1The prisoner's rights and the Court
The Portuguese caseThank you very much for the invitation to this important conference
It is an enormous honour and an immense pleasure to work with• The Japan Criminal Policy Society (JCPS),• the Asia Crime Prevention Foundation (ACPF)• and for the second time, with the United Nations Asia and Far East
Institute for the Prevention of Crime and the Treatment ofOffenders (UNAFEI) and, specially, with its Director, Mr. Taro
Morinaga, with whom I had the privilege to work and learn inPortugal and also in East Timor some years ago.
My modest conference will try to address the following topics:
A – Introduction
B - The legal status of the prisoner in Portugal
C - Fundamental rights and imprisonment
D - Conditions for the exercise of rights
E - Safeguarding the exercise of rights/ the Court of Execution ofSentences

A - Introduction
Before starting my lecture, I would like to make the following statements:- The perfect prison does not exist- Mankind was not made to live deprived of liberty and, therefore, prison
will always be something that, whilst necessary in some cases, in a perfectsociety would not exist, but, in that same society, crimes would not exist
either!
It follows that all prison systems have positive and negative developments
and that in all of them there is always space for improvement.

2Naturally, I will try to emphasize what I consider to be positive in thePortuguese system, even though, at the end, I will briefly comment on somepoints that I believe should be improved.
Finally, and although I don’t know much about the Japanese prison system,from what I have read I can make two important preliminary
considerations:- Firstly, it has many positive points, namely the reduced dimension of theprison population and the non-existence of overcrowding, violence among
prisoners, gangs or drug trafficking networks, and there is a clear focus onwork, education and vocational training, and the transmission of social
values to inmates which, surely, is the best way for their future
reintegration into the community;- Secondly, I think that legislative amendments introduced in 2005 havebeen made in the right direction.
Therefore, I will end this introduction by congratulating you for suchimportant positive aspects and, once again, mentioning that all prison
systems are in constant need of adjustment.

B - The legal status of the prisoner in Portugal
Let me start my lecture on the Portuguese prison system - which, I repeat,
I would like to be understood as a simple exchange of views and that canbe surely enriched by your possible questions - with some general principles
on the legal status of the prisoner and on the impact that imprisonment has(or does not have) on their fundamental rights.

In Portugal - as generally in Europe - "PEOPLE GO TO PRISON AS A
PUNISHMENT AND NOT TO BE PUNISHED".
Indeed, and according to the Portuguese Constitution, the prisoner retains
their fundamental rights, subject only to the limitations resulting from thesentence and to the requirements of the respective execution.

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According to the Penal Enforcement Law, the execution of sentences mustensure respect for the dignity of the human person and for the otherfundamental principles enshrined in the Constitution and in the othernational and international laws.
Finally, according to the European Prison Rules, persons deprived of theirliberty must be treated with respect for their human rights and retain all
the rights that are not taken away by the decision sentencing them orremanding them in custody,
the restrictions placed on those rights shall be the minimum necessary andproportionate to the legitimate objective for which they are imposed
and, finally, conditions of imprisonment that violate human rights cannot
be justified on the grounds of lack of resources.
In addition, the resided United Nations Standard Minimum Rules for theTreatment of Prisoners (the so-called Nelson Mandela Rules) also state thatall prisoners should be treated with the respect inherent to the value anddignity of the human being.

C - Fundamental rights and imprisonmentMore specifically, and in view of the impact that deprivation of liberty hason them, fundamental rights can be grouped as follows:

1 - RIGHTS UNAFFECTED BY IMPRISONMENT
Without being exhaustive and only by way of example, cannot suffer any
limitation:- Right to LifeAs Portugal was a pioneer in abolishing the death penalty, the Portuguese
Constitution establishes that human life is inviolable.
- Right to physical integrity
The Constitution also establishes that the person's moral and physicalintegrity is inviolable, and that no one may be subjected to torture or tocruel, degrading, or inhuman treatment or punishment.

4In fact, the practice of such acts constitutes a serious criminal offense,punishable by imprisonment up to 16 years.
- Right to healthcare
According to the provisions of article 64 of the Constitution of the Republic,
everyone has the right to the protection of health and to access healthcare.
In addition, and according to the Code of Execution of Sentences, a prisoner
retains the right to access National Health Service, under the same terms as
those ensured to all citizens.
Actually, in some cases prisoners have better and faster access to healthcare than that provided to other citizens.
I believe this to be fair, since people admitted to prison have worse healthconditions - namely due to addictions or because they come from the mostdisadvantaged or poorest social classes - or because, in some cases, it is notpossible to reintegrate the prisoner in the community without first
addressing their health problem (namely in cases of drug use).

2 - RIGHTS SUPPRESSED BY IMPRISONMENTAt the opposite extreme we find the rights which exercise is completelysuppressed by imprisonment.
- The right to physical liberty
This is the case of the right to liberty which, of course, cannot be exercisedto any extent.
Consequently, other rights that are dependent on that one are also
suppressed, such as:- The right to emigrate- The right of displacement
However, it should be highlighted that the right of liberty which issuppressed is only the right to physical liberty.
In fact, as to what concerns the freedom of will, there is no limitation
whatsoever and the law even establishes the State's obligation to promote
the sense of co-responsibility of the prisoner, encouraging them to5participate in the planning and execution of their prison treatment, as wellas in their social reintegration process, namely through education,
vocational training, work and through the participation in various otherprograms.
In the same vein, it should be also underlined the need for the prisoner's
consent to the granting of open regime or parole.

3 - RIGHTS LIMITED BY PRISON
Finally, a brief note to the rights that the prisoner retains, but which, tosome extent, are subjected in their execution, to the limitations inherent to
the purposes of the sentence or for reasons of prison order or prison
security.
- Right to property
This right, although not affected by the application of the prison sentence,is restricted for reasons of order and security.
In fact, according to the law, prisoners may only keep with them objects
they need for personal use and for their daily life or to which they attach
emotional value, and only if they do not compromise the order, security,and discipline of the prison.
- Right to privacy
This right is safeguarded when, for instance, it is established that theprisoner's admission must take place with respect for their privacy.
However, according to the law, prisoners and their cells may be searched,although this must be done in a way that respects the dignity, integrity, andthe prisoner's decency.
- Right to preserve family bonds
A corollary of this protection is, for instance, the right to have visits - which
aim to maintain and promote the prisoner's family bonds- or the right tohave children with them up to the age of three years old.
However, these rights may be subject to restrictions and control,
particularly for reasons of security and order of the prison or because they
can be detrimental to the prisoner's social reintegration plan.

6- Right to freedom of religion and worship
These rights are recognized by the law but may also be mitigated forreasons of order and security of the prison establishment.
In any case, I would like to take this opportunity to recall that one of theguiding principles in the execution of sentences is its impartiality and theprohibition of privileging, benefiting, harming or depriving prisoners of any
right or exempting them of any duty on the grounds of sex, race, language,birthplace, nationality, ethnic origin, religion, political or ideological beliefs,
education, economic status, social condition or sexual orientation.
- Right to votePrisoners may vote in national elections, but they must do it according to aspecial procedure, like those used by military or fishers when exercising
their missions or activities outside the country.

As we have pointed out, all the aforementioned rights may be restricted forreasons of prison order and security.
However, it is important to stress that these limitations cannot be arbitrary,since they have specific purposes, clearly established in the law.
In other words, these decisions may only be made with a view to ensurecompliance with the objectives of the sentence and to maintain an orderly
and safe life in prison, they must be also guided by the principles ofnecessity, adequacy, and proportionality, and must be duly reasoned andrecorded.

D - Conditions for the exercise of rights
There is no point in having rights if we cannot exercise them.

For this reason, it is fundamental that the prisoners know their rights (andtheir duties). The State has the obligation to provide them all thisinformation.

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Regarding this matter, I must also congratulate you, because I know that inJapan this obligation is fulfilled in a very rigorous way, through thedistribution of an extensive and detailed "Guide to Prison Life" on prisoner’sadmission.
In addition, it is necessary to make sure that the prisoner fully understands
their rights, which means that staff must clarify any doubts that eventuallyremain and, in some cases (e.g., foreigners), that these documents must betranslated into a language that the prisoner can understand.
Moreover, it is important to have in mind that, as a rule, the moment ofadmission in a prison is always very traumatic:
The individual often enters the prison unexpectedly, in a completely
unknown and harsh environment, loses contact with family and friends, canno longer make most of the decisions about their life, is subject to a rigid
routine determined by the prison, does not know what their relationshipwill be with the staff and other prisoners (especially with those who occupy
the same cell) and, worst of all, does not know what their future will be.
For all these reasons - and for other circumstances that we could
enumerate - it is perfectly normal that the prisoner feels depressed,
frightened, anxious, worried, unhappy, and not in a mood to cooperate withthe prison administration.
In fact, it is common knowledge that admission to a prison is one of themoments that poses the most problems for order and security and is when
there is the greatest risk of self-harm and even suicide for prisoners.
Therefore, it is particularly important to understand the prisoner's state ofmind at that moment and to try - in an intelligent, professional, and humane
way - to explain to them their new situation, their rights and duties, and the
new daily routine they must follow, as well as to understand and try toaddress their concerns in an appropriate way.
This initial information is usually transmitted by the staff, but there areseveral European countries that commission inmates to do this, which, if
done by the right prisoners, has some advantages because the new prisoner
is more likely to believe a peer than an official.

8A final note to mention that this duty of information does not end uponadmission, but should be maintained throughout all the prisoner's stay inprison.

E - Safeguarding the exercise of rights / the Court of Execution ofSentences
On the other hand, there is also no point in having rights if there are noguarantees that, in case of their violation, there are means to reverse thedecision that has been made.
This subject alone would justify another conference.
However, due to the natural limitations of time and while mentioning that
there are several mechanisms and instances to safeguard the exercise ofprisoner’s rights - national or international; local, regional, or global; direct
or indirect; official or informal - I will address only the Courts of Executionof Sentences.
To begin with, I would like to mention that in Portugal the execution ofsentences has been monitored and supervised, for a long time, in several
ways, through these Courts (there are four of them spread all over thecountry).

In general terms, the Judges of those courts are responsible for ensuring:- that the rights of prisoners - namely those mentioned above - are notviolated, which means that the prisoners may appeal the decisions of theAdministration to those Courts);- and that imprisonment be served in accordance with the purposes set out
in the law - that is, on the one hand, the defence of society and theprevention of the practice of crimes, and, on the other hand, the social
reintegration of the prisoner, preparing them to lead their life in a socially
responsible way - which implies having to approve or not, and to ratify ornot, certain decisions of the Administration.

9On the other hand, the Prosecutors of these courts are responsible, also ingeneral and in addition to the contribution they make to the judge's
decisions, for ensuring respect for legality, which implies that several
decisions of the Administration must be immediately transmitted to themso that, if they consider them illegal, they can challenge them.

Some examples:- Individual Rehabilitation Plans
All prisoners sentenced to more than one year of imprisonment must havean individual rehabilitation plan - which contains the measures andactivities that must be carried out by the prisoner - that is regularlyreviewed.
This plan - and any subsequent amendments - is conceived by theAdministration but must be approved by the Judge.

- Prison Regime
In Portugal there are three regimes in which convicted prisoners may serve
their sentences: Common, Open and Security.
Once again, it is up to the Administration to choose the applicable regime
according to the evaluation made of the prisoner.
However, the External Open Regime (in which the inmate may leave theprison daily without custody, to study, attend vocational training sessions
or health programs) must be approved by a Judge.
And the application of Security Regime - which must be mandatorily reevaluated each three or six months, depending on whether the inmate isover 21 years old - must be communicated immediately to the Public
Prosecutor, for verification of its legality.

10- Visits and correspondence
The prisoner may receive visits on a very regular basis - either from lawyers,family members or from other persons - and, in certain cases, may also
benefit from intimate visits of their wife, husband or partner.
They may also receive letters, which are not subject to censorship, as wellas, under certain conditions, make telephone calls to previously authorizedcontacts.
The Administration is responsible for deciding whether to grant visits andtelephone contacts, and also for deciding whether to withhold theprisoner’s correspondence, but those decisions can be challenged before
the Judge.

Prison leaves
Once the prisoner has served a certain time of their sentence, and provided
they meet certain other conditions, they may be allowed to spend somedays out of the prison without custody.
The first leave is proposed by the administration, but is decided by theJudge. Only after this first leave may the Administration directly grant
temporary leaves.

- Order and Safety Measures
The two most serious measures of order and security are the placement in
a separation cell, and the placement in a security room, and the applicationof both measures must be immediately communicated to the Public
Prosecutor for verification of their legality.
- Disciplinary Measures
As to what concerns disciplinary measures, the application of compulsory
detention in cell (which may last up to 30 days) or in a disciplinary cell(which may last up to 21 days) can be appealed to the Judge.

11- Parole
If certain requirements are met, convicts may be paroled after serving halfor two thirds of their sentence. The Judge makes this decision, after
considering the opinion of the Administration and of the Public Prosecutor
and that decision may be appealed to a higher court.
**A final note to mention, as announced, some of the most important
problems affecting the Portuguese prison system at present time:
The first one refers to the excessive size of the prison population, especially
if we consider that Portugal is, according to the 2021 GLOBAL PEACE INDEX,
the 4th safest country in the World, only surpassed by Iceland, NewZealand, and Denmark.
The second refers to the conditions of the prison park which, in many cases,
is old and, in others, is dilapidated.
And the third has to do with the shortage of staff.
However, coming back to the beginning of my lecture, there is no perfectprison system, so Portugal is also trying to overcome these, and otherproblems.

Thank you very much for your attention.
Lisbon, February 8, 2022
Celso Manata