Documento 2018_Criancas_Privadas_de_Liberdade

Global Study on Children Deprived of Liberty Contribution of the Portuguese Ombudsman to the Independent Expert for the United Nations Global Study on Children Deprived of Liberty The Portuguese Ombudsman institution, in its capacity of national human rights institution fully in line with the Paris Principles and accredited with “A” status since 1999, hereby replies to the call for input received from the Independent Expert for the United Nations Global Study on Children Deprived of Liberty for contributing to the Global Study on Children Deprived of Liberty. The current mandate holder is Maria Lúcia Amaral. (September 2018) 1  Global Study on Children Deprived of Liberty Questionnaire Background and Introduction to the Global Study The United Nations General Assembly by Resolution 69/157 of 18 December 2014 invited the Secretary-General to commission an in-depth global study on children deprived of liberty. In October 2016, Manfred Nowak (Austria) was designated to lead the development of the Global Study as Independent Expert. The Global Study will build upon the experiences from two previous UN Studies on children: The report of Graça Machel on the Impact of Armed Conflict on Children as well as the United Nations Study on Violence against Children, led by Paulo Sérgio Pinheiro, which provide us with a good blueprint for undertaking the Global Study. The Global Study will be carried out in close cooperation with Governments, UN agencies and actors, including OHCHR, UNICEF, UNODC, UNHCR, the Special Representative of the Secretary-General on violence against children, the Special Representative of the Secretary-General for children and armed conflict, the Committee on the Rights of the Child (CRC), as well as civil society organizations and academia. The process will include thematic, national and regional consultations, which will take into account views from around the world. The input of all stakeholders is essential for the Global Study to provide sound evidence and recommendations to support the Member States in their efforts to prevent children’s deprivation of liberty and safeguard the rights of children deprived of liberty. The main objectives of the Global Study will be: 1. To assess the magnitude of this phenomenon, including the number of children deprived of liberty (disaggregated by age, gender and nationality), as well as the reasons invoked, the root-causes, type and length of deprivation of liberty and places of detention; 2. To document good practices and experiences and to capture the views and experiences of children to inform the Global Study’s recommendations; 3. To raise awareness and promote a change in stigmatizing attitudes and behaviour towards children at risk of arrest or detention as well as children who are deprived of liberty; 4. To provide recommendations for law, policy and practice to safeguard the rights of children concerned, and prevent the detention of children and significantly reduce the number of children deprived of liberty through effective non-custodial alternatives guided by the best interests of the child. The key focus areas of the Global Study will be the deprivation of liberty of I. Children deprived of liberty within the administration of justice II. Children deprived of liberty for migration-related reasons III. Children living in places of detention with their parents 2  IV. Children deprived of liberty in institutions V. Children deprived of liberty in the context of armed conflict VI. Children deprived of liberty on national security grounds. Purpose of the Questionnaire In preparing the Global Study, the Independent Expert will draw on a variety of sources and available information, based on quantitative and qualitative research methodologies. Sources will include but not be limited to State reports under the Convention on the Rights of the Child, information generated by United Nations conferences, official statistics available from the United Nations Statistics Division and other statistical information available within the United Nations system, including UNICEF, UNODC, UNHCR, OHCHR and the Special Representatives of the Secretary-General on Violence against Children and for Children and Armed Conflict. One of the most important tools for gathering comprehensive, reliable and most recent quantitative data is the present questionnaire which is being submitted to States, UN agencies, NGOs and other stakeholders, including the UN Committee on the Rights of the Child, the UN Sub- Committee on the Prevention of Torture (SPT), National Human Rights Institutions (NHRIs), National Preventive Mechanisms (NPMs) and academic institutions. The data requested in the questionnaire should be provided by Governments in close cooperation with field offices of relevant UN Agencies and with NGOs, NHRIs and other stakeholders. Governments are asked to take account of the fact that responses to the various forms of deprivation of liberty of children might fall into the competence of various Government departments and statistical offices and, in federal States, also on various levels of the federal structure. Governments are, therefore, requested to identify a focal point responsible for coordinating responses to the questionnaire and for liaising with field offices of UN Agencies and with NGOs and other stakeholders involved in compiling the requested data. The questionnaire is primarily aimed at collecting and providing quantitative statistical data about the number of children deprived of liberty in the key focus areas outlined above. In addition, Governments are encouraged to provide examples of best practices and innovative alternative approaches aimed at reducing the number of children deprived of liberty according to the child rights principles. Governments are also requested to provide copies of relevant laws, studies, policies, reports etc. The questionnaire aims at striking a realistic balance between data that are needed to enable a comprehensive and comparative analysis of children deprived of liberty on the one hand, and data which can realistically be expected from Governments to be collected and made available. For this reason, highly detailed questions and disaggregated data beyond age, gender and nationality have been avoided. Since many relevant data might not be available for the past, the questionnaire requests Governments to take a special effort in collecting such data at a particular date in the near future (26 June 2018) to provide a snapshot of the number of children detained at that specific point in time. If your government collects such “snapshot” data on another day of the year, please provide that 3 data. If data are usually available for the past, questions have also been raised with respect to the total number of children detained annually in each of the past ten years (2008 to 2017). This will facilitate a limited trend analysis. Other aspects of the Global Study, such as conditions in detention (rights to personal integrity, education, health etc.) or the integration of the principles of the rights of the child will form part of the qualitative information gathering and analysis. Responses to the questionnaire should be sent in both hard copy and electronic format in one of the six official United Nations languages no later than 1 September 2018 to: Manfred Nowak UNOG-OHCHR CH-1211 Geneva 10 Email: globalstudycdl@ohchr.org. 4 Definitions of Terms used in the Questionnaire The term “child” is defined in Article 1 of the UN Convention on the Rights of the Child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. For the purposes of the Global Study on Children Deprived of Liberty, which shall be based on comparable data of all States, such data will be collected on all children and juveniles up to the age of eighteen years, irrespective of how the term “children” is defined under domestic law. This includes both children detained with their family members, as well as unaccompanied or separated children. “Unaccompanied children” (also called unaccompanied minors) are children, as defined in article 1 of the Convention on the Rights of the Child, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. “Separated children” are children, as defined in article 1 of the Convention, who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. Every person, including every child, has the human right to personal liberty, as guaranteed in Article 9 of the International Covenant on Civil and Political Rights (ICCPR), Article 37(b) of the UN Convention on the Rights of the Child (CRC) and similar provisions in international and regional human rights treaties. The term “deprivation of liberty” is defined in Article 4(2) of the Optional Protocol to the UN Convention against Torture of 2002, which corresponds to the definition in Article 11(b) of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (Havana Rules), as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. This definition, which constitutes the legal basis for visits to places of detention by the UN Sub-Committee for the Prevention of Torture and by National Preventive Mechanisms, will also be applied for the purposes of the Global Study on Children Deprived of Liberty. The requirement that deprivation of liberty has to be ordered by a “judicial, administrative or other authority” leads to the conclusion that children deprived of liberty by non-State actors (e.g. parents, traffickers or armed rebel groups) will not be covered by the present study, irrespective of the obligation of States to prevent such types of deprivation of liberty. But the places of detention go beyond State- organized prisons and institutions and include also private custodial settings, such as private prisons, educational institutions, psychiatric hospitals and similar institutions as long as such private custodial settings are licensed or contracted by the State and/or the deprivation of liberty was ordered by a State authority. Article 37(b) CRC provides that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. In addition, the implementation of all rights under the CRC must be guided by the general principles of the Convention, namely non- discrimination, best interests of the child, the right to life, survival and development and the right of the child to express his or her views. Apart from the message that children should only be deprived of liberty in truly exceptional situations, Article 37(b) CRC uses three specific terms for the generic term “deprivation of liberty”. “Arrest” usually refers 5 to the act of deprivation of liberty by the police or other law enforcement officials. “Detention”, on the other hand, refers to the situation of deprivation of liberty, which starts with the arrest and ends with the release of the person concerned. While “detention” is used as a generic term for every type of deprivation of liberty, “imprisonment” or “incarceration” is only used for detention after a conviction by a criminal court and sentence to a specific prison term. Prison terms are usually spent in “prisons” or “correctional institutions”. Police detention is usually referred to as police “custody” in a police lock-up or a police “jail” (for longer periods). Detention in camps (e.g. for prisoners of war) is usually called “internment” or “confinement”. The term “Institutions” (or “centres”) means all public or private settings outside the justice system or the penitentiary administration, where children can be deprived of liberty. Such institutions may include, but are not limited to, orphanages, reform schools, closed remand rooms or other correctional institutions, institutions for children with disabilities, for children with health problems (e.g. facilities dealing with behavioural disorders, psychiatric facilities), for children with drug, alcohol or other addictions, for the protection of victims of abuse including trafficking, for children without parental care, from where the children are not permitted to leave at will. Irrespective of the terminology or how situations of deprivation of liberty are interpreted under domestic law, what is instructive for the purposes of the Global Study is the fact that the child is prevented by whatever means (physical force, physical barriers, threats, sanctions, restraints, medication etc.) from leaving a particular facility, site or institution at will. The Global Study therefore seeks information with regard to both de facto and de jure deprivation of a child’s liberty. General instructions for completing the questionnaire: • Please provide the most data possible in each subject area: o If data are not available for the date selected, please provide the most recent data available. o If historical data are not available for each of the last 10 years, please provide any data available within that period. • Please provide information about the collection methodology for data included in this survey, as well as any information about data quality, where available. • Please note the following abbreviations used throughout the table shells: o M: Male o F: Female o P: Persons o Nat.: National/Citizen o Non-Nat.: Non-Citizen 6  Questionnaire I. Children deprived of liberty within the administration of justice 1) What is the minimum age of criminal responsibility in your country? If the minimum age of criminal responsibility varies within your country, please provide details. In Portugal, the minimum age of criminal responsibility is 16. 2) Are there separate juvenile justice processes and/or facilities for children in conflict with the law? Please describe juvenile justice arrangements at all levels of the criminal justice system (police, courts, corrections). Yes. The Educational Guardianship Law (Law no. 166/99, 14th of September) is the legal provision that applies to children whom, between the age of 12 and 16, adopt conducts that are qualified by the Penal Code as a crime. Family and Children Courts have the jurisdiction initiate the procedures, to trial the process and to oversee the execution of the educational measures. These measures are established in the law and are applied bearing in mind the principles of necessity, proportionality and legality. The educational measures can generally be defined as institutional and non- institutional. The most severe measure is the internment in an Educational Centre (institutional), which temporarily removes the child from his/hers natural environment. According with the degree of necessity the educational measure of internment can be executed in an open, semi-open or closed Educational Centre. Alongside other requirements (i.e the seriousness of the offense) a child can only be sentenced to internment in a closed Educational Centre if he or she is, at least, 14 years old. There are further 8 non-institutional measures that will be more developed in questions no. 8 and 13. 3) From what age are children subject to detention in the juvenile justice system? From what age are they subject to detention in the adult criminal justice system? As mentioned above and in regard to the juvenile justice system, the Educational Guardianship Law applies to children that commit offenses between the ages of 12 7  and 16. The internment in a closed Educational Centre may only occur if the child is, at least, 14 years old – younger aged children (at least 12) can be interned in open or semi-open Educational Centers. In the adult criminal system children can be subjected to detention from the age of 16 (age of criminal responsibility). It is important to mention that there is also a special legal regime for children and youths aged between 16 and 21. This regime has particular provisions, namely regarding reduced sentencing and specially dedicated detention facilities. 4) Please provide the number of children deprived of liberty on 26 June 2018: A) in police custody for suspected offenses There is no available data. B) in pre-trial (remand) detention In June 26th 2018 there were 18 children detained in these circumstances. This number amounts the provisional educational measures applied in the court’s pre-decision phase when there is the predictability of application of a final educational measure and the existence of a risk of flight or committing other acts qualified in the law as a crime. C) in prison or other detention facilities after a conviction and sentence (or their equivalent in domestic law). In June 26th 2018 there were 154 young people in Educational Centers. This internment measure, applied following a judicial decision, aims to provide the young person, by means of temporary removal from their habitual environment and the use of pedagogical programs and methods, internalization of values conform to the law and to the acquisition of resources that will enable them to conduct their life in a socially and legally responsible way in the future. Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. 8 Provisional Educational Measures (Juvenile Justice System) total children Under 10 10-11 12-13 14-15 16-17 (0-17) non- non- non- non- non- non- nat total nat total nat total nat total nat total nat total nat nat nat nat nat nat Male 1 1 12 1 13 2 2 15 1 16 Female 2 2 2 2 Total 1 1 14 1 15 2 2 17 1 18 Internment in Educational Center total children Under 10 10-11 12-13 14-15 16-17 (0-17) non- non- non- non- non- non- nat total nat total nat total nat total nat total nat total nat nat nat nat nat nat Male 25 8 33 73 6 79 98 14 112 Female 9 9 8 2 10 17 2 19 Total 34 8 42 81 8 89 115 16 131 9 Table 1: Children deprived of liberty in the criminal justice system on 26 June 2018 Under 10 10-11 12-13 14-15 16-17 Total (ages 0-17) Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total nat. nat. nat. nat. nat. nat. A) In police custody Male Female Total police custody B) Pre-trial detention Male 6 5 11 6 5 11 Female 0 1 1 0 1 1 Total pre- 6 6 12 6 6 12 trial detention C) Prison Male 1 1 1 1 Female 0 0 0 0 Total prison 1 1 1 1 Total children in deprived of liberty in the criminal justice system Total males 7 5 12 7 5 12 Total 1 1 1 1 females Total 7 6 13 7 6 13 children 10 5) Please provide the total number of children aged 0-17 taken into police detention for suspected offences in each of the last 10 years. Table 2: Children taken into police detention for suspected offences, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male Female Total 6) Please provide the total number of children aged 0-17 taken into pre-trial detention in each of the last 10 years. Table 3: Children taken into pre-trial detention, 2008-2017 (Juvenile System) 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male NA NA 78 75 57 55 40 31 27 30 Female NA NA 13 9 7 3 8 6 7 5 Total NA NA 91 84 64 58 48 37 34 35 Children taken into pre-trial detention, 2008-2017 (Criminal System aged 16-18) 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male 22 24 27 19 20 20 18 9 10 15 Female 1 0 0 0 0 0 0 0 0 0 Total 23 24 27 19 20 20 18 9 10 15 7) Please provide the total number of children aged 0-17 taken into prison or other correctional detention facilities in each of the last 10 years. 11  Table 4: Children taken into prison or other correctional detention, 2008-2017 (Criminal System aged 16-18) 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male 2 3 5 3 1 2 3 2 1 2 Female 0 0 0 0 0 0 0 0 0 0 Total 2 3 5 3 1 2 3 2 1 2 Children taken into Educational Centers , 2008-2017 (Juvenile System) 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male * * 191 182 163 152 123 82 96 106 Female * * 27 22 19 15 18 10 13 13 Total * * 218 204 182 167 141 92 109 119 8) What sentencing options are available for children convicted of a criminal offense? In addition to the internment measure in an educational center, the Educational Guardianship Law provides the enforcement of the following measures to be executed in the community: a) Admonition; b) Deprivation of the right to drive mopeds or to obtain permission to drive mopeds; c) Compensation to the offended; d) Community service; e) Imposition of rules of conduct; f) Imposition of obligations; g) Attendance of training programs; 12  h) Educational monitoring. 9) What is the longest period of custodial detention (imprisonment or other form of detention) to which a child can be sentenced? The educational guardianship measures have a 3 years limit. 10) Can children be sentenced to capital punishment? No. The Portuguese Constitution prohibits it. 11) For each of the last ten years (2008-2017), please provide the total number of children aged 0-17 sentenced to life imprisonment and capital punishment. None. Table 5: Children sentenced to life imprisonment and capital punishment, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Children sentenced to life imprisonment Male Female Total Children sentenced to capital punishment Male Female Total 13 12) Please provide the rate (per 100 000 population) of criminal offending (all offenses) by age for the most recent calendar year available. There is no available data concerning the division by age. Table 6: Rates of criminal offending by age, [PLEASE SPECIFY YEAR] Total Total Under 10-11 12-13 14-15 16-17 children 18 + 10 (0-17) Male Female Total 13) Please provide information on all alternatives to the deprivation of liberty of children for juvenile or criminal offenses (such as restorative justice approaches, diversion, non-custodial programmes and services) that are provided for by law, policy or practice, whether in police custody, pre-trial detention, or imprisonment after conviction. As mentioned in question no.8 the majority of measures established in the Educational Guardianship Law and applied by the courts are educational measures that are executed in the community fulfilling the concepts o restorative diversion and non-custodial. The internment in an Educational Centre is viewed by the Law as a last resort measure that can only be applied when the others are inadequate. 14) Have there been any major legislative or policy changes related to children in conflict with the law during the last ten years (2008-2017)? If so, which impact have these changes had on the number of children deprived of liberty? The first amendment to the Educational Tutelary Law (Law No. 4/2015 of January 15), introduces the possibility that, by judicial decision, the implementation of the internment measure may include an intensive supervision period, which aims at assessing the 14  level of competences of an integrative nature acquired by the child in the institutional environment, as well as the impact of their social and personal behavior. The length of this period of intensive supervision may not be less than three months and not more than one year, and social services must assess and propose the duration of the intensive supervision period in each case. This amendment allows the child to comply with part of the internment measure in the community, thus tending to reduce the length of stay in an educational center and, consequently, the number of children in an educational center. 15) Please provide examples of good practices aimed at preventing the detention of children, reducing the number of children deprived of liberty within the administration of justice or shortening the period of detention. Some of the good practices associated with the reduction of the number of interned children in Educational Centers and the reduction of their permanence in consist, on the one hand, of preventive actions carried out by different NGO’s and governmental organizations and, on the other hand, by the Educational Tutelary Law that provides alternatives to internment, namely the Suspension of the Process - an extra procedural measure that seeks to suspend the process, by presenting and complying with a plan of conduct that shows that the child is willing to avoid in the future disruptive behaviors. Another example is the Educational Monitoring measure which, as a more serious educational measure to be carried out in the community, allows a child with a higher risk to train their skills and to be supported in the community, avoiding his/hers internment. 15 II. Children deprived of liberty for migration-related reasons 16) Please detail the legislation under which children are deprived of liberty on migration-related grounds. (Attach copies of the legislation if possible) Detention of the context of Migration is expressly allowed by Article 27, 3, c) of the Portuguese Constitution, which sets forth an exception to the right of personal freedom to all those who have illegally entered or remained in Portuguese territory, or who are currently under extradition or deportation proceedings. The Portuguese Immigration Law (Law n. 27/2008 of 30th June, as last amended by Law n. 26/2018, of 5 July), sets forth the conditions for entry, stay and removal of foreign persons from the Portuguese territory. According to Article 146, a foreigner that is found in the national territory without valid permit or visa, is detained and shall be present to the criminal judge in 48 hours. The judge will decide which measure shall then be applicable. Detention is applicable in cases of coercive removal from the national territory (article 146). Thus, one may interpret the law as precluding the application of a detention measure where there is no possibility to remove the person considered. Coercive removal procedures are not applicable to those who, having illegally entered in the national territory, have nonetheless sought asylum in 48h. In these cases, the asylum seeker must wait for their decision in freedom (Article 146, n.6 of the Immigration Law). Thus, families with children who have entered in the national territory illegally but have then asked for asylum, cannot be detained. As explained below, an exception to this rule is foreseen in the Asylum Law for applications made at the airports. The Immigration Law foresees another case of detention: in context of entry refusals. In these cases, the foreigner presents him or herself to the border, being his or her entry in the national territory denied. If the removal is not possible within 48 hours, the person whose entry was refused must be placed in the temporary reception center (Article 38, n. 4). According to Article 31, children who arrive at the border without being dully accompanied by their legal guardian or dully authorized by them, cannot enter into the Portuguese territory, except where there any adult authorized by their legal guardian to receive the 16 child in the territory. According to this Article, read together with Article 146-A, unaccompanied child shall wait for a decision on her / his entry in detention. One must highlight that the child can only be removed for his / her country of origin where there are sufficient proofs that he or she will be received by their responsible persons (Article 31, n.6). That not being the case, the child must be released and subjected to a protection and promotion measure. The Asylum and International Protection Law (Law n. 27/2008, of 30th June, as amended by Law n. 26/2014, of 5 May also sets forth some cases where asylum seekers, including children, may be detained. According to its general rule, established in Article 35- A, asylum seekers cannot be detained on the mere grounds of having requested asylum. However, several exceptions are foreseen: applicants may be placed or kept in a temporary facility for reasons of national security, public policy, public health or where there is a risk of absconding, on the basis of an individual assessment and if other alternative and less serious measures cannot be effectively implemented. However, according to paragraph 3, applicants may also be placed or kept in a temporary reception center if other alternative measures cannot be effectively implemented: (a) in the context of asylum applications made at border posts; (b) in the context of applications submitted following a removal decision; (c) during the special procedure for determining the responsible State for examining the application for international protection provided for in Article 28 of Regulation (EU) n. 604/2013 of the European Parliament and of the Council of 26 June (Dublin Regulation). In practice, though, asylum seekers who apply for asylum at border posts are placed in the airports temporary reception centers (Article 26). Although the Aliens and Borders Service usually avoids to qualify such centers as “detention facilities”, they have such characteristics, being characterized by deprivation of freedom of movements. 17  Unaccompanied asylum-seeking children, however, are accommodated in the Shelter for Refugee Children, coordinated by the Portuguese Refugee Council. That is because the Asylum Law expressly demands that these children must be accommodated in specific facilities which respect the international standards recommended by UNICEF, Red Cross and UNHCR (Article 26, n. 2 and 35-B, n. 6). 17) What is the maximum time period, provided for by law, for which children can be deprived of liberty for migration-related reasons? (Please provide the time period and the name of the relevant legislation). According to Article 146 of the Immigration Law, detention of migrants – adults and children alike – must only be used during the enforcement of a removal decision. However, the maximum detention period cannot exceed 60 days. No prorogation is allowed under any terms. Article 24, n.4 of the Asylum Law sets forth that all asylum applications made in the airport border must be decided in seven days. This could imply that all detentions of asylum seekers in the temporary reception centers in the airport could only last for seven days. However, in practice, decisions are rarely taken in seven days. Moreover, Article 35-B sets forth that reception in temporary centers cannot be longer than 60 days. Thus, in practice, detention of asylum-seekers may last as long as detention of other migrants. 18) Which authorities make decisions to deprive children of liberty for reasons relating to migration status? According to Article 146, n. 7 of the Immigration Law, the Aliens and Borders Service and other police entities (National Republican Guard, Public Security Police, Judiciary Police and Maritime Police) are competent for detaining any illegally staying foreigner in the national territory, including children. Detention must be validated by a judge (holding office of a criminal court or, in municipalities 18  where no specific jurisdiction court exists, a generic competence court). Judicial control of any detention measure is a guarantee expressly foreseen in Article 28, n.1 of the Portuguese Constitution. For the Asylum Law, since reception of asylum seekers in temporary detention centers is made following an asylum request, it is usually the Aliens and Borders Service who proceeds to the application of such measure. According to Article 35-A, n. 6 of the Asylum Law, detention of asylum seekers in temporary reception centers must also be validated by a judge, which must be done within 48 hours. 19) Which criteria are taken into account in such decisions? The Immigration Law does not expressly foresee which criteria must be taken into account for the purpose of applying a detention decision. It only mentions that coercion measures, such as detention, shall be applicable where there is a risk of absconding (Article 142). However, it must be interpreted according to the Return Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third- country nationals). Thus, detention is only justified where there is a risk of absconding or where the person is being an obstacle to the removal procedure. Also, according to Article 17 of the Directive, families with children and unaccompanied children may only be detained as a last resort and for the shortest period possible. The Supreme Court has already stated however, that the application of a detention measure does not need to be necessarily preceded by a removal decision. However, the case law shows that detention must meet the proportionality requirements. Courts must analyze whether the detention shall be considered as necessary and adequate. It has been also stressing that the mere illegal entry in the national territory cannot justify, per se, the application of such measure. 19  Case-law of the Portuguese Superior Courts have highlighted that detention can only be applicable and maintained where necessary for the enforcement of a removal decision. However, detention is not illegal in cases where a removal decision has not yet been formally taken, despite being planned. As regards Asylum Law, Article 35-A sets forth the cases where “accommodation” in temporary centers may be applicable. In all these situations, the measure can only be applicable when no other efficient and less serious measures can be used. 20) What is the review process for such decisions? First and foremost, the constitutional guarantee of habeas corpus (Article 31 of the Portuguese Constitution) is applicable to all detention measures, including, as several times confirmed by the Portuguese Supreme Court, detention on migration contexts. In these cases, any migrant (illegally staying, under removal procedure or asylum seeker) who considers that his or her detention is illegal may ask the Portuguese Supreme Court to be immediately released. Moreover, all decisions made by the courts where detention was decided are subjected to judicial review to the superior courts, however, according to the Criminal Procedures Code, with no suspensive effects (Article 408 a contrario sensu). In cases where the migrant wants the judicial review of the decisions of removal / entry refusal / asylum denial, he or she must address their petition to the administrative courts. In these cases, the court reviews the final decision. In cases of an asylum procedure, the review has suspensive effects (Articles 22, 25, 30, 33, 33-A of the Asylum Law). However, in other cases, such effects will only be granted All migrants have the right to be represented by a lawyer, and, when needed, free legal support is granted on the terms of the Law on Legal Aid (Law n. 34/2004 of 29 July, as last amended by Law 47/2007 of 28 August). Finally, migrants also have the right to be heard and to be assisted by an interpreter, where necessary. 20 21) Please list all facilities (such as dedicated immigration detention centers, police stations, border facilities, reception centers, shelters, airport detention facilities, transit areas, emergency or temporary facilities, removal centers, prisons, etc.) where children can be deprived of liberty for migration-related reasons. Detention Centers for migrants are designated, in the Portuguese Law, as “temporary reception centers” (Law n. 34/94 of 14 September, as last amended by Law n. 23/2007 of 4 July). Children detained in the context of Immigration Law can be placed in one of the Temporary Reception Centers, located in the airports of Faro, Porto and Lisbon (Decree-Law n. 85/2000 of 12 May) or in the only detention center located outside the airports (Unidade Habitacional de Santo António in Porto). Asylum-seeker children who are accompanied with their parents can also be detained in the airports reception centers. However, only the center located in the Lisbon Airport separates the asylum seekers from all the other migrants who can be detained. The Portuguese Ombudsman - National Preventive Mechanism, has been affirming that these centers do not gather the minimum conditions for an adequate reception of children or families (see 2017 NPM annual report). Moreover, none of these facilities (including the detention center located in Porto) have autonomous accommodation places for families, despite that being required by Article 146-A of the Immigration Law. Nevertheless, following some recommendations of the Portuguese Ombudsman, the Government has announced, in July 2017, that a new detention center would be constructed in Sintra, which would encompass new 50 places with separate accommodation facilities for families. As already mentioned, unaccompanied asylum-seekers children are accommodated in the Center for the Refugee Child, coordinated by the Portuguese Refugee Council. 21 22) Please provide the number of children deprived of liberty on 26 June 2018 for the following migration-related reasons: A) Irregular entry B) During processing (such as: identification, health or security screening; undocumented status; disputed age; or exceeding authorised stay; unauthorised employment; determination of asylum, refugee or other international protection status; as a victim of trafficking) C) Forced return/removal Please note: Despite the Ombudsman’s efforts, SEF did not provide the number of children deprived of liberty on 26 June 2018, but only the total number of children detained from 2017 to 26 June 2018. Also, no data was provided on detention during forced removal / return procedures, although parents who are under these procedures and are in charge of children are detained in Unidade Habitacional de Santo António (Porto). However, these data may be included in data regarding detention during processing, because SEF answered as these data would encompass a wide range of detention purposes, such as: identification, health or security screening; disputed age; determination of asylum, refugee or other international protection status; potential victims of trafficking, but also for exceeding authorised stay; unauthorised employment and for having undocumented status. 22  0-3 4-9 10-11 12-13 14-15 16-17 Tot M F P M F P M F P M F P M F P M F P M F A) Irregular entry Detained with 15 10 15 14 11 25 4 1 5 4 8 12 8 8 16 18 10 28 63 48 family/caregiver Detained without 2 2 2 3 5 8 3 11 10 8 family/caregiver Total irregular entry 15 25 5 14 21 39 73 56 B) During Processing Detained with 1 1 family/caregiver Detained without 2 2 5 1 6 2 3 5 3 1 4 3 5 8 4 11 15 17 23 family/caregiver Total during processing 3 6 5 4 8 15 17 23 C) Forced return/removal Detained with family/caregiver Detained without family/caregiver 23 Total forced return/removal Total children detained 16 Please provide disaggregated data, where possible, for children detained with and without family/caregivers (unaccompanied and separated children) Table 7: Children deprived of liberty for migration-related reasons, 26 June 2018 23) Please provide the total number of children aged 0-17 taken into detention at the point of irregular entry in each of the last 10 years. Please provide disaggregated data, where possible, for children detained with and without family/caregivers (unaccompanied or separated children). No data available. Table 8: Children taken into detention at the point of irregular entry, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Detained with family/caregiver Detained without family/caregiver Total irregular entry 24  24) Please provide the total number of children aged 0-17 taken into detention during processing (such as: identification, health or security screening; undocumented status; disputed age; or exceeding authorised stay; unauthorised employment; determination of asylum, refugee or other international protection status; as a victim of trafficking) in each of the last 10 years. Please provide disaggregated data, where possible, for children detained with and without family/caregivers (include unaccompanied or separated children). Table 9: Children taken into detention during migration-related processing, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Detained with 12 72 family/caregiver Detained 12 9 21 5 6 11 without family/caregiver Total during 33 83 processing 25) Please provide the total number of children aged 0-17 taken into detention for the purposes of forced return/removal in each of the last 10 years. Please provide disaggregated data, where possible, for children detained with and without family/caregivers (include unaccompanied or separated children). Table 10: Children taken into detention for the purposes of forced return/removal, 2008-2017 No data available 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 25  M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Detained with family/caregiver Detained without family/caregiver Total forced return/removal 26 26) Please describe all alternatives to the deprivation of liberty of children provided for by law or policy, or administered in practice. If different measures are applicable for children detained with and without family/caregivers (unaccompanied or separated children), please provide details. According to Article 146 of the Immigration Law, a foreigner that is found in the national territory without valid permit or visa is detained and shall be present to the criminal judge in 48 hours. The judge will decide which measure shall then be applicable. Several coercive measures can be applicable (Article 142), such as: a) Periodic presentation to the Aliens and Borders Service (SEF); b) Use of electronic surveillance means; c) Detention in a temporary installation center or in a similar space, according to the law. As already mentioned, the Return Directive and the case-law of the superior courts have been highlighting that detention should be applicable to children and to families with children only as a last resort measure. However, in practice, numbers show that detention is being systematically applied in the context of immigration law. As already mentioned as well, the sole exception regards unaccompanied children seeking asylum. Even in cases where detention would be applicable in the asylum context, unaccompanied children will be accommodated in a specific accommodation center ran by the NGO who represents the UNHCR in Portugal (the Portuguese Refugee Council). 27) Have there been any major legislative or policy changes related to the deprivation of liberty of children for migration-related reasons during the last ten years (2008-2017)? Please provide details. If known, please detail any impact (measured or expected) these changes have had on the number of children deprived of liberty. The Portuguese Immigration Law, entered in force in 2008, was amended several times. Article 146, which sets forth the situations where a coercive removal procedure shall be applicable, was amended in 2012 (Law n. 29/2012 of 9 August). These legal changes have introduced some exceptions to coercive removal cases, and thus, to the use of detention. For example, nor removal nor detention shall be applicable in cases 27  where the foreigner holds a resident permit issued by another Member-State of the European Union, and undertakes to go immediately to that country. However this may be, cases for refusal on public order and national security grounds were enlarged in 2012. As a consequence, detention cases due to entry refusals were naturally extended. As for the Asylum and International Protection Law, it was enacted in 2008 and was amended by Law n. 26/2014, of 5 May. This amendment inserted a new Article (Article 35-A) which created several cases where detention of asylum seekers could be applied. Until 2014, detention of asylum seekers could not take place. Although the 2014 law maintained the principle of the non detention by the mere fact of an asylum request, it has nonetheless created several cases (“exceptions”) where asylum seekers could be “accommodated” in temporary reception centers, being the “airport exception” the most impressive, as already mentioned. In this context, Article 26, on the context of asylum requests presented on the border points was also amended, in order to encompass the “accommodation” on the temporary accommodation centers in the airports. Finally, Immigration Law was recently amended by Law n. 26/2018 of 5 July. According to the new law, unaccompanied children who arrive to Portugal and are subjected to protection measures, through their accommodation on a shelter home, must have their administrative status regularized. They are formally considered “children in danger”, for the purposes of the applicable Law. The Public Prosecutor is competent to officially promote the respective procedure. This amendment has reinforced that unaccompanied children must be regarded as persons in need for protection, being legal status an important measure for such purpose. 28) Please provide examples of good practices aimed at preventing the detention of children and reducing the number of children deprived of liberty for migration-related reasons. After the references to Immigration and Asylum laws, as well as to administrative practice, one may consider that unaccompanied migrant children are treated with care. 28 In principle, they are not detained, and are accommodated through the national system of Protection of Children and in Danger or, being asylum seekers, in the accommodation center especially designed for refugee children, where they have access to psychological, educational and social support. Also, in both cases, they have support to obtain a legal status. However, the same cannot be said regarding children who arrive to Portuguese borders with their family members or legal guardians. In these cases, detention, especially in the airports, is systematically being applied. The Aliens and Borders Service claims that, in many of these situations, family ties are not dully demonstrated, and detention may be justified with trafficking of children prevention. However, even that being the case, there must be special measures aimed at protecting potential victims. Detention in airport temporary installations, as already mentioned by the NPM reports, are not adequate places for receiving children. Having cooperated with the present questionnaire by providing data, the Aliens and Borders Service expressed the following good practice: “in case of an application for international protection at the air border involving households with minors, when the decision on the said application is negative, applicants remain installed until appeal. After the appeal and bearing in mind the fact that the competent administrative court will not decide within 60 days, the national authority promotes entry into national territory”. 29 III. Children living in places of detention with their parents 29) Are persons (adults or children) detained in the context of the criminal justice system allowed to have their children stay with them in their place of detention? What is the legal basis? Does this apply to all places of detention in the country? Does this apply to fathers as well as mothers? Are there any age limits for children to be allowed to stay with detained parents? Can children enter prison with a parent or are only those children born in prison allowed to stay? The Code on Penalties Execution (Law n. 115/2009 of 12 October, as last amended by Law 94/2017 of 23 August) expressly allows detainees to have their children in detention facilities (Article 7, paragraph g)). This does not apply to all places of detention in the country, but only to the Prison of Tires (Lisbon District) and of Santa Cruz do Bispo (Porto District). These are the only two prison centers with conditions to accommodate children. Notwithstanding the Law does not discriminate between men and women, at this moment only these two female prisons have the adequate facilities to admit children. The law sets forth as an age limit for children to stay with mothers in detention facilities until the age of 3 years. Exceptionally, children until 5 years old may be authorized to stay with imprisoned mothers. The other legal guardian must authorize such possibility and this must correspond to the best interest of the child. Moreover, detention facilities must provide adequate conditions for receiving these older children. The Code on Penalties Execution does not make any distinction between children born inside or outside the detention context. Thus, both children who are born during the mother’s detention and other children of detained women may reside in the prison. In this latter situation, children enter the prison with the mother. 30) Which authorities decide whether a child can stay with a parent in a place of detention? Detained woman who hold of legal guardianship and parental responsibilities of their children are authorized to keep the children with them. Assignment of this responsibility / guardianship may take place in two ways: The other parent expressly allows that the child will be subjected to the mother’s care; 30  The Family and Children Court decides that the child shall be subjected to the mother’s care. In both cases, whenever there is the possibility of a child to enter or to live in a detention facility with their mother, the Children Protection Commission and the Family and Children court, both working on the territorial area of the detention facility, shall be immediately informed. 31) What is the review process for these decisions? These decisions can be reviewed by request of the other parent or by intervention of the Children Protection Commission and the Family and Children Court. For example, the prison may inform the Protection Commission that the child’s interests do not recommend their permanence in the detention environment. The Commission shall then intervene in order to understand the risks that the child is facing. Where necessary, the Law on Protection of Children in Danger can be applicable and the Commission may suggest another solution for the child (v.g. care with another family member). In these cases, such as with other cases of intervention conducted by these commissions, the mother’s consent is necessary. On other cases, the other parent or even other family members may ask for a change of the parental responsibilities and guardianship. The Family and Children Court may then decide whether is better for the child’s superior interest to continue at their mother’s care or to designate another guardian, even if temporarily. 32) Which authority is responsible for the child’s protection while the child is living in prison facilities? While the child is living in prison facilities, he or she stay at their mother’s care. That means that the mother is directly responsible for the child’s well-being. Parental care will be supervised by the prison’s personnel, especially by the social assistant responsible for accompanying the mother’s punishment execution. Also, the personnel working on the prison’s kindergarten will supervise the child’s well-being and the quality of the mother’s care. Where risks or negligence arise, the prison informs the Protection Commission and the Family and Children Court. 31 33) Which criteria are taken into account in the decision to allow children to stay with parents detained in the context of the criminal justice system? The child’s best interest is always considered as the paramount criterion. Thus, his or her residence in a prison facility are only applicable where the child’s well-being and social and phycological development will not be compromised. Moreover, the mother’s capacities and abilities are considered, as well as the quality of her relationship with the child. The child’s age is also a factor to always be considered. Thus, for example, the solution may be different depending on the age of the child at the date of the mother’s detention. 34) Please describe the facilities children stay in when they live with their parents in prison. In the two prisons centers where mothers can live with their children in Portugal, there are several facilities aimed at children. First and foremost, both of them have a kindergarten, where trained professionals develop several activities especially aimed at occupying children and of promoting their development. Several visits are organized, allowing children to the beach, to gardens, to the zoos and theatres, cinema and even shopping centers. The National Preventive Mechanism has already visited and interviewed some of these kindergarten’s personnel and confirmed their willingness to promote a close connection between the children and the world outside the prison. Different sectors for mothers living with their children exist in these two prisons. For example, in Tires, mothers reside with their children in a private room with private toilette and shower. In this sector, children have access to a leisure room with toys and to backyard, where they may play together and with their mothers. This sector is called “Casa das Mães” (“Mothers’ House”). Moreover, there is food adapted to children and access to bao the necessary supplies, such as diapers, bottles, etc. Some grandmothers also live in the prison, thus providing help to their daughters and grandchildren. 32  As a general rule, children who live with their mothers in prisons have the right to be visited by the other parent and by other relatives, even when these relatives are also imprisoned. That being the case, there is a program for inter-prisons visits. Children may also be visited and visit their siblings who reside outside, the prison, even where they are in residential care. 35) Please provide details about the following aspects of children’s care while living in detention with their parent/s: Education: After completing 6 months old, children are enrolled in the prison’s kindergarten, which works from 9 to 17h30. As already mentioned, children will benefit from educational activities, sports and cultural visits. Kindergarten is also important for promoting these children to play with other children. In Tires there are two educational professionals that make an annual plan for the education of these children, according to the governmental educational orientations. These plans encompass a component for promoting mothers’ capacities. Health care: Access to children healthcare is granted. Children who are detained with their mothers are vaccinated according to the national mandatory vaccination program. In Tires, all children are supervised by the local health centers and have access to pediatric consultations on every two weeks. Moreover, this prison has a permanent team of doctors and nurses working in general and family clinic. In Santa Cruz do Bispo, there is a special pediatric unit, which follows the national child and youth health plan. Where necessary, children may be directed to special health consultations or hospital procedures. Protection: The prison’s director and social assistant, the kindergarten and health professionals work closely with the mothers in order to guarantee that the child’s well-being is being promoted. In cases of risk or neglect, the Family and Children Court (or the Commissions for Children Protection) will be informed. 33 Rest: In both prisons, mothers with children stay in a different and separated sector, where also pregnant women may be accommodated. In these sectors, cells are prepared with adequate furniture and beds for children. Kindergartens have rooms for naps. Leisure: In both prisons, sectors for mothers with children have leisure rooms equipped with toys, books and other children materials. In the “Mothers’ House” of Tires, there are two leisure rooms and an outside courtyard. In Santa Cruz do Bispo there is also a courtyard and a gym. Play and recreational activities: In both prisons, several recreational activities are developed by the kindergartens. As already mentioned, several activities are developed y the education personnel, such as music, lessons, painting classes and drama. In Santa Cruz do Bispo, there are also weekly swimming classes for children. Kindergartens also organize, as mentioned, several visits to the community. In Santa Cruz do Bispo, a volunteering service is organized to promote leisure activities during the weekends. Nutrition: Children’s nutrition is especially planned by the food providers. Both prisons have adjudicated the catering contracts to companies that supply special food to children, adapted to their age and their heath needs. Developmental and other needs: A special education plan is developed for every children, taking into account their specific needs and also the mother’s situation. Specific responses may be organized for children with special needs, namely through psychological and physical development consultations and permanent support. In both prisons, all services are concerned in providing a personalized care to children. 34 35  36) Please provide the total number of children (aged 0-17) living with parents detained in the context of the criminal justice system on 26 June 2018. Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. Table 11: Children living with parents detained in the context of the criminal justice system, 26 June 2018 Infant (<12 1-2 3-4 4-5 5-6 6-17 Total 0-17 months) M F P M F P M F P M F P M F P M F P M F P National 5 3 8 11 9 20 2 4 6 0 4 4 0 0 0 0 0 0 18 20 38 Non-national 0 0 0 0 0 0 0 1 1 1 0 1 0 0 0 0 0 0 1 1 2 Total 5 3 8 11 9 2 2 5 7 1 4 5 0 0 0 0 0 0 19 21 40 36  37) For each of the last ten years (2008-2017), please provide the total number of children aged 0-17 who entered correctional custody (prison) with parents detained in the context of the criminal justice system 1. Table 12: Children entering justice sector detention with their parents, 2008- 2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Male 18 27 29 31 28 20 27 21 24 28 Female 20 21 28 24 26 28 28 21 20 25 Total 38 48 57 55 54 48 55 42 44 53 38) Are there any specific sentencing guidelines for parents who are caregivers? For example, are parents eligible for suspended sentence, home detention, electronic monitoring, or other measures aimed at avoiding the accommodation of children in places of detention with their detained parents? There are no specific sentencing guidelines for parents who are caregivers. However, according to the Portuguese Criminal Code, while deciding the specific sentence and whether an alternative measure shall be applicable, the criminal judge must consider several factors, such as the personal situation of the sentenced individual. In this context, consideration to her family life can be given. That is the case of Article 43 (home detention), Article 45 (substitution of imprisonment by payment of monetary penalty), Article 50 (suspension of prison execution) and Article 58 (community service). 39) Which authority decides that children who have been living with detained parents shall move out of the place of detention, for instance when they reach the maximum age to remain with their parents? What preparation or support is provided to children and their parents when children are required to move out of the place of detention? Children who have reached the maximum age to remain with their mothers in the prison facilities shall in principle reside with the other parent. In cases where no other parent exist or is available /adequate to receive the child, the Family and Children Court will decide which measures shall be applied. For example, the child may stay at the grandparents’ or at other close relatives’ care. Where also such solution is not 1 Include children born to incarcerated women. 37 possible, then the child may be subjected to protection measures, including residential care. When the child has family support outside the prison, there may be a gradual preparation for leaving the mother’s care. For example, the child may start by spending some days with the other family members, in order to develop affective ties with them and to get used to other environments. Also, the mother will receive psychological support in order to minimize the negative effects of the separation. 38 IV. Children deprived of liberty in institutions For the purposes of this survey, 'institutions' 2 are defined as facilities in which children are deprived of liberty: - by action of the state (either directly or through licensing or contracting of non-state actors) - where the state has assumed or accepted responsibility for the care of the child. This excludes facilities in which parents may voluntarily place their children into the care of a private institution (not licensed or contracted by the state). Justice sector institutions should also be excluded in this section (as they are considered elsewhere in this survey). 40) Which residential and institutional facilities, whether private (state-licensed) or public, exist in your country where children are placed and thereby can be deprived of liberty for their own protection, for reasons of their education, health or disability, drug or alcohol abuse, poverty, for being separated from their parents, for being orphans, for living in street situations, for having been trafficked or abused, or for similar reasons? The intervention to promote the rights and protection of children and young people in danger occurs when parents, legal guardians or de facto guardians endanger their safety, health, education or development, or when this danger results from the acts or omissions of a third person or from the child himself/herself and those whom are responsible do not adequately act in order to remove it. Residential Care is one of the7 possible protection measures established in the Children’s Rights Protection Law (Law no. 147/99, September 1st). This law establishes that in the promotion of rights and the protection of children and should be given priority to measures that maintain them in their family or other form of stable family integration. Residential Care is therefore, under the principles of the law, a last resort that should only be considered when the other protection measures are inapplicable. 2 Institutions may include, but are not limited to, orphanages, reform schools, closed remand rooms or other correctional institutions, institutions for children with disabilities, for children with health problems (e.g. facilities dealing with behavioural disorders, psychiatric facilities), for children with drug, alcohol or other addictions, for the protection of victims of abuse including trafficking, for children without parental care, from which the children are not permitted to leave at will. 39  The residential care measure is executed in residential care units, mostly managed by licensed NGO’s. Under the Children’s Right’s Protection Law, the child that lives in a residential care unit has the following specific rights: - To keep regularly, and in privacy conditions, personal contacts with the family and with people with whom they have a special affective relation, without prejudice of the limitations imposed by judicial decision or by the protection commission; - To receive an education that guarantees the full development of their personality and potential, being provided of health care, school and professional training and participation in cultural, sports and recreational activities; - To enjoy a space of privacy and a degree of autonomy in the conduct of their personal life appropriate to their age and situation; - Be actively heard and participate, according to their degree of discernment, in all matters of their interest, including those regarding the definition and execution of their promotion and protection project and the functioning of the institution - To receive pocket money; - To be respected the inviolability their mail; - Not be transferred from the residential care unit, unless this decision corresponds to his or her best interest; - To contact, with guarantee of confidentiality, the protection commission, the Public Prosecutor's Office, the judge and his lawyer; - To be welcomed, whenever possible, in a residential unit family close to their family and social context of origin, unless their best interest advises against it; - Not be separated from other brothers and sisters, unless their best interest advises against it. 41) What procedures are available to either children or their families to appeal or challenge their placement in such institutions? Since all children that live in a residential care unit must have a promotion and protection process in the family court or in their local protection commission, they all have the possibility to challenge, at every time, the decision before the court (the court that applied the protection measure or the appeals court). If the process is pending in 40 a local protection commission, the child (or his/hers parents, legal guardian or lawyer) can request the intervention from the public prosecutor and from the family court. It is important to mention that every protection measure has to be periodically reviewed, at least, every six months. 41  42) Please provide the total number of children (aged 0-17) deprived of liberty in each of the following types of institutions on 26 June 2018: The data presented derive from the last available annual report made by the Portuguese Social Security Services in 2016 ( Instituto da Segurança Social, I.P), which only covers children with a protective measure, either decided by the child protection commissions or courts. Portugal does not have orphanages. The orphans are placed in residential homes along with all the children victim of negligence or abuse, which we have placed under the category G) other institutions for children without parental care. A) Orphanages B) Reform schools or other correctional institutions outside the justice system C) Institutions for children with disabilities D) Institutions for children with health problems (e.g. facilities dealing with behavioral disorders, psychiatric facilities) E) Institutions for children with drug, alcohol or other addictions F) Institutions for the protection of victims of abuse including trafficking G) Other institutions for children without parental care Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. Table 13: Children deprived of liberty in institutions (as defined), 26 June 2018 Less than 3 years 3-5 6-9 10-13 14-17 Total (ages 0-17) old Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total Nat Non- Total nat. nat. nat. nat. nat. nat. A) Orphanages Male 42 Female Total (A) B) Reform schools or other correctional institutions outside the justice system Male Female Total (B) C) Institutions for children with disabilities Male 1 1 4 4 25 5 30 44 6 50 73 12 85 Female 3 3 11 11 16 3 19 30 3 33 Total (C) 1 1 7 7 36 5 41 60 9 69 103 15 118 D) Institutions for children with health problems (e.g. facilities dealing with behavioral disorders, psychiatric facilities) Male 2 2 33 2 35 35 2 37 Female 1 1 28 3 31 29 3 32 Total (D) 3 3 61 5 66 64 5 69 E) Institutions for children with drug, alcohol or other addictions Male 6 1 7 100 6 106 106 7 113 Female 2 2 35 2 37 37 2 39 Total (E) 8 1 9 135 8 143 143 9 152 F) Institutions for the protection of victims of abuse including trafficking Male Female Total (F) G) Other institutions for children without parental care Male 237 25 262 246 25 241 395 69 464 646 97 743 1646 211 1857 3170 427 3597 Female 202 19 221 185 30 215 279 38 317 586 70 656 1611 194 1805 2863 351 3214 43  Total (G) 439 44 483 431 55 486 674 107 781 1232 167 1399 3257 405 3662 6033 778 6811 Total children deprived of liberty in institutions (as defined) Male Female Total (G) 43) Please provide the total number of children aged 0-17 placed into institutional detention, in each of the following institution types, in each of the last 10 years. A) Orphanages B) Reform schools or other correctional institutions outside the justice system C) Institutions for children with disabilities D) Institutions for children with health problems (e.g. facilities dealing with behavioral disorders, psychiatric facilities) E) Institutions for children with drug, alcohol or other addictions F) Institutions for the protection of victims of abuse including trafficking G) Other institutions for children without parental care Table 14: Children deprived of liberty in institutions (as defined), 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F A) Orphanages B) Reform schools, etc. C) Institutions for 93 61 154 85 33 118 children with disabilities 44 D) Institutions for 42 19 61 37 32 69 children with health problems E) Institutions for 142 44 186 113 39 152 children with drug, alcohol or other addictions F) Institutions for the protection of victims of abuse G) Other 3472 3219 6691 3597 3214 6811 institutions for children without parental care 44) Please provide information on all alternatives to the deprivation of liberty of children in institutions. The protection measures established in the Children’s Rights Protection Law, in alternative to residential care, are the following: - Parental support; -Extended family support; - Third person custody (someone who has a pre-existent affective relationship with the child); - Support for autonomous life; 45  - Foster family care; - Adoption. 45) Have there been any major legislative or policy changes related to the (de-) institutionalization of children during the last ten years (2008-2017)? If so, which impact have these changes had on the number of children deprived of liberty? In the last ten years there have been two significant legal changes in order to promote the de-institutionalization of children. The first was introduced by Law no. 103/2009, September 11th, which established the regime of Civil Sponsorship (Apadrinhamento Civil). Civil Sponsorship is legal relationship, usually of a permanent nature, between a child and a natural person or a family that exercises the parental responsibilities and establish with him /her affective bonds that promote their well-being and development. This measure was particularly designed for children in residential care or benefiting from other protection measures. Without calling into question the relevance and importance of this measure for some children, the fact is that the results from a de-institutionalization point of view are non-significant, since from 2010 until 2015 only 320 measures were applied. This does not imply a negative judgement regarding this measure, only states its limited effects as an alternative to residential care. More recently, in 2015, an amendment (Law no. 142/2015, September 8th) to the Child’s Rights Law established that if it is necessary to apply a placement measure, the placement in a foster family must be privileged for children under the age of 6, instead of residential care. 46) Please provide examples of good practices aimed at preventing the detention of children and reducing the number of children deprived of liberty in institutions. In 2011 the Calouste Gulbenkian Foundation - one of the most significant non-governmental institutions in Portugal – developed a project in order to support initiatives from residential care units, identifying good practices that not only had a positive impact in children’s life’s, but also contributed to prevent abuse and neglect, promote autonomy and de-institutionalization. This pilot-project 46 involved 4 institutions and lasted until 2016. It also envisaged to strengthen personal, social and emotional skills of children and young people, preparing them for autonomy; training the technical and educational staff of residential care units; thus contributing to the production of scientific knowledge and innovation that can sustain changes in the national system through better and more effective intervention practices. In 2018 a report was launched with a full description of the project and with 28 recommendations supporting the adoption of policy changes focused in the full compliance with children’s rights. More information can be found at https://gulbenkian.pt/noticias/pensar-o-acolhimento-residencial-de-criancas-e-jovens/ 47 V. Children deprived of liberty in the context of armed conflict 47) Is your country interning children as Prisoners of War (POWs) or civilians for security reasons in the context of an international armed conflict? No. 48) If yes, please provide the total number of children (aged 0-17) who have been interned as POWs or civilians on 26 June 2018 for security reasons in the context of an international armed conflict. Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. Less than 10 10-11 12-13 14-15 15-16 16-17 Total (ages 0- years old 17) Na No Tot Na No To Na No To Na No To Na No To Na No To Na No To t n- al t n- tal t n- tal t n- tal t n- tal t n- tal t n- tal nat nat nat nat nat nat nat . . . . . . . Prisoners of war (POW) Male Female Total POW Civilians Male Female Total Civilians Total Male Female Total 48  Table 15: Children deprived of liberty in the context of armed conflict, 26 June 2018 49) For each of the last 10 years (2008-2017), please provide the total number of children aged 0-17 taken into internment as POWs or civilians for security reasons in the context of an international armed conflict. No children have been taken into internment as POWs or civilians for security reasons in the context of an international armed conflict in the last 10 years. Table 16: Children deprived of liberty in the context of armed conflict, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Prisoners of War Civilians 50) Is your country currently detaining children for actual or suspected involvement with non-state armed groups? If so, please specify the legal basis. No. 51) May children be detained solely for affiliation with a non-state armed group, or only for an additional offense committed as part of a non-state armed group? N/A 49 52) Under whose authority are children detained for involvement with non-state armed groups? N/A 53) What type of facilities are used to detain children for involvement with non-state armed groups? N/A 54) Please provide the total number of children (aged 0-17) deprived of liberty on 26 June 2018 for involvement with non-state armed groups, N/A A) having been charged with a criminal offense B) in administrative/security detention (i.e. to prevent their return to the armed group and/or participation in hostilities) Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. Table 17: Children deprived of liberty for involvement with non-state armed groups, 26 June 2018 50  Less than 10 10-11 12-13 14-15 15-16 16-17 Total (ages 0- years old 17) Na No Tot Na No To Na No To Na No To Na No To Na No To Na No To t n- al t n- tal t n- tal t n- tal t n- tal t n- tal t n- tal nat nat nat nat nat nat nat . . . . . . . A) Charged with a criminal offense related to involvement with armed groups Male Female Total charged B) Administrative/security detention related to involvement with armed groups Male Female Total administrative Total Male Female Total 55) For each of the last ten years (2008-2017), please provide the total number of children taken into detention for involvement with non-state armed groups, A) having been formally charged with a criminal offense B) in administrative/security detention (i.e. to prevent their return to the armed group and/or participation in hostilities) 51 Table 18: Children deprived of liberty for involvement with non-state armed groups, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Charged with a criminal offense Administrative/security detention 56) If children affiliated with non-state armed groups are charged with a specific offense, are they subject to military or civilian courts? N/A 57) What sentencing options are available for children convicted of offenses related to their involvement with non-state armed groups? N/A 58) For each of the last ten years (2008-2017), please provide the number of children deprived of liberty in relation to their involvement with non-state armed groups and sentenced to the following: N/A A) Prison sentence (except life imprisonment) B) Life sentence C) Capital punishment 52 Table 19: Children sentenced to prison, life sentence or capital punishment in relation to involvement with non-state armed groups, 26 June 2018. 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Prison Life sentence Capital punishment 53 59) What processes are available to either children or their families to appeal or challenge their detention due to involvement with armed groups? N/A 60) Please provide information on all alternatives to the deprivation of liberty of children involved with armed groups that are provided for by law, policy or practice. N/A 61) Please provide examples of good practices aimed at preventing the detention of children and reducing the number of children deprived of liberty for involvement with armed groups. N/A 54 55 VI. Children deprived of liberty on national security grounds N/A Less than 10 10-11 12-13 14-15 15-16 16-17 Total (ages 0- years old 17) Nat Non Total Nat Non- Tota Nat Non- Tota Nat Non- Tota Nat Non- Tota Nat Non- Tota Nat Non- Tota -nat. nat. l nat. l nat. l nat. l nat. l nat. l A) administrative/security detention Male Female Total charged B) pre-trial detention (police custody and remand detention) Male Female Total administrative C) Imprisonment after conviction and sentence Male Female Total 56 Total Male Female Total 62) Please describe the legal framework related to the deprivation of liberty of children on national security grounds, including any special provisions related to children. N/A 63) Under your penal law, is association with a terrorist organization or other criminal group considered a criminal offense? If so, please provide details. Yes. Law n. 52/2003 of 22 August, punishes the membership of terrorist organizations. Terrorist organizations are those that were constituted in order to menace the national integrity and independence, to prevent, to alter or to subvert the functioning of the State and other institutions provided for in the Constitution, to force public authority to practice an act, to refrain from practicing it or to tolerate it being practiced, or to intimidate certain persons, groups of persons or the general population, by committing: a) a crime against the life, the physical integrity or the freedom of the people; (b) a crime against the security of transport and communications, including computer, telegraphic, telephone, radio or television; (c) a crime of deliberate production of a common hazard by means of fire, explosion, release of radioactive substances or toxic or asphyxiating gases, flood or avalanche, construction collapse, contamination of food and water intended for human consumption or dissemination of disease, pest, plant or animal; d) acts that destroy or render impossible the operation of means of communication or public service facilities or deprive them of pursuing their activities, definitively or temporarily and totally or partially; (e) are dedicated to research and development of biological or chemical weapons; (f) crimes involving the use of nuclear energy, firearms, biological or chemical weapons, explosive substances or devices, incendiary devices of any kind, consigned orders or traps. If these activities are likely to seriously affect the State or population to be intimidated, they are considered terrorist activities. 57  Anyone who promotes or establishes a terrorist group, organization or association to support or support them, in particular through the provision of information or material means, shall be punished with imprisonment of 8 to 15 years. Any person who heads or directs a terrorist group, organization or association shall be punished by imprisonment for 15 to 20 years. Activities aimed at financing terrorism are also punished. 64) Please provide the total number of children (aged 0-17) deprived of liberty on 26 June 2018 on national security grounds in: A) administrative/security detention? B) pre-trial detention (police custody and remand detention)? C) imprisonment after conviction and sentence? Please provide data disaggregated by age and nationality (citizens/non-citizens) where possible. N/A. Table 20: Children deprived of liberty on national security grounds, 26 June 2018 65) For each of the last ten years (2008-2017), please provide the total number of children aged 0-17 taken into detention on national security grounds in: A) administrative/security detention B) pre-trial detention (police custody and remand detention) C) imprisonment after a conviction and sentence N/A. 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P 58  Administrative/security detention Pre-trial detention Imprisonment Table 21: Children deprived of liberty on national security grounds, 2008-2017 66) Are children charged with terrorism/national security offenses subject to military or civilian courts? Criminal legislation (depending on the age) is applicable. 67) What sentencing options are available for children convicted of terrorism/national security offenses? Anyone who promotes or establishes a terrorist group, organization or association to support or support them, in particular through the provision of information or material means, shall be punished with imprisonment of 8 to 15 years. Any person who heads or directs a terrorist group, organization or association shall be punished by imprisonment for 15 to 20 years. Criminal legislation (depending on the age) is applicable. 68) What is the longest prison sentence that can be applied to a child convicted of terrorism/national security offenses? No special provisions are foreseen for children. 69) May they be sentenced to life imprisonment? No. 70) May they be sentenced to capital punishment? No. 59  71) How many children have been sentenced to life imprisonment or capital punishment in each of the last ten years (2008-2017), either by a civilian or a military court? N/A. Table 22: Children sentenced to life sentence or capital punishment by a civilian or a military court on national security grounds, 2008-2017 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P Life sentence Civilian court Military court Total Prison Capital punishment Civilian court Military court Total Capital Punishment 72) Please provide information on all alternatives to the deprivation of liberty for children considered to pose threats to national security that are provided for by law, policy or practice (whether in police custody, pre-trial detention, or imprisonment after conviction). N/A. 60 73) Have there been any major legislative or policy changes related to children suspected of terrorism/national security offenses during the last ten years (2008-2017)? If so, which impact have these changes had on the number of children deprived of liberty? No. N/A. 74) Please provide examples of good practices aimed at preventing the detention of children and reducing the number of children considered to pose threats to national security who are deprived of liberty. N/A. 61 VII. General 75) Please provide the estimated resident population for your country for each of the last 10 years (population as at the midpoint), disaggregated by age, sex and nationality (citizens/non-citizens). (If data is not available for the each of the last 10 years, please provide the 3 most recent population estimates). Data collection type (e.g. Census, administrative records, etc.): Organisation responsible for producing population estimates: Data Collection Type: Census and administrative records. Organisation responsible for producing population estimates: National Statistics Institute (INE) 62 Table 23: Estimated resident population by age and nationality, 2008-2017 Less than 10 years old 10-14 15-19 Total 18+ Total population children (all ages) (0-17) M F P M F P M F P M F P M F P M F P 2008 55448 52694 108142 28210 26745 54956 29516 28367 57884 998020 506623 549677 105630 5 0 5 1 9 0 7 4 1 2 9 5 14 Nation 53946 51284 105231 27139 25714 52854 28133 27079 55213 483567 528706 101227 al 3 8 1 6 4 0 3 8 1 4 3 37 Non- 6600 14092 29150 10705 10315 21020 13834 12876 26710 230565 209712 440277 nation al 2009 54394 51867 106261 28437 27100 55537 29297 28128 57425 838122 506374 550973 105734 0 6 6 0 7 7 0 8 8 8 5 4 79 Nation 52953 50544 538799 27342 26050 53393 27880 26817 54697 482933 528995 101192 al 0 0 6 6 2 1 5 6 3 5 88 Non- 14410 13236 27646 10944 10501 21445 14169 13113 27282 234412 219779 454191 nation al 2010 52847 50309 103156 28821 27539 56360 28940 27773 56714 841040 505354 551917 105727 0 5 5 4 4 8 7 7 4 4 3 8 21 Nation 51470 49051 100522 27803 26553 54357 27577 26503 54080 482797 529948 101274 al 9 7 6 7 8 5 2 4 6 9 0 59 Non- 13761 12578 26339 10177 9856 20033 13635 12703 26338 225564 219698 445262 nation al 2011 51865 49482 101347 28600 27341 55942 28543 27345 55889 841060 503043 551196 105423 6 0 6 8 6 4 7 3 0 8 7 1 98 Nation 50445 48175 986206 27651 26424 54075 27211 26101 53313 481130 529427 101055 al 6 0 1 5 6 8 5 3 0 6 76 Non- 14200 13070 27270 9497 9171 18668 13319 12438 25757 219137 217685 436822 nation al 63 2012 50893 48589 994835 28463 27073 55536 28133 26987 55120 838588 499569 549159 104872 7 8 6 0 6 2 4 6 2 7 2 89 Nation 49516 47327 968446 27588 26246 53834 26848 25786 52634 478918 528106 100702 al 7 9 0 3 3 8 0 8 4 3 47 Non- 13770 12619 26389 8756 8267 17023 12844 12014 24858 206513 210529 417042 nation al 2013 49662 47429 970916 28268 26825 55093 27981 26765 54747 835797 495802 546928 104273 3 3 0 8 8 5 5 0 7 0 1 01 Nation 48329 46221 945513 27437 26072 53509 26757 25587 52344 476247 526350 100259 al 4 9 4 2 6 3 6 9 6 5 81 Non- 13329 12074 25403 8306 7536 15842 12242 11779 24021 195544 205776 401320 nation al 2014 48601 46355 949267 27747 26320 54067 28206 27030 55237 833250 492366 545115 103748 6 1 0 4 4 8 5 3 8 6 6 22 Nation 47315 45173 942892 26971 25617 52589 27014 25902 52916 473210 524752 997962 al 8 4 7 8 5 4 5 9 1 6 7 Non- 12858 11817 24675 7753 7026 14779 11924 11280 23204 191565 203630 395195 nation al 2015 24905 45491 931070 27186 25790 52976 28605 27431 56036 832013 490150 543982 103413 7 3 0 2 2 0 3 3 5 9 1 30 Nation 46396 44369 907661 26451 25138 51590 27465 26370 53836 471286 523973 995259 al 2 9 9 2 1 9 1 0 4 5 9 Non- 12195 11214 23409 7341 6520 13861 11391 10612 22003 188645 200086 388731 nation al 2016 47003 44821 918248 26835 25581 52416 28502 27313 55816 830899 488245 542711 103095 5 3 7 1 8 8 7 5 2 6 7 73 Nation 45828 43729 895582 26103 24930 51033 27415 26299 53714 468965 522218 991184 al 8 4 3 1 4 0 9 9 5 7 2 Non- 11747 10919 22666 7324 6510 13834 10878 10138 21016 192801 204930 397731 nation al 2017 46458 44359 908174 26356 25215 51572 28430 27160 55591 831122 486769 542333 102910 1 3 9 3 2 2 9 1 0 2 5 27 64 Nation al Non- nation al 76) Please provide any recent reports or recommendations from relevant monitoring bodies with authority to monitor children’s deprivation of liberty (all kinds) in your country. The more recent concluding observations of the Committee on the Rights of the Child, on the third and fourth periodic reports of Portugal, dated 31st January 2014, highlighted several recommendations regarding children’s deprivation of liberty. Regarding Alternative Care of Children, it drew attention to the United Nations General Assembly resolution 64/142 of 20 December 2009, and claimed for: (a) Further strengthen the support provided to biological families to prevent out of home placements, strengthen family-based care provisions, like extended family and foster care and residential care systems, and take all necessary measures to ensure that alternative care for young children, especially those under the age of 3 years, should be provided in family-based settings; (b) Continue to develop and implement an overall deinstitutionalization strategy of residential care facilities with precise goals and objectives with a view towards their progressive elimination; (c) Ensure adequate support and resources to ensure that children deprived of a family environment are treated with dignity and respect and benefit from effective protection in all care settings; 65 (d) Ensure the implementation of coordinated policies regarding alternative care with special attention paid to the quality of care, both in residential and family based-care, in particular with regard to professional skills, selection, training and supervision of care- givers; (e) Strengthen its mechanisms for collecting and systematically analyzing information and disaggregated data on children in all alternative care settings. Regarding Children detained for migratory reasons, it applauded the provisions that, at the time, exempted asylum seekers who are minors and their family members from detention at border crossing points during the admissibility stage of the proceedings. However, as stated above, the Asylum Law was then amended, allowing for broader cases of asylum detention. The Committee also recommended that Portugal should: Ensure the timely processing of claims to reduce waiting time of asylum seekers; b) Improve asylum procedures regarding unaccompanied and separated children, in line with general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, and in particular, by communicating the case to the competent Commission for the Protection of Children and Young People; c) Increase the accommodation capacity of the reception system to respond to the higher number of asylum-seekers arriving in Portugal, and ensure that reception centers are child-friendly and conform to applicable UN standards. The Ombudsman, in its quality as National Preventive Mechanism, has issued several recommendations for children in educational guardianship centers and also for migrant children detained in the airport’s temporary detention centers. Regarding this latter situation, the Ombudsman clearly stated that airports’ centers did not provide adequate reception conditions for children. These reports can be found in: http://www.provedor-jus.pt/?idc=108&idi=17554 http://www.provedor-jus.pt/site/public/archive/doc/Cidadaos_estrangeiros_e_o_direito_a_um_tratamento_digno.pdf In 2015 a special report was enacted on educational guardianship centers, were several recommendations were made. 66  http://www.provedor-jus.pt/site/public/archive/doc/ce_mnp_05012017.pdf 77) Have there been any studies or research on the impact of deprivation of liberty (all kinds) on children? If so, what are the results? There are not many studies or research on the impact of deprivation of liberty on children. However, some official monitoring entities have reported some important conclusions. The Commission for the Monitoring and Supervision of Educational Centers stated in 2016 that of the 186 young people who, in February 2015, met educational guardianship measures, 144 were also indicated for promotion and protection procedures. The Directorate of Juvenile Justice Services has recently enacted a study (January 2018), were it has accompanied the route of 191 youngsters who have been subjected to educational guardianship measures and has concluded that 31% of these youngsters returned to crime two years after the end of the measures. The study conclusions are available in: https://portal.oa.pt/comunicacao/imprensa/2018/03/06/dois-anos-apos-saida-de-centros-educativos-31-dos-jovens-reincidem/ 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 M F P M F P M F P M F P M F P M F P M F P M F P M F P M F P A) Justice sector 1 1 B) Migration-related C) In detention with 1 1 1 1 parents D) Institutions E) Armed conflict F) National security grounds 67  Total child deaths 2 2 during deprivation of liberty Table 24: Child deaths during deprivation of liberty by context, 2008-2017 Please note: No data was provided by SEF for Child deaths during deprivation of liberty in Migration context. 68