Portugal - Ninth Periodic Reports of States Parties due in 1999 - Addendum to Reports submitted by States Parties under Article 9 of the Convention [2000] UNCERDSPR 15; CERD/C/357/Add.1 (4 October 2000)

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UNITED NATIONS		CERD
	International Convention on the Elimination of all Forms of Racial Discrimination	Distr. GENERAL CERD/C/357/Add.1 4 October 2000 ENGLISH Original: FRENCH

* This document contains the ninth periodic report of Portugal, which was due on 23 September 1999. For the fifth, sixth, seventh and eighth periodic reports of Portugal, (combined) in one single document, and the summary records of the Committee meetings at which those reports were considered, see documents CERD/C/314/Add.1 and CERD/C/SR.1311 and 1312.

The annexes provided by Portugal are available for consultation in the secretariat files.

II. Translation of Act No. 15/98 of 26 March, entitled “A new legal regime in respect of

III. Reply to the questionnaire prepared under Commission on Human Rights resolution 1999/78

recommendations made by the Committee on the Elimination of Racial Discrimination following the submission of the fifth, sixth, seventh and eighth periodic reports of Portugal in March 1998 in a single document (CERD/C/314/Add.1). Given the short amount of time between the Committee’s consideration of the eighth report and this one, our main consideration in this report is to update the information contained in the last report.

Committee on the Elimination of Racial Discrimination (CERD/C/304/Add.67 of 8 April 1999), the present report will deal with demographic data concerning the Portuguese population, Portugal’s efforts to guarantee the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination and developments in jurisprudence and recent legislation on racism and racial discrimination.

3. As far as the general situation relating to demographic composition is concerned, the reader is referred to the last report submitted by Portugal (CERD/C/314/Add.1, paras. 6-22). The Constitution has not been amended since the submission of that report. On the basis of the constitutional principle that no distinction may be made on the basis of the origin, religious beliefs, political ideas and race of citizens, it is rather difficult to give an indication of the demographic composition of the Portuguese population by referring to the number of persons belonging to a particular ethnic group. Only some imprecise data exist, particularly with regard to the Gypsy population, the only group which can be distinguished from the Portuguese population as a whole. It has, moreover, never been necessary to compile data relating to the demographic composition of the country.

4. The Portuguese population is homogeneous in the sense that no distinction is made between races, which have mixed and crossbred for centuries. Historically, there has been a Celtic, Iberian, Roman, Carthaginian, Visigoth and Arab presence, as well as a strong Sefardic Jewish presence, and these groups have all mixed in with the rest of the population. Since the time of the maritime expansion (fourteenth-sixteenth centuries) and overseas colonization, communities of all origins have also mixed in with the Portuguese (this was a two-way flow: new ethnic groups came to Portugal and became racially mixed and Portuguese voyagers travelled to all parts of the world). The problems of racism and xenophobia that have recently been observed have no effect on this situation, since they have arisen out of movements which are on the fringes of society and are associated with extreme ideologies.

5. With regard to the demographic composition of the population, we can only repeat what was stated in paragraph 16 of the eighth periodic report (CERD/C/314/Add.1), namely, “that there are about 40,000 Portuguese citizens who may be considered to be Gypsies”. This figure is certainly not very precise, but it is a demographic statistic in the sense that it indicates the probable number of citizens belonging to the Gypsy ethnic group, Gypsies being the only Portuguese citizens who form a separate and thus possibly quantifiable population group.

6. Following the events which took place in Guinea-Bissau in 1998 and in Kosovo in 1999, the Portuguese Government decided to grant temporary protection to Guinean citizens (Council of Ministers decisions Nos. 94/98 of 14 July and 90/99 of 12 August relating to the reception and departure of Guinean citizens) and to Kosovars who were arriving from their country of origin, whose physical integrity was directly threatened and who did not have any other means of protection in their region of origin; this protection was to last as long as armed conflicts and violations of human rights prevented them from returning to their country. These particular cases show that Portugal is committed to humanitarian action as far as receiving refugees from regions in conflict is concerned.

7. With regard to the situation of Guineans, 5,210 residence permits were applied for under Council of Ministers decision No. 94/98, divided up as follows: 5,046 in Lisbon, 32 in Coimbra, 81 in Porto and 51 in Faro. Between 14 July 1998 and 15 July 1999, 2,163 residence permits were granted: 2,013 in Lisbon, 32 in Coimbra, 81 in Porto and 37 in Faro. Two hundred and one of these citizens returned to their country under Council of Ministers decision No. 90/99 of 12 August (of these 201 persons, only 97 benefited from temporary protection).

8. As far as Kosovars are concerned, 1,272 persons were taken in by Portugal between 6 May 1999 and 9 June 1999. Nine persons were born in Portugal, 988 returned to Kosovo, 117 continue to reside in Portugal and 167 cannot be located.

9. The statistical report for 1998 prepared by the Aliens and Frontiers Department, which is responsible for the reception, stay and departure of foreigners, is annexed to this report*. On 31 December 1998, the number of foreign residents was 177,774, i.e. an increase of 1.4 per cent compared to 1997. Although an upward trend continues, it may be seen that percentage increases in the foreign population in 1996 (2.7 per cent), 1997 (1.3 per cent) and 1998 (1.4 per cent) have been the lowest since 1981. The two main groups within this foreign population have followed the same trend, i.e. residents from the European Union and the Community of Portuguese-Speaking Countries (CPLP), which, on average, account for about 82.2 per cent of all foreign residents.

10. The distribution of foreigners residing in Portugal has not changed significantly

since 1998. The trend continues to be that most reside in the district of Lisbon, which hosts more than 55.2 per cent of the total. The district of Faro follows with comparatively fewer

people (about 13.0 per cent), but with an increase over 1997 of 0.3 per cent. Then follow Setu′bal, with 9.2 per cent, Porto, with 6.1 per cent and Aveiro, with 3.9 per cent of residents. The Braganςa region, with 0.15 per cent, has the smallest number of foreigners.

11. Although there has been a percentage decrease since 1996 (47 per cent) and 1997 (46.6 per cent), residents from the African continent continue to make up about 46.4 per cent of the overall total. Residents from the European Union account for 27.1 per cent, as compared with 25.3 per cent in 1996 and 26.3 per cent in 1997, thus showing a significant increase. The Asian continent is the least represented, with only 4.2 per cent of residents (3.6 per cent in 1997).

12. With regard to gender distribution, there are more male residents, despite a trend towards an increase in the number of female residents in 1998. In 1996 males made up 58.4 per cent and females 41.6 per cent; in 1997 the figures were 58.3 per cent and 41.7 per cent, respectively, and, in 1998, 58.1 per cent and 41.9 per cent. As to distribution by continent, 15.8 per cent of male foreigners and 13.5 per cent of female foreigners come from Europe; 28.5 per cent and 17.8 per cent are from Africa; 11.1 per cent and 8.6 per cent are from the Americas; and 2.4 per cent and 1.7 per cent come from Asia.

13. As far as occupations are concerned, as in 1997, there is a bias on the part of new residents, particularly with regard to “scientific, artistic, technical and other occupations”, which increased by 0.2 per cent in 1998 (in 1996, the figure was 20,571, or 23.7 per cent; in 1997, 21,311 or 24.3 per cent; in 1998, 21,656, or 24.5 per cent) and employment as “workers in mining and processing industries and drivers of fixed and transport machines”, which decreased by 0.5 per cent in 1998 (in 1996, the figure was 42,428, or 48.9 per cent; in 1997, 42,370, or 48.2 per cent; and, in 1998, 42,241, or 47.7 per cent).

14. Taking the overall total figures for the “occupations/working population” sector (in 1996, 86,810, or 53.5 per cent; in 1997, 87,893, or 53.4 per cent; in 1998, 88,603, or 53 per cent) and for the “occupations/non-working population sector” (in 1996, 75,399, or 46.5 per cent; in 1997, 76,661, or 46.6 per cent; in 1998, 78,457 or 47.0 per cent), there have been no major changes. Among the working population, there are 17,130 “employers” and “selfemployed persons”, i.e. 19.3 per cent, whereas 71,473 persons (80.7 per cent) are “employees”. Among the non-working population, students account for 44.1 per cent (34,601) of residents and housewives, for 43.3 per cent (33,986) of residents, i.e. most of this sector. Retired residents number 5,609 (7.1 per cent).

15. By analysing movements throughout 1998, it may also be seen that changes occurred compared with 1997: 6,485 residents (5,776 in 1997) entered the country; 3,304 are male (51.0 per cent) (in 1997, there were 3,070 or 53.2 per cent) and 3,181 are female (49.0 per cent) (in 1997, there were 2,706, or 46.8 per cent). They are mostly from the European Union, with 2,889 entries (44.0 per cent of the total) (in 1997, there were 2,763, or 47.8 per cent), and from Africa, which had a percentage decrease, with 1,692 new residents (29.3 per cent of the total figure) (in 1997, there were 1,231 or 21.3 per cent). It should also be noted that official Portuguese-speaking African countries (PALOP) contributed 1,544 persons (91.6 per cent) to the inflow of African residents; and Brazil contributed 670 residents (73.3 per cent) to the inflow from South and Central America. In this migratory flow, the 25/29 year age-group accounted for the largest number of residents, with 13.5 per cent of total entries.

16. With regard to departures, there have been no significant percentage changes compared with 1997. Thus, 3,974 residents left (3,426 in 1997), of whom 2,156 were male (54.3 per cent) (in 1997, 1,917 were male, i.e. 56 per cent) and 1,818 were female (45.7 per cent) (in 1997, 1,509 were female, or 44.0 per cent). Departures are still, for the most part, departures of persons from the American continent, particularly North and South America, i.e. a total of 1,298 persons (32.7 per cent). Brazilian nationals, with 800 departures (20.1 per cent), and United States nationals, with 630 (15.9 per cent) are in the lead. As far as Venezuelan residents are concerned, departures continue to outnumber entries (445, or 11.2 per cent, as against 141, or 2.8 per cent), in line with a trend observed in past years.

17. It should be added, as stated in the last report (CERD/C/314/Add.1, paras. 20-22 and 59), that, the ad hoc regularization of illegal immigrants took place from June to December 1996. It began with the adoption of Act No. 17/96 and continued through Decree-Law No. 150/96, with the establishment of an umbrella organization, the Bureau for the Ad Hoc Regularization of Immigrants (GREI). Approximately 35,000 persons have been regularized in a process coordinated by the Aliens and Frontiers Department in collaboration with other bodies, particularly trade unions, immigrant associations, municipalities and embassies.

18. During this process, the Aliens and Frontiers Department was in charge of receiving applicants, computerizing and considering applications, preparing draft decisions and issuing residence permits. The final decision before the residence permit was issued was taken by an independent commission, the National Commission for Ad Hoc Regularization (CNRE), made up of a representative of the Ministry of the Interior, a representative of the Ministry of Justice, a representative of the Ministry of Employment and Social Security, a representative of the High Commissioner for Immigration and Ethnic Minorities and a representative of immigrant associations.

19. During the regularization process, 45 reception centres, mostly located in areas where large numbers of illegal immigrants live, were set up together with mobile teams. These centres and mobile teams received 35,082 requests for legalization: 31,117 were declared admissible and 3,965 were rejected. Among those declared admissible, 29,809 were accepted for consideration, 687 were rejected and 547 were filed without further action. These last cases relate to incomplete files, since the applicants could not be located so that the necessary corrections could be made. Although some situations have been resolved in the meantime, 74 files are pending because the European departments corresponding to the Aliens and Frontiers Department have not given any reply about persons in situations indicated in the Schengen information system.

20. Most applications for regularization come from Africans, the largest group of applicants being from Official Portuguese-speaking African Countries (PALOP). Angolans have thus submitted 9,255 applications, Cape Verdeans 6,872, Guineans, 5,508 and persons from SaoTomé-and-Principe, 1,549. Brazilian citizens have submitted 2,330 applications for regularization. It should also be mentioned that 89 per cent of applications, i.e. 30,829, have been received and considered by the Regional Directorate in Lisbon.

21. Following the recommendations by the Committee on the Elimination of Racial Discrimination, Portugal began the process of acceding to the article 14 mechanism and the process of ratifying the amendment to article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination. These processes have not yet been completed, but there is every reason to believe that Portugal will be able to satisfy the Committee on these points.

22. With regard to the dissemination of information on the situation with regard to racial discrimination in Portugal, the Office of the High Commissioner for Immigration and Ethnic Minorities has the following Internet Web site: http://acime.gov.pt. The Bureau of Documentation and Comparative Law of the Office of the Procurator-General of the Republic has also disseminated the combined texts of earlier reports on its Internet site, which, among other things, contains material relating to human rights; the address is: http://www.gddc.pt. The Bureau’s Web site also includes the Portuguese report on the Vienna Declaration, “An assessment of the human rights situation in Portugal in recent years”, as well Portugal’s latest report which has not yet been discussed, on the implementation of the International Covenant on Economic, Social and Cultural Rights. The Bureau is also responsible for a publication intended for all legal professions, particularly magistrates and lawyers, and entitled “Documentação e Direito Comparado”, which contains many texts (doctrine, legislation, international instruments, jurisprudence) relating to human rights.

23. The only one of the cases referred to in the eighth report (CERD/C/314/Add.1, paras. 51, 104 and 105) on which the Ombudsman made recommendation No. 72/A/96, that is still before the courts is that of the Gypsy dwellings in Vila Verde.

24. The people who exerted pressure on the mayor, who then ordered the demolition of the Gypsy dwellings, were accused in court of “terrorist association” by the Prefect of the district of Braga and by the High Commissioner for Immigration and Ethnic Minorities. When suspicions of drug trafficking by the Gypsy population became known, the people established “vigilante groups” to monitor persons entering and leaving the buildings belonging to the Gypsies. Because of such pressure the mayor of Vila Verde ordered the demolition of these dwellings and this led to the recommendation by the Ombudsman referred to in the last report.

25. In conjunction with the High Commissioner for Immigration and Ethnic Minorities, the Prefect of Braga, who tenaciously defended the Gypsies, filed a complaint of “terrorist association” in connection with these acts committed in 1996. Many members of these “vigilante groups” were sentenced by the Court of First Instance for the crime of terrorist association; the penalties were three to four years’ imprisonment.

26. During these events, the Prefect of Braga tried to help the Gypsies find somewhere new to live. While their belongings were being moved, he was booed by the population of two neighbouring villages, Cervães and Francelos, which had taken part in the “vigilante groups”; the Prefect brought charges of assault and defamation. The persons concerned in Cervães publicly apologized to him, but those in Francelos did not.

27. The Public Prosecutor’s department handed down lighter sentences for the inhabitants of Cervães because they made a public apology. Appeals were filed in connection with the crime of terrorist association, for which 20 inhabitants of Francelos were sentenced to three to four years’ imprisonment, as mentioned above. This complex case is under way at present. Attention is drawn to the positive attitude of the Prefect of Braga and the legal and police authorities who were involved in these events.

28. Act No. 15/98 of 26 March (translation annexed[∗]) governs asylum in Portugal. It is of some significance in terms of racism and racial discrimination because it relates in all cases to the reception of foreigners who might be treated in a discriminatory way - something which is not the case in Portugal. Three possibilities for its application are defined:

“The right of asylum is guaranteed to foreigners and stateless persons persecuted on account of activities they have carried out in the State of their nationality of habitual residence in favour of democracy, social and national liberation, peace between peoples, freedom and human rights”.

“A residence permit shall be granted for humanitarian reasons to foreigners and stateless persons who are not covered by the provisions of article 2 and who are prevented from returning to the State of their nationality or habitual residence, or feel that it is impossible to do so, for reasons of grave insecurity resulting from armed conflict or systematic violations of human rights”.

“The State of Portugal may grant temporary protection, for a period not exceeding two years, to persons displaced from their country on account of serious armed conflicts which give rise to large-scale refugee flows”.

Temporary protection, as referred to in part I, was the legal basis for admitting Guineans and Kosovars.

29. Act No. 15/98 is based on the principle of family reunification. Article 4, paragraph 1, reads:

“The effects of asylum may be extended to the spouse and children who are minors, adopted or legally incompetent, at the request of the asylum seeker”.

“Where the asylum seeker is under 18 years old and so requests, the effects of asylum may be extended under the same conditions to his father, mother and minor siblings of whom he is the sole support”.

30. The granting of asylum takes place in two phases. The first is an administrative phase

during which the application for asylum is considered; a decision is taken by the Director of the Aliens and Frontiers Department, with the possibility of an appeal having suspensive effect to the National Refugee Commission. The Commission takes a decision which can also be appealed to the Administrative Court of First Instance, the time limit for the appeal being one week. The final granting of asylum takes place in two phases. The first is an administrative phase during which the application for asylum is considered; a decision is taken by the Director of the Aliens and Frontiers Department with the possibility of an appeal having suspensive effect to the National Refugees Commission. The Commission takes a decision which can also be appealed to the Administrative Court of First Instance, the time limit for the appeal being one week. Once the application has been approved in the administrative phase, the final decision is taken by the Minister of the Interior and a temporary residence permit, valid for 60 days, is issued by the Aliens and Frontiers Department. In the event of an unfavourable decision, an appeal can be filed with the Supreme Administrative Court.

31. The Act provides for social welfare assistance during the asylum proceedings.

32. In Portugal, there is no discrimination against foreign workers. Parliament has, however, believed it necessary to set out the rules relating to work by foreign nationals in new terms, compared to the previous law, Decree-Law No. 97/77 of 17 March, which established that, in enterprises with more than 5 employees, 90 per cent must be Portuguese. Under the new legislation on work by foreigners, Act No. 20/98 of 12 May, an employer may freely employ any worker residing legally in Portugal, regardless of nationality.

33. Foreign nationals who are legally entitled to reside or stay in Portugal enjoy the same working conditions as Portuguese workers in the exercise of their professional activity. However, there are some differences in terms of procedures to be followed in order to formalize their employment contract, depending on whether the foreign worker’s country of origin guarantees equality of treatment for Portuguese workers.

34. Workers who are citizens of member countries of the European Economic Area (including, of course, nationals of European Union countries) enjoy exactly the same treatment as Portuguese nationals. The majority of workers who have emigrated to Portugal are from countries which do guarantee equal treatment for Portuguese workers. When a person is hired, the employer informs the Institute for the Development and Inspection of Working Conditions (IDICT) in writing that an employment contract has been drawn up, indicating the employee’s nationality, occupational category, functions and date of entry on duty (art. 5.1). The employer must also report the cessation of employment, in writing, within a period of two weeks (art. 5.2).

35. Under the terms of the notice on work by foreigners in Portugal, published in Labour and Employment Bulletin No. 17 of 18 May 1999 (first series), most foreign workers are exempted from the requirement of concluding an employment contract in writing.

36. In the case of other foreign nationals and stateless persons, a written contract is required, together with a document proving that the legal provisions on the entry and stay of foreign nationals in Portugal have been respected. The contract is deposited with IDICT. When the working relationship ceases, the employer must report this fact in writing, within two weeks, to the IDICT office with which the contract was deposited (art. 4.4).

37. This procedure does not in any way call into question the principle of freedom to conclude an employment contract with any worker legally resident in Portugal, regardless of nationality, or the principle of equality of treatment in professional activity.

38. The purpose of the new regulations on the entry, stay and departure of foreigners is to strike a balance between good reception conditions for foreigners and Portugal’s commitments in the European Union context. With regard to the stay of foreigners in Portugal, an application for a residence permit may be made by the person concerned or by his legal representative and must be submitted to the Aliens and Frontiers Department. The residence permit depends on possession of a valid residence visa and the absence of any reason which, if it had been known to the Portuguese authorities, would have prevented the visa from being granted and the person concerned from being present in Portuguese territory. The residence permit is either temporary or permanent (art. 82). The temporary residence permit is valid for two years and renewable for the same period of time. There is no limit to the validity of the permanent residence permit; it must, however, be renewed every five years.

39. Residence permits will be renewed for foreigners who have legally resided on Portuguese territory for 10 consecutive years and who have not been sentenced to a penalty or penalties which, either alone or in combination, exceed one year’s imprisonment. A housing form is required for the monitoring of foreigners in Portuguese territory.

40. Act No. 134/99 of 28 August (referred to several times in the reply to the questionnaire prepared by the United Nations in accordance with Commission on Human Rights resolution 1999/78, entitled “Racism, racial discrimination, xenophobia and related intolerance”, annexed[∗] prohibits discrimination in the exercise of rights on grounds of race, colour, nationality or ethnic origin. Under its article 2, it applies to all natural and legal, public and private persons.

41. According to article 2, any distinction, exclusion, restriction or preference which is based on race, colour, ancestry or national or ethnic origin and whose aim or result is to prevent or restrict the recognition, enjoyment or exercise, on equal terms of rights, freedoms and safeguards or cultural, social and economic rights constitutes racial discrimination.

42. Article 4 gives a non-exhaustive list of discriminatory practices, which include:

43. According to article 4, paragraph 2, “It is prohibited to dismiss, sanction or otherwise harm a worker on the grounds that he has exercised a right or taken legal action against a discriminatory practice”.

44. This Act establishes the Commission for Equality and against Racial Discrimination, which is presided by the High Commissioner for Immigration and Ethnic Minorities, and provides for administrative sanctions which do not rule out the possibility of extra-contractual civil liability. It must be interpreted and incorporated in accordance with the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

45. Portugal seeks at all times to ensure the welfare of the persons in its territory. It is trying to combat racial discrimination, with every means at its disposal.

46. Portugal does not regard itself as a racist or xenophobic country. Isolated acts by the population in some parts of the country, which are subject to prosecution, should be perceived not as reflecting racist or xenophobic practices, but as exceptional phenomena, even when they are particularly shocking.

47. The Portuguese population has been regularly mixed and crossbred by successive arrivals of new ethnic groups that have left it with unusual tolerance and respect for differences. As a result of so many centuries of mixing, it is now homogeneous. The only part of the population which has not mixed with other groups is the Gypsy population, which is composed of about 40,000 persons, the only figure on demographic composition that is indicative of a distinction between ethnic groups, since it relates to an ethnic group that is differentiated from the population as a whole.

48. In this ninth report, Portugal hopes to have responded to the suggestions and recommendations made by the Committee on the Elimination of Racial Discrimination. It also hopes to maintain a fruitful dialogue with the Committee that will help improve the situation in Portugal with regard to action to combat racism and racial discrimination.

United Nations Committee on the Elimination of Racial Discrimination - States Parties Reports

Portugal - Ninth Periodic Reports of States Parties due in 1999 - Addendum to Reports submitted by States Parties under Article 9 of the Convention [2000] UNCERDSPR 15; CERD/C/357/Add.1 (4 October 2000)