Portugal - Head of observatory on prisons charged with "offending" prison guard service

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Antonio Pedro Dores, sociologist and professor at Lisbon university and director of the association ACED (Associação Contra a Exclusão pelo Desenvolvimento), which was established in 1997 and runs an observatory on prisons, faces charges of "offending a collective person, body or service" levelled at him by the SNCGP (Sindicato Nacional do Corpo da Guarda Prisional, national trade union of the body of prison guards). ACED is a member of the Coordenadora para la prevención de la tortura network to prevent torture and of the European Civil Liberties Network.

The case against Antonio Pedro Dores

The notice served on 6 March 2008, informing Dores that his case will be heard on 9 December 2008, cites and quotes extracts from a number of reports in Portuguese newspapers dating back to 2004 in which the prison guards service is accused of a number of malpractices including serious abuses against inmates, both in relation to specific incidents and more widespread practices, sometimes resulting in deaths. These have led the Lisbon criminal prosecution and investigation service to initiate proceedings against Dores after accepting the SNCGP's argument that statements by the accused and from the ACED website "caused alarm in public opinion, created collective unrest in prison establishments, increased the danger of revolts and other expressions of indiscipline in prisons". Moreover, the claims are deemed to have "exposed members of the prison guards service to heightened danger against their security", to have "harmed the category and affected" its "credibility, confidence, prestige and image", with the effect of causing prison guards and prison service officials to feel that their honour and reputation were undermined knowingly by the accused.

Dores' defence arguments

The text sent to the third section of the Lisbon criminal court in Dores' defence by lawyer José Preto describes the charge sheet as "grotesque", involving a number of shortcomings and contravening the law. It reminds the court of the prevalence of international human rights law, even at a national level, and of the prohibition against violations of human rights and fundamental freedoms, noting that institutions recognise this prevalence, although they sometimes attempt to resist its provisions through interpretations of requirements. Article 6(c) of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, a UN General Assembly resolution (no. 53/144 of 8 March 1999), is cited to support the argument that the grounds on which Dores is accused contravene international human rights treaties and hence the Portuguese constitution:

"Article 6. Everyone has the right, individually and in association with others:
c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters."

The defence argument is critical of Portugal's failure to adhere to international human rights law in certain judicial proceedings, highlighting the existence of a number of European Court of Human Rights judgements that find Portugal guilty of failing to justify the need for criminal charges for alleged insult or defamation in a democratic context. As for prisons, Preto notes that the latest report published by the Council of Europe's Committee for the Prevention of Torture (CPT) regarding its visit to Portugal in 2003 largely supports some of Dores' findings. The trial is presented as intrinsically flawed and incompatible with human rights law, and the charges as seeking punishment for offering the media information that was requested concerning documented claims of human rights violations, whose existence the State has the "terrible habit" of denying to the Council of Europe.

In direct reference to the charges, Preto notes that the claims by Dores are deemed an "attack against the category of [prison] guards", without denying the truthfulness of the allegations or mentioning any proceedings or investigations into the allegations. Moreover, they are sometimes taken out of context and the negative effects of Dores' claims are described in a very general manner that is very difficult to contradict or prove, namely affecting the "credibility, confidence, prestige and image" of prison guards, undermining their "honour and reputation", causing "alarm in public opinion", exposing guards "to increased [unspecified] dangers", causing "disturbances", without referring to any specific incidents. The prison guards' trade union was not directly accused of anything and Dores' claims were made on the basis of information received from a number of sources.

The defence argues that pressure exerted on the Portuguese media and its sources is greater than that to which media in other European countries is subjected, thus undermining press freedom and placing the country's press at a disadvantage in relation to its competitors abroad. The McCann case, in which the British press criticised the actions of the Portuguese police "as they saw it" is viewed as an example of this, as "something that cannot happen in Portugal", making the country's newspapers "less credible" and thus affecting their sales. This undermines the principle of competition and freedom of enterprise in the media as well as freedom of expression, particularly if the media are not even allowed to let someone qualified (such as Dores, a university professor) "address his fellow citizens without ... constraints". Other matters addressed include:

- the fact that the statute of limitations' two-year deadline for this kind of offence has passed, and that any interruptions and suspensions of this period to extend the deadline cannot be applied "arbitrarily", but rather, must be justified and open to appeal by defendants;

- the claims by Dores were "substantially true", based on information, complaints and material in his possession, and partly supported by findings by UN bodies, the International Observatory on Prisons and Amnesty International, and the latest CPT report on Portugal (published in January 2007);

- the SNCGP does not have the legal personality under public law of a collective body that can bring charges and the facts in question do not constitute any false allegations against it;

- shortcomings in Portuguese judicial practice and culture with regards to international human rights law and the concepts of "honour" and "reputation", and a degree of "supervision" and "regulation" of publications that contravenes the legal philosophical foundations of the system.

The allegations

The charges against Dores are the result of information provided by Dores to Portuguese newspapers and statements issued by ACED containing a number of allegations. These include the questioning of official versions concerning suicides, with extracts included in the notice of proceedings against Dores featuring claims including the following:

From the newspaper Portugal Diario of 19 May and 19 June 2004:

- "many of the suicides that take place in Portuguese prisons" result from guards' actions; "the law is used [to justify] illegal punishments. Prisoners are placed in punishment without knowing why" or for how long, "they are often beaten and placed in punishment" (point 5).

- "inmates" who participated in "'accidents' ended up badly injured or dead. Official versions obviously divert guilt away from officers, those responsible for the centres, the DGSP (prison service directorate) and the justice ministry, who, in a majority of cases punished them, voluntarily or involuntarily, with death" (point 6).

- cases of "prison officers involved in drug dealing in prisons" who set up prisoners to have them under their control, and reports received by ACED, including a case in May 2004 in which a 27-year-old in Alcoentre [prison] was found dead in a punishment cell after his involvement in scenes of violence with other prisoners and guards. The official version alleged death by suicide using strips of fabric ripped from the mattress (point 7).

- in Caxias, a man with a heart condition died in March 2004 after feeling ill and requesting medical aid that he was denied. A Brazilian who claims he was persecuted in the prison system since he was punished using any pretext in Linho prison, and alleges torture, namely lengthy isolation periods, was beaten in Coimbra prison on 8 April resulting in a broken leg and head... in Silves, a detainee who tried to escape was attacked by guards, placed in an isolation cell and made to sleep" with his fists cuffed. In spite of reports implicating prison guards in deaths, no charges whatsoever were brought against them (point 8).

From the newspaper Correio da Manha of 6 June 2006:

-"persecutions, searches and threats are just some of the forms used by prison guards... to make preventive prisoners refrain from carrying out an action scheduled for next Wednesday". Otherwise, "they are told they may be prejudiced as regards torture," amid threats "to implicate inmates in cases of violence or drug dealing in which the guards enjoy a real and concrete impunity" (points 9 and 10).

From the ACED bulletin, SOS Prisoes on 18 July 2004:

- Reports received from prisoners agreed that "the body was found in admission, outside the punishment cell, in an area that is theoretically reserved for phases of transition between different disciplinary regimes and, in practice, repeatedly referred to as a space of choice for beatings organised by guards who take part in such practices with impunity. (...) The body was supposedly illegally removed without the presence of the health officer or of investigation authorities, namely the judicial police. (...) Meanwhile, we received information that the judicial police had arrived in the area and proceeded to conduct interrogations, but without having had the opportunity to observe the body in the crime scene". (...) "The prisoner had finished serving a 30-day punishment, the maximum allowed by law, and they were preparing him to force him to serve a sort of illegal punishment that has become a common practice in Portuguese prisons over the last few months in spite of being illegal, unlawful and, hence, criminal. (...) The flagrant impunity of repeated criminal acts in Portuguese prisons will not end for as long as the State is in the hands of the de facto powers that, provocatively, command in practice in Portuguese prisons" (point 11).
From the ACED statement of 19 July 2004:

- it reported the death two days earlier "of a detainee in a high security regime - after having been threatened repeatedly by a guard with a bad reputation - ..." as highlighting the contradiction between official versions that "counter allegations of murder, linked to acts of protest by unsafe and rebellious prisoners". Moreover, the statement criticises the establishment of new disciplinary regimes "apart from the five that already exist", all of which are stricter than the normal regimes and do not require allegations of bad behaviour by inmates to be used, asking whether their purpose is to satisfy the sadistic desires of guards or to provide illegal and arbitrary authority to the line of command, or to make the life of prisoners and prison officers who want to respect the law and have it respected impossible (point 12).

Allegation in "24 Horas" on 7 September 2004:
- that a detainee in Coimbra committed suicide, supposedly after a prison guard tried to extort 200 euros from him (point 13).

From Publico newspaper of 13 September 2004:
- "the guards deployed in Coimbra behave like torturers, frequently attacking prisoners" (point 14).

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