in search of nocturnal entertainment. Their violence consisted in pursuing and attacking any Black they might meet, and as a result one man was assassinated and 12 injured. Nine skinheads were captured by the police and the judge decided that they should await judgement in prison (preventive detention).
47. This act of violence was almost unanimously condemned. The Democratic People's Union (UDP), a party of the extreme left, associated it with the comments made on the same day by certain figures identified with the extreme right. This act was also condemned by the youth association "Olho vivo", which runs an antiracist telephone line. "SOS-racism", an NGO, also condemned this act of violence. The Lisbon municipal authority also criticized it through its division of social support and the municipal council for immigrant communities and ethnic minorities.
48. At the funeral of the victim - Alcindo Monteiro - the following Thursday at Barreiro, the bishop of Setubal conducted the ceremony and made a speech against racism and discrimination. The bishop's presence was seen as important, for he has acquired a considerable reputation in matters of human rights as a result of his indefatigable efforts in this domain. In the days that followed, there were antiracist demonstrations and a few acts of violence. However, there were no sequels to these affairs and no incident of such gravity has occurred since then. The skinheads were given heavy prison sentences in 1997, going as far as 18 years for six of them.
2. Incidents with Gypsies
49. The other sector in which phenomena of intolerance and discrimination are to be found is among the Gypsy population. For this population, a jurisprudence that will be examined below (paras. 80 to 90) has had to make its way within the national legal system for equality to be re-established.
50. Gypsies are sometimes the targets for threats or measures by certain individuals, and in a few instances by public authorities, to have them expelled from a place of residence. In 1996, under strong pressure from the population, the mayor of Vila Verde decided to have the housing accommodating the Gypsy population destroyed on the allegation of drug trafficking; the Civil Governor (Prefect) of the district of Braga immediately opposed this measure, taking his complaint to the Ombudsman, who formulated a recommendation calling upon the mayor to reinstate the Gypsies (see, under the commentary on article 4, recommendation 72/A/96 of the Ombudsman, in paragraphs 104 and 105 below).
51. The procedure is currently running its course. Meanwhile, the family of the head of the Gypsy community - and the head himself - have been the object of criminal proceedings for drug trafficking. Only a few individuals have been convicted, and the innocence of the head of the family and most of the Gypsies has been established by the facts. Because of his intervention, the Prefect of Braga has received strong support from all intellectual sectors of Portuguese society and from several political parties.
52. After this description of the Portuguese situation, it is useful to briefly analyse the recent measures adopted internally and to indicate the significance of Portugal's participation in the activities of international organs.
53. In the framework of Portuguese domestic law, several measures have been implemented to combat possible violations of the principle of non-discrimination and the protection of ethnic minorities, whether they be composed of Portuguese citizens or of foreigners.
1. High Commissioner for immigration and the ethnic minorities
54. Decree law 296-A/95 of 17 November, relating to the Organization Act of the thirteenth constitutional Government, provided for the creation of the High Commissioner for immigration and the ethnic minorities and placed him under the presidency of the Council of Ministers. The creation of this post was determined by the new challenges facing Portugal as a country of immigration, for Portugal has traditionally been a country of emigration and it is only quite recently that it has become a country of immigration. This has given rise to the need to create measures to integrate the families of immigrants into Portuguese society. The ultimate objective of this policy is to prevent xenophobia, intolerance and discrimination against foreigners resident in Portugal.
55. The High Commissioner has four major functions:
2. Working Group for the Equality and Insertion of Gypsies
56. The Working Group for the Equality and Insertion of Gypsies was established by Council of Ministers resolution 157/96 of 19 October and addresses two fundamental objectives: on the one hand, detailed analysis of the difficulties of the Gypsies in achieving insertion into Portuguese society, and, on the other hand, the development of proposals to help to eliminate these situations of social exclusion (see, in paragraphs 223 to 234 below, the commentary on article 5 relating to the special measures for the integration of ethnic minorities, and, in paragraphs 299 to 313, the comments on article 7 dealing with the education of Gypsies).
57. In January 1997, the Working Group (chaired by the High Commissioner for immigration and the ethnic minorities) submitted a progress report whose basic features were recognition of a certain tendency in Portuguese society towards exclusion and indifference towards Gypsies. Once the report had been submitted and suggestions formulated the Working Group was dissolved and replaced by a group responsible for monitoring the application of the measures for the integration of Gypsies.
3. Interministerial Commission for the Reception of the Timorese Community
58. In the framework of the implementation and respect for the principle of non-discrimination, the Interministerial Commission for the reception of the Timorese community was created by resolution 53/95 (Official Journal, 2nd series, 7 December 1995). This Commission has the task of coordinating and assessing proposals aimed at the development of integrated policies favouring the reception and insertion of the Timor community in Portugal (see also the commentary on article 5 in paragraphs 221 and 222 below). The creation of this Commission is naturally related to recognition of the right to self-determination for East Timor, to which Portugal is deeply committed. In the more global perspective of promoting self-determination in East Timor, Portugal is giving support to the Timorese who seek refuge in Portugal.
4. Process of extraordinary regularization of clandestine foreign immigrants
59. Law 17/96 of 24 May organized, as we have already described (paragraphs 20 to 22), a process for the extraordinary regularization of clandestine foreign immigrants. This was coordinated by the National Commission for Extraordinary Regularization (CNRE) which examined the applications. This regularization was necessary in order to allow foreigners to fully enjoy their social, economic and cultural rights, particularly in regard to work, social services and access to housing, since rehousing programmes are only open to persons in a regular situation. This process of extraordinary regularization took place between 11 June and 11 December 1996. The figures relating to this extraordinary regularization are given in Table 4 above.
60. At the international level, the position of Portugal reflects the provisions of its Constitution and its internal policy. Thus, Portugal undertakes to respect human rights and participates in the adoption of measures for their promotion, and undertakes to introduce them and ensure respect for them under domestic legislation.
1. Council of Europe: "All different, all equal" campaign
61. Portugal participated actively in the "All different, all equal" campaign under the auspices of the Council of Europe. This campaign started in December 1994, proceeded with various youth activities in the year 1995, in 1996, and was renewed for the year 1997. It was coordinated in Portugal by the Secretary of State for Youth and its chief support came from the Portuguese Youth Institute. Several ministries were represented in the organization of the campaign, including the Aliens and Frontiers Department and the Ministry of Labour.
62. But the campaign did not only involve representatives of public bodies. There were numerous nongovernmental organizations, students' association and even youth groups taking part. A fund was set up and enabled activities of all sorts to be carried out, all of them associated with awareness of the problem of racism and xenophobia; in 1995, a youth train joined Portugal with other countries of Europe, destination Strasbourg.
63. In the framework of the Ministry of Justice, it was stressed to the entities more directly involved with the organization of the campaign that it should not be limited to young people but should draw the attention of the whole of society to certain problems, such as those of foreigners and their rights, and should include certain groups in all activities, such as the group of children received into special schools because of family difficulties, and minors in general. The proposals of the Ministry of Justice were formulated with the collaboration of the Bureau of Documentation and Comparative Law of the Office of the Procurator-General of the Republic, the Institute for Social Reinsertion and the prison services.
2. Council of Europe: European Commission against Racism and Intolerance
64. The European Commission against Racism and Intolerance of the Council of Europe operates in a framework composed of country groups and carries out its action by means of country by country analysis in which countries act as rapporteurs on each other within each group. Following the presentation of the reports on each country, the Commission formulates recommendations on legislative measures of a civil, administrative and penal nature to be adopted in the country concerned and suggests social measures to that country. Portugal thus replied to a questionnaire from the Commission on the various problems relating to racism and xenophobia. Portugal was also designated rapporteur for Luxembourg, Romania and Cyprus. After preparing its reply to the questionnaire on its internal situation, Portugal accepted and discussed the proposed recommendations for Portugal. The Commission completed its work and put the results on the Internet (http://www.ecri.coe.fr).
3. United Nations Organization
65. Portugal responds frequently to the questions put to it, for example, by the Office of the High Commissioner for Human Rights, and takes an active part in the work of the Commission on Human Rights.
4. European Union
66. In the framework of the European Union, Portugal was a co-author of the joint action of 15 July 1996 adopted by the Council on the basis of article K.3 of the Treaty establishing the European Union, concerning action against racism and xenophobia, and the institution of the European Monitoring Centre on Racism and Xenophobia. It also played an active part in the European Year against Racism decreed by the European Union, organizing several actions of a diverse nature to draw the attention of citizens to the problem of racism and intolerance. Finally, it has taken part in Community meetings that have tried to identify the problem in order to prepare for closer harmony between legislation on these issues at the European level.
67. The previous reports (CERD/C/101/Add.3 of 1985, CERD/C/126/Add.3 of 1988 and CERD/C/179/Add.2 of 1990) and their presentation showed Portugal's determination to condemn all forms of racial discrimination and to adopt measures to proscribe them and to afford protection, in general, to rights, freedoms and guarantees. This determination is to be found in various provisions of the Constitution and domestic legislation attempts to reaffirm it in a concrete manner. The texts mentioned below reflect this concern.
1. State of siege and state of emergency
68. Law 44/86, of 30 September, concerning the regimes of state of siege and state of emergency, provides that their declaration shall in no way affect rights to life, integrity and identity of persons, civil capacity and citizenship, the principle of non-retroactivity of criminal law, the right of persons accused to a defence, and freedom of conscience and religion. In cases where the exercise of rights, freedoms and guarantees may be suspended, the principle of equality and non-discrimination is always respected.
69. The Constitution has also, in the text maintained in the fourth revision of the Constitution, article 19, preserved the provision that deals with these two situations, clarifying their scope (paras. 2 and 3) while stressing the principles of proportionality and the need for the measures adopted by the declaration.
70. Citizens whose rights, freedoms and guarantees have been violated by the declaration of the state of emergency or by an unconstitutional or illegal measure adopted during its application are entitled to an indemnity, according to the general terms of the law, their right of access to the courts being in no way affected for the defence of rights, freedoms and guarantees infringed or threatened with infringement.
2. Code of Penal Procedure
71. The new Code of Penal Procedure, adopted by decree-law 78/87, of 17 February, aimed to construct a system making it possible to attain the aims of the realization of justice and the preservation of the fundamental rights of individuals while at the same time ensuring the security of the community. The solutions adopted have applied the principle of equality of arms in procedure and make for the strengthening of the rights to defence of the accused (art. 61). To this end, for example, the intervention of an interpreter is foreseen in procedures in which someone who is not fluent in the Portuguese language is involved, without that person incurring any costs (art. 92).
3. Access to law and to the courts
72. In December 1987, the Government legislated on access to law and to the courts. A system promoting the right to information and legal protection, foreseen by article 20 of the Constitution was thereby instituted (see also, in paragraphs 109 to 113, the commentary on article 5 concerning access to justice). This helps to ensure that no-one is prevented, by their social or cultural condition or by the lack of financial means, from asserting or defending their rights. Legal information is of paramount importance in that it establishes a link between citizens and justice. In this spirit, reception services are gradually being created to work with the courts and the judiciary services.
73. Legal consultation offices give out legal information free of charge through lawyers appointed for this purpose by the bar, the costs being borne by the Ministry of Justice. There are at present 11 such offices, at Lisbon, Porto, with an extension at Guimarães, Coimbra, Evora, Lamego, Covilhã, Ponta Delgada, Vila do Conde, Faro, Hangra do Heroísmo and Vila Nova de Gaia.
74. It should be stressed that foreigners and stateless persons residing legally in Portugal enjoy this right to legal protection. This same right is also recognized to non-resident foreigners who are nationals of countries where a similar legal provision is applicable to Portuguese citizens.
4. Access by foreigners to legal aid
75. Here we have a situation in which the Constitutional Court has played a predominant role. When it decides three times - in three different proceedings - that a law is unconstitutional, that law is expunged from the legal order. This is what has happened to the former text of the legislation on legal aid. In July 1993, and in August 1994, the Aliens and Frontiers Department refused to grant asylum to two foreign nationals, who wished to appeal against this decision. Not having the means, they sought free assistance from a lawyer.
76. They came up against the obstacle of the legislation on legal aid (decree-law 387-B/87 of 29 December and decree-law 391/88 of 26 October). Article 7 of the first legislative text contained the provision that "foreigners and stateless persons habitually resident in Portugal enjoy the right to legal protection". And article 1 of the second legislative text provided as follows:
77. From these articles it was deduced that asylum seekers could not enjoy the benefit of legal aid, although possessing the prerequisite conditions for it to
be granted. The judges did not apply the texts in question for infringement of articles 13.2, 15.1 and 2, and 20.1 and 2 of the Constitution. The questions were referred in a compulsory appeal to the Constitutional Court which ruled that the legislative texts in question were unconstitutional. These decrees were published in the Official Journal, 2nd series, of 1 August 1995. The third decree of the Constitutional Court on this question was handed down as number 316/95 and published in the Official Journal, 2nd series, of 31 October 1995.
78. A declaration of unconstitutionality with general binding force followed, expunging the parts of the legislative texts mentioned from the Portuguese legal order, and in 1996 the legislation was amended by law 46/96 of 3 September which now permits foreigners whose situation is not regularized to seek legal aid for their regularization proceedings.
5. Broadcasting and television
79. Law 87/88, of 30 July, concerns exercise of the activity of broadcasting within the national territory. According to article 8, freedom of thought in broadcasting includes the fundamental right of citizens to information providing for ideological pluralism and free expression, and the confrontation of different strands of opinion and of thought that are essential to the practice of democracy. But the broadcasting of any programme or message inciting to violence or contrary to criminal law is prohibited. The same goes for law 58/90 of 7 September on television.
80. Certain decisions in jurisprudence connected with racial discrimination must be mentioned: in practice, jurisprudence also contributes to the implementation of international conventions. In particular, reference must be made to affairs relating to legislation or to racist acts.
1. Constitutional jurisprudence
81. By its decision 14/80, the Constitutional Commission ruled that the rural service regulations of the National Republican Guard were contrary to the Constitution on the grounds that they infringed the principle of non-discrimination: the regulations allowed these police to treat Gypsies in a discriminatory manner.
82. Following this, the Constitutional Court, in its decision 452/89, gave its ruling on article 81.2 of the service regulations of the National Republican Guard, declaring it contrary to the Constitution, as decided by the Constitutional Commission.
83. Article 81 of the regulations provided that in regard to nomads (an expression not deemed to be unconstitutional by the Constitutional Court), the National Guard should exercise particular surveillance over caravans and groups of nomads habitually travelling the roads, living from commerce or other activities associated with an itinerant life. The Guard maintains surveillance of their travels so as to prevent the perpetration of crimes against property or people in the countryside and public places where the caravans usually stop. Article 81.2 also provided that, in case of suspicion, searches could be carried out in caravans on the road or at resting places, always identifying the leaders of the groups. When the destination of a journey was known to an agent of the Guard, it was his duty to inform the commander of the arrival duty station.
84. The Constitutional Court decided that night searches without a judicial warrant were unconstitutional; the regulations of the National Guard were therefore judged to be unconstitutional on this point (this decision was also analysed in Portugal's previous report (CERD/C/179/Add.2 of 31 October 1990, in paragraphs 50 to 54)).
2. Administrative jurisprudence
85. The Administrative Court of First Instance of Porto examined the regulations of the municipality of Vila do Conde which required all Gypsies with no official residence to report their arrival in the area of the municipality, and to leave it within eight days. This measure gave rise to strong indignation in the press and sharp reactions of disapproval on the part of the Procurator-General of the Republic and the Ombudsman.
86. Following these reactions, the municipality adopted new regulations, revoking the old ones, stressing that the new text was aimed at anyone, whether or not they were Gypsies, who put up any clandestine form of housing, stating that such housing should be destroyed. The Public Ministry contested this act which continued to be illegal because in reality it was aimed at the Gypsies, and in this sense violated the principle of equality.
87. The Court did not refer to the problem of the Gypsies as such, but to the question of the invalidity of the administrative act. It decided, however, that the essential problem was that of the persons affected by the act, the order to destroy housing and the impossibility of rebuilding it in any other place in the area of the municipality. The central point of the decision was that the act, too general and abstract, could therefore not have force of law because it was impossible to identify the persons at whom it was directed; hence, the act was null and void.
88. To summarize the Court's decision, an administrative act which is not based upon an individual situation and which does not in itself single out the individual to whom it is intended to be directed is null and void because the essential element of identification is missing. Reference to persons putting up housing does not correspond to the individualization required by the second paragraph of article 124 of the Code of Administrative Procedure. The result was that the Gypsies were not expelled.
3. Supreme Court of Justice
89. The last decree of the Supreme Court of Justice, of 21 September 1994, is also important. The District Court of Lamego convicted a Gypsy woman for drug trafficking; in the grounds of the conviction it was stated, and implemented in practice by this tribunal, that the sentence should be augmented because the woman was a Gypsy; indeed, as it was said: "Gypsies have a natural tendency to drug trafficking - it is part of their customs and traditions".
90. The decree of the Supreme Court affirmed that a notorious fact is a question of law and may therefore be examined by the Supreme Court of Justice. The Supreme Court then ruled that it is not general knowledge and it is not obvious that Gypsies have a greater inclination to drug trafficking than any other ethnic group. The decision of the court of first instance was therefore illegal since it founded part of the punishment on the fact that the woman was a Gypsy. The decision was revoked in regard to the part concerning the augmentation of the sentence.
91. Between the submission of the last report and the present report, the situation in South Africa has undergone a radical transformation with the commencement and consolidation of a process of political transition in that country, initiated in February 1990 with the liberation of Mr Nelson Mandela, and culminating in the holding of the first democratic and multiracial elections on 27, 28 and 29 April 1994 and the subsequent formation of a Government of national unity with an ANC majority.
92. Between 1990 and 1994, the period during which the Government of Mr Frederik de Klerk lifted the state of emergency and the segregationist legislation that was still in force, the European Community and, naturally, Portugal, made every effort to support the measures and mechanisms gradually imposed to bring about political opening, respect for human rights and equality between South Africans.
93. To this end, the European Community took some timely decisions of a political nature, such as the lifting of economic sanctions by the Community and cessation of discouragement of cultural, sporting and scientific contacts with South Africa. At the same time, the substantial financial contribution of the Community to the Special Programme for the victims of apartheid, destined to support projects with an important social impact, must be stressed.
94. On the occasion of the elections in April 1994, having regard to the historical and cultural ties that have always linked Portugal to the continent of Africa, and to the size of the Portuguese community in South Africa, it was considered to be in the national interest to send a group of Portuguese observers to take part in the global international surveillance mission coordinated by the United Nations.
95. The Portuguese Government is conscious of the serious deficiencies by which many South Africans continue to be affected, especially the black majority, principally in terms of employment, housing, education, health and vocational training. Both internationally and within South Africa, Portugal has always most strongly condemned all racially based practices of discrimination, notably by encouraging the Portuguese community in South Africa to support the construction of the "Rainbow Nation" and to play an active part in it.
96. As has already been affirmed, the Portuguese Constitution proclaims the principle of equality and non-discrimination and prohibits associations drawing inspiration from fascist ideology, that is, which adopt, defend or disseminate values such as colonialism or racism.
97. The new Penal Code, adopted by decree-law 48/95, of 15 March 1995, and which came into force on 15 October 1995, deals in article 132.2, section (d), with homicide qualified by racial, religious or political hatred; in article 159, with slavery; in article 239, with genocide; in article 240, with racial discrimination; in article 251, with insult on account of religious belief; in article 254, with profanation of a body or burial place; in article 297, with public incitement to crime; in article 298, with public apology for crime; in article 299, with criminal association; and in articles 300 and 301, with terrorist organizations and terrorism.
98. This condemnation of racism is to be found in the text of the Constitution (art. 160, para. 1, section (d)), when it deals with the status of deputies, and the law which complements that statute (laws 7/93 of 1 March and 24/95 of 18 August). It is stated there that deputies who receive a judicial conviction for participation in organizations with a fascist ideology shall lose their seats. Up to the present, no case of this kind has occurred in Portugal.
99. Article 46.4 of the Constitution in turn prohibits armed associations of a military, militarized or paramilitary type, and racist organizations or organizations that follow a fascist ideology. Law 64/78, on fascist organizations, prohibits inter alia the formation of organizations proclaiming violence or defending fascism, that is to say, "the adoption, defence or dissemination of values, principles, institutions or methods ... in particular, warmongering, violence as a form of political combat, colonialism, racism ...".
100. It is necessary here to touch upon decree 17/94 of the Constitutional Court, published in the Official Journal, 2nd series, of 31 March 1994. The Procurator-General of the Republic called for the dissolution of the organization known as the "National Action Movement" (MAN) because it followed the fascist ideology. The ordering of this inquiry was mentioned in Portugal's last report (CERD/C/179/Add.2, para. 80). The Procurator-General alleged that the cultural association "National Action" founded in 1985 had as its aim the establishment of a "nationalist State". It had also published journals entitled "Action", "Offensive", "Manifesto", "Programme Points", "Statutes" and "Vanquish". Its main characteristics were the cult of the national community, the prevalence of its interests over the interests of individuals and the cult of racial and bodily purity, order, discipline and hierarchy; it drew its inspiration from Hitler's Germany, Mussolini's Italy and the Portugal of Oliveira Salazar. Racist and anti-semitic, the symbols of this association were the raised arm salute, the Celtic cross and the swastika.
101. "National Action" advocated violent means. From 1985 to 1989 it grew and associated itself with the totalitarian movement of the skinheads and with foreign parties having the same ideology. The appeal for violence was the culminating point of its action. The death of a known militant of the Revolutionary Socialist Party, on 27 October 1989, was associated with the organization; some people thought the murder had been committed by members of it (see Part 1, paragraphs 41 to 43, on this affair).
102. The organization objected, refuted several points in the allegations made by the Procurator-General of the Republic and declared that it had been dissolved by decision of its president at the beginning of the 1990s. The Constitutional Court considered the extinction of the National Action Movement to be proved, searches having been made in 1991 by the judicial police. And it considered that links with similar foreign parties and attribution of acts of violence to the organization were not proven. Moreover, having considered that the organization had ceased its activities, there was no longer any reason to declare it to be fascist, since its extinction preceded the declaration of fascism and rendered it pointless. This does not mean that the death of the Revolutionary Socialist Party militant went unpunished, the author of this crime having been convicted. This means that the Court, verifying that the organization was defunct, could not put an end to it, nor initiate the penal proceedings that would have taken place if the organization had been in existence.
103. The serious events of 10 June 1995 mentioned in the first part of this report (paras. 46 to 48) as being committed by skinheads appear to give the lie to the Constitutional Court's decision, in that the skinheads were still keeping up their activities. But this time, the skinheads were arrested and tried and given heavy prison sentences; six of them were sentenced to 18 years' imprisonment.
104. Mention must now be made of recommendation 72/A/96 of the Ombudsman ("Provedor de justiça") in case R-2331/96 (in this connection, see paragraph 50 in Part 1). In August 1996, the mayor of Vila Verde ordered the demolition of Gypsy dwellings under strong pressure from the people who accused the Gypsies of drug trafficking. The Prefect of Braga, the district in which Vila Verde is located, immediately opposed this measure and took the matter to the Ombudsman. The affair gave rise to considerable agitation among the people and aroused indignation among Portuguese intellectuals, all of whom supported the Prefect of Braga.
105. The Ombudsman's recommendation was as follows:
It is recommended:
The affair is currently running its course before the courts, as we have seen in paragraph 51 of Part 1.
106. In the four previous reports (CERD/C/101/Add.8, CERD/C/126/Add.3 and CERD/C/179/Add.2), we have described the existing legal framework and the different legislative and administrative measures to constitute a system prohibiting any form of racial discrimination in regard to the right to equal treatment before the courts and any administrative organ, the right to personal security and protection by the State against assault and ill-treatment, and respect for political rights and economic, social and cultural rights.
107. At the same time, following Portugal's ratification of the two international covenants on human rights, the submission of report to the organs of control created by these instruments has taken its natural course - such, for instance, was the case of the second report on the application of civil and political rights (CCPR/C/42/Add.1), submitted in November 1989.
108. This report gives a more detailed analysis of the measures adopted to give effect to the provisions of the Covenant and to paragraphs (a) to (d) of article 5 of the Convention on the Elimination of All Forms of Racial Discrimination.
1. Constitutional provisions
109. As already affirmed, the principle of equality, foreseen in article 13 of the Constitution, is once again the essential foundation for the whole of the existing legal framework. This article has not suffered any amendments following the second revision of the Constitution.
110. Article 20 in turn guarantees the principle of access to justice, covering, on the one hand, the right to information and, on the other hand, the right to legal protection. This provision was substantially altered in the fourth revision of the Constitution (1997). The new text of article 20 is given below:
The main changes concern paragraphs 2 (right to be accompanied by a lawyer before any authority), 3 (confidentiality of justice), 4 (judgement within a reasonable time and by an equitable procedure) and 5 (judicial procedures characterized by speed and priority). Paragraphs 3, 4 and 5 are entirely new.
2. Access to justice
111. In the comments on article 2 (paras. 72 to 78 above), mention was made of the legislation relating to access to justice (decree-law 387-B/87, of 29 December, and decree-law 391/88, of 26 October, as well as law 46/96, of 3 September). The system instituted aims to guarantee that "no-one shall be in difficulty or be prevented, by reason of their social or cultural condition, or for lack of economic resources, from knowing, asserting or defending their rights" (art. 1 of decree-law 387-B/87).
112. The law provides that these objectives shall be attained by systematized actions and mechanisms of "legal information", on the one hand, and "legal protection", on the other hand. Legal protection has two modalities: legal aid and legal consultation (article 6 of decree-law 387-B/87). Persons without sufficient resources to pay their defenders' fees and to cope, in whole or in part, with the costs of justice, have the right to legal protection (art. 7, para. 1).
113. We have seen (paras. 74 to 78) that foreigners and stateless persons also enjoy the right to legal protection, a right that is also accorded to non-resident non-nationals in irregular situations, provided they fulfil the prerequisites (law 46/96 of 3 September).
114. Legal aid comprises partial or total exemption from payment of the costs of justice, or their suspension, and payment of the services of a defender (lawyer or solicitor), the State ensuring payment of these expenses. This system applies to all courts, regardless of the procedure followed. Legal aid may be requested at any stage in the case and is maintained in appeals procedures, independently of the decision on the substance of the case and extends to all procedures additional to those for which the aid was granted.
115. In the same spirit, a protocol was established between the Ministry of Justice and the bar in 1986, to set up a legal consultation bureau with offices located at the time in Lisbon and Porto. This bureau offers guidance and legal advice free of charge to all persons who do not have the means to engage a lawyer. Legal consultations are provided by lawyers or trainee lawyers who must take account of the ethical rules established by the bar. We have seen (para. 73) that there are now eleven such offices, located in the main cities of Portugal.
3. The "Provedor de Justiça" (Ombudsman)
116. Article 23 of the Constitution stipulates that citizens may turn to the "Provedor de Justiça" (Ombudsman) on account of actions or omissions by the public authorities. One example is the case of the Gypsies of Vila Verde which we have already mentioned (paras. 50, 104 and 105). Strengthening this concern for the right to equal treatment, the Constitution stresses the independence of the Ombudsman, mentioning it expressly in paragraph 3 of article 23: "The Ombudsman is an independent organ, designated by the Assembly of the Republic". Paragraph 4 of the same article establishes that the organs and agents of the public administration must cooperate with the Ombudsman in carrying out his mission.
4. Administrative jurisdiction
117. Another reflection of this concern for equal treatment is paragraph 10 of article 32, amended in the fourth revision of the Constitution. It is established here that persons accused in procedures for administrative offences, and any other procedure involving sanctions, must be assured of the right to a hearing and a defence.
5. Right to petition and right of actio popularis
118. Article 52 of the Constitution, which was also amended in the fourth revision of the Constitution, provides as follows:
(b) defending the property of the State, the autonomous regions and the local authorities".
119. Actio popularis, foreseen in the Constitution, had never been regulated. However, it was to be found with direct applicability in cases of habeas corpus (detention for more than forty-eight hours and preventive detention not corresponding to the requirements of the law). The law on guarantees for women's associations makes provision for it, granting it to the associations for the protection of the women involved. But doubt remained as to whether it was possible, because it was foreseen, or not yet possible because the clause providing for it did not yet have any means of direct applicability.
120. Law 83/95, of 31 August, on the right to participation in procedure and the right to actio popularis resolves this problem, allowing such action where it is foreseen by the law (this is the case of the law on women's associations), and in cases relating to public health, the environment, the quality of life, protection of the consumption of goods and services, the cultural heritage and the public domain.
121. Other than in the case of habeas corpus and all cases brought by persons against whom penal action has been illegally initiated, actio popularis would not appear to have any justification in the case of crimes, since the victims are taken in hand, in the direction of the penal proceedings, by the Public Ministry. However, since for certain crimes, which would appear to include crimes against public health, the environment, consumers, and other designated fields, the possibility of bringing a complaint is extended to all, and it would appear that the law brings special support to this type of complaint in the penal sphere.
122. Actio popularis has a profound administrative and civil significance, associated in the latter case with direct applicability of fundamental rights in relations between citizens. Actio popularis also has extremely important technical significance. This consists in the attribution of legitimacy for the initiation of legal proceedings to persons not possessing titularity of interest to act. It permits physical persons to intervene in the domains foreseen by the law.
123. In regard to legal entities, actio popularis also permits intervention for the sake of collective interests and disseminated interests, but it lays down one condition (art. 2, para. 1 of law 83/95): the associations and foundations that intervene to defend an interest, although they may be without interest in acting, must be injured in the sense that the interest they are defending must figure in the aims set out in their statutes.
124. It may be asked whether commercial firms can intervene. It would appear that they can if the interest figures in their statutes. In any case, commercial traders can always form associations or foundations with the aim of defending their interests or the interests of trade, and exercise actio popularis if these interests are in conformity with the definition of the interests for which the actio popularis foreseen in paragraph 2 of article 1 is allowed.
125. The law provides for the objective responsibility of any person infringing the rules relating to the protected interests (art. 23), and insurance is required for any dangerous activity.
6. Responsibility of the Administration and guarantees of those administered
126. In regard to the responsibility of administrative agents, the law on the revision of the Constitution has maintained article 266 under the heading "Fundamental principles" [of the Public Administration]:
127. In the domain of guarantees of citizens in regard to acts by the administration, paragraphs 4 and 5 of article 268 of the Constitution have been amended:
128. With regard to the right to information and access to administrative data on the part of citizens (paras. 1 and 2 of article 268), paragraph 6 provides that the law shall establish the maximum period within which the Administration must respond.
7. Code of Administrative Procedure
129. With regard to administrative law and citizens' guarantees, the 1990s have seen the appearance of the new Code of Administrative Procedure (decree-law 442/91 of 15 November and decree-law 6/96 of 31 January), legislation on guarantees of exemption of the Public Administration (decree-law 413/93 of 23 December) and clarification of certain aspects of discipline in regard to access to documents of the Public Administration (law 8/95 of 29 March).
8. Code of Penal Procedure
130. Lastly, the most striking features of the Code of Penal Procedure, adopted by decree-law 78/87 of 17 February and which came into force on 1 January 1988, concerning non-discrimination, have been retained. According to the Code, the accused, that is, the person against whom a criminal charge has been formulated (art. 57), should see the exercise of procedural rights and duties assured (art. 60), with recognition of the right to be present at the acts concerning him directly, to choose a defender or request the court to appoint one, to be assisted by a defender in all the acts in which he participates, to be informed of his rights by the judicial authority or organ of the criminal police before which he has to appear (art. 61).
131. Furthermore, according to article 92, "in cases where a person who does not know or have adequate mastery of the Portuguese language is involved in the proceedings, a suitable interpreter is appointed, with no charge, even if the authority presiding over the act or one of the participants in the proceedings knows the language being used".
132. Portugal has recently submitted to the United Nations the report prepared pursuant to article 19.1 of the Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment (CAT/C/25/Add.10) which was examined at the nineteenth session of the Committee against Torture, on 13 November 1997. Portugal therefore refers to that report, while stressing that a new report will be submitted to the Committee against Torture in the near future.
133. Three important articles of the Constitution, articles 27, 28 and 30, were examined during the last revision of the Constitution:
(a) Paragraph 4 of article 27 is maintained, establishing that everyone who is deprived of liberty must be informed, promptly and in a manner that is comprehensible, of the reasons for the arrest or detention, and of his or her rights.
(b) Paragraph 2 of article 28 is maintained in its global sense, but has been modified; it now reads: "Preventive custody shall be the exception, and shall not be decreed or maintained when bail or some other more favourable measure that is available under the law can be applied.".
(c) Finally, paragraph 5 of article 30, which remains unchanged, provides that: "Condemned persons who are subjected to a sentence or a security measure involving the deprivation of liberty remain entitled to their fundamental rights, subject to the limitations that necessarily derive from that conviction and from the requirements for its enforcement.".
134. The fourth revision of the Constitution changed the title of article 15, which now reads: "Aliens, stateless persons, European citizens". The text has not been altered, and reads as follows:
135. Aliens and stateless persons temporarily present or residing in Portugal enjoy the same rights and are subject to the same duties as Portuguese citizens. Political rights in general, the exercise of public functions not of an essentially technical nature and the rights and duties reserved for Portuguese citizens are excepted from this regime of equality. The law nevertheless provides for the faculty to elect and be elected in municipal elections for nationals of certain countries.
2. Local elections
136. With regard to the capacity to elect and be elected, law 50/96 of 4 September has amended article 2, paragraph 2(a) of decree-law 701-B/76 of 29 December - the electoral law for local communities - which foresees a list to be published by the Government before every electoral act for the organs of municipal authority. Declaration 2-A/97 established that Portuguese citizens and nationals of the European Union, Brazil and Cape Verde, Argentina, Israel, Norway, Peru and Uruguay may vote and that nationals of Portugal, the European Union, Brazil, Cape Verde, Peru and Uruguay may be elected. It is also possible for certain rights of a political nature to be granted to citizens of Portuguese-speaking countries by means of a convention between Portugal and these countries.
137. The number of foreign nationals registered on the lists of the last electoral roll (1997 - elections for the local authorities on 14 December 1997) amounted to 3158 nationals of countries of the European Union and 11 427 citizens of other origins.
3. Nationality
138. Nationality must also be taken into account. The relevant legislation comprises law 37/81 of 3 October, the law on nationality, amended by law 25/94 of 19 August 1994; and decree-law 321/82 of 12 August, regulations on nationality, amended by decree-law 253/94 of 20 October.
139. The following are considered to be of Portuguese origin: children of a Portuguese father or mother born on Portuguese territory or under Portuguese administration, or abroad if the Portuguese parent is there in the service of the Portuguese State; children of a Portuguese father or mother born abroad if they declare that they wish to be Portuguese or register the birth with the Portuguese civil registry; children born on the territory of Portugal, children of foreigners resident with a valid residence permit for at least six or ten years, depending on whether they are nationals of Portuguese-speaking countries or other countries, provided they are not there in the service of their State of origin and if they declare that they wish to be Portuguese when they do not possess any other nationality.
140. This means, among other important points, that persons born in the Portuguese-speaking countries before the independence of those countries have Portuguese nationality. The law does not deprive them of this nationality, establishing in article 1, paragraph 2, that newborns in those territories are presumed to have been born on Portuguese territory or under Portuguese administration in the absence proof to the contrary.
141. This has been very important for persons resident in Africa wishing to return after decolonization, their nationality having been maintained by decree-law 308/A/75 of 24 June. This also means that the children born in Macao up to the moment of transfer of its administration to China will be able to have Portuguese nationality.
142. In addition to this acquisition of nationality by origin, the law provides for the acquisition of nationality by the desire to do so. Nationality may thus be acquired through marriage with a Portuguese national, adoption and naturalization. In the latter case, when the subject is legally of age, has resided in the Portuguese territory for six or ten years (depending on whether he or she is a national of a Portuguese-speaking country), knows the Portuguese language, proves the existence of a link with the Portuguese community, is of suitable civic comportment, is able to care and provide for himself or herself, he or she may apply for naturalization.
143. These aspects of the acquisition of nationality are important in so far as they accord a special privilege to nationals of the Portuguese-speaking countries, who could be affected by discriminatory legislation.
144. This is confirmed by article 9 of law 37/91 on opposition to the acquisition of nationality. Grounds for opposition are the fact that the applicant cannot demonstrate a link with the national community, the commission of a crime punishable with a sentence of more than three years or the exercise of public functions or the accomplishment of compulsory military service for a foreign State.
145. An important feature of Portuguese legislation is that there is no provision for loss of nationality. Nationality once acquired cannot be lost, which means that Portuguese society does not reject its members. No-one can be banished, which is a fundamental guarantee against the application of discriminatory motivations in the process of acquisition of nationality.
1. The right to freedom of movement and choice of place of residence within the country
146. An important factor affecting all the rights of non-Portuguese nationals is the regime governing their entry and stay in Portugal. To this must be added the right of asylum, although this is a political right. The accession of Portugal to the European Community has naturally imposed a legal definition of conditions of entry, stay and departure from the territory for nationals of member States and members of their families, and imposed a distinction between non-nationals originating from a country of the European Union and non-nationals originating from third countries.
(a) Identification procedure
147. The first question that arises is the identification of a person, either at border posts or within the country. Within the country, identification is carried out in accordance with law 5/95, of 21 February, which establishes the duty to carry an identity document. Under article 1, agents of authority or of the security services may demand identification of any person present or moving in a public place, or a place open to the public or subject to police surveillance, whenever there are grounds for suspicion that crimes may have been committed against the life and integrity of persons, peace and humanity, the democratic order, the values or interests of life in society or the State, or doubts regarding the entry or irregular stay of that person on Portuguese territory, or if proceedings for extradition or expulsion are under way. It would appear that it is only possible to demand identification when such a doubt exists. There is a link between all the measures for identification and criminal law, on the one hand, and illegal entry to the country, on the other hand.
148. Agents may only demand identification after having shown proof of their status and informed the person in question of his or her rights, the specific circumstances justifying the demand for identification and the various means by which the person may identify him or herself. Omission of this duty to provide information renders the order for identification null.
149. Under article 2 of law 5/95, citizens aged over sixteen years must carry an identification document whenever they are in public places, places open to the public or subject to police surveillance. This document may be the identity card or passport, for Portuguese citizens, the residence permit, alien's identity card or passport for nationals of the countries of the European Union, and the residence permit, alien's identity card or passport for foreign nationals of third countries.
150. If identification is impossible or refused, there is ground for an identification procedure that consists in taking the person to the nearest police station, where he or she will remain strictly for the time required for the identity check, which may in no case exceed two hours. A compulsory record of the identification procedure shall be written in cases of refusal, while a record need not be kept in other cases, where the person to be identified so requests. Where a record is taken, one copy is given to the person identified and one copy to the Public Ministry.
151. The identification procedure is always communicated to a person of confidence of the person retained where he or she so requests; thus, a person retained for a maximum of two hours for identification may ask for a person of confidence to be contacted immediately, although he or she will not be permitted to do this personally.
152. The procedure must, as soon as possible, be replaced by identification by a third party, duly identified and able to guarantee the veracity of the personal details; by bringing the person to be identified into the presence of a person of confidence so that he or she may present the means of identification; or by accompanying the person concerned to the place where his or her identity documents are. Only when it is not possible to proceed to any of these modes of identification will it be necessary to proceed to detention for identification for not more than two hours, with the possibility of taking a record. The law on identification provides for the possibility of communicating with a lawyer. In other cases, the rules of penal procedure are applied (art. 254 et seq. of the Code of Penal Procedure), which allow a detainee to communicate with his or her lawyer.
153. Under article 254 of the Code of Penal Procedure, the object of detention is to bring the detainee before a judge within forty-eight hours, or immediately in a procedural act. In the second case, detention may only be effected by judicial mandate. There is always the possibility of consulting a lawyer, and aid from third parties is also possible (actio popularis), whenever the detainee is detained for more than 48 hours (habeas corpus).
154. Under article 261 of the Code of Penal Procedure, the detainee is immediately released when it becomes clear that detention of that person was by mistake or outside the scope of cases where legally permissible, or that the measure has become unnecessary.
(b) Entry, stay and departure of foreigners
155. Decree-laws 59/93 and 60/93 of 3 March regulate the regime for the entry, stay and departure of foreigners who are nationals of non-Community and Community countries. Decree-law 59/93 is the most important for foreigners who are not citizens of a country of the Union. A foreigner is a person who does not possess Portuguese nationality; a resident is a person who possesses a valid permit for residence in Portugal.
156. Foreigners who wish to enter the national territory or to leave it must do so at the frontier posts qualified for this purpose. To enter or leave the national territory, foreigners must be bearers of a passport valid beyond the duration of their permitted stay; for entry, they must also have a valid visa; they must also be in possession of means of subsistence corresponding to the length of their stay in Portugal.
157. Foreigners whose names appear on a joint list (European Union) or a national list (drawn up by the Aliens and Frontiers Department) of persons who may not be admitted because they have been expelled from the country or given a custodial sentence of not less than one year, or who are strongly suspected of having committed a serious offence, or who are a threat to public order, national security or the international relations of a Member State of the European Union are forbidden from entering Portugal. The inclusion of a foreigner on the joint list depends on a decision by the competent bodies of a Member State of the European Union.
158. Citizens who are not nationals of a Member State of the European Union who enter the country at a border post where there is no control, coming from another Member State, are required to declare their entry within three working days of their arrival. This declaration must be made to the Aliens and Frontiers Department, the Public Security Police, the National Republican Guard or the Fiscal Guard.
159. Shipping companies or airlines that carry a passenger or crew member whose entry is refused to the national territory must provide for their immediate return to the point at which the journey was commenced, or, if that is not possible, to the State where the travel document was issued, or to any other point where they may be admitted.
(c) Visas
160. Visas issued to foreigners are diplomatic, service or consular visas. Consular visas are for transit, work (for a relatively short duration; foreigners who wish to immigrate to work must apply for a residence visa and furnish proof of a contract of work or proposal of work, and of accommodation), short stay, study and stopover. Residence visas are always subject to prior consultation with the Aliens and Frontiers Department, and family reunion is a factor in favour of the issuing of a residence visa.
(d) Travel documents
161. The travel documents issued to foreigners are governed by decree-laws 438/88, of 29 November, and 267/89, of 18 August, and to refugees, by law 38/80 of 1 August.
(e) Residence permits
162. Application for residence permits must be made to the Aliens and Frontiers Department. An accommodation certificate must be filled in to permit control of the presence of foreigners in Portugal.
(f) Expulsion of foreigners
163. Foreigners may be expelled from the national territory. Under article 67, irregular entry or stay on the national territory, violation of national security, public order or public morals, the fact that presence or activity in the country is a threat to the interests or dignity of the Portuguese State or its nationals, abusive interference in the rights of political participation reserved for Portuguese citizens, infringement of Portuguese laws relating to foreigners, and engaging in acts that would have been an obstacle to entry into the country, are grounds for expulsion.
164. The