1. The Ombudsman as the National Preventive Mechanism
1.1. Introduction
The constitutional and legal framework of the Ombudsman’s mission is the precursor of a model that binds the essential features of the classical Ombudsman - whose
function is to take charge of complaints presented by citizens against illegal or unfair
actions or omissions from the public administration - with the model of Ombudsman
for Human Rights. This dimension, with universalizing vocation, derives from the constitutional provision that empowers the Portuguese Ombudsman with the capacity to
the monitor the application of international treaties and conventions on human rights(1).
The Portuguese State has approved and ratified the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)(2), which came into force in February 14th, 2013(3).
Among the various reasons that founded the genesis of this Protocol we highlight the
fact that the contracting parties have recognized the need for consecration of additional
measures to achieve the objectives established in the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)(4)(5). These measures are pointed at a more effective prevention of torture and other cruel treatments or
punishments in places where people are deprived of their liberty.
The OPCAT aim is to establish a preventive system of regular visits to places of
detention, in order to achieve an enhanced protection through non-judicial means, of
persons deprived of liberty.
To accomplish this goal - the establishment of regular visits - the OPCAT
demands that this visitation system is carried out either by international organizations
(having therefore provided the creation of the Subcommittee on Prevention of Torture
(1) Cf. paragraph 2 of Article 1 of Law No. 9/91, April 9th, as amended by Law No. 30/96, of August 14th, Law No.
52-A/2005 October 10th and Law No. 17/2013 of February 18th, which approved the Statute of the Ombudsman.
(2) The OPCAT was approved by the Parliament Resolution No. 143/2012 of December 13th and ratified by Decree of the President of the Republic No. 167/2012 of December 13th. The instrument of ratification was deposited
with the Secretary General of the United Nations on January 15th, 2013, according to the Notice No. 40 of the
Ministry of Foreign Affairs published in the Official Journal, Series I, No. 57, March 21st.
(3) On the thirtieth day after the date on which Portugal deposited its instrument of ratification with the UN
Secretary General, pursuant to paragraph 2 of Article 28 of OPCAT.
(4) This Convention was adopted by the Parliament Resolution No. 11/1988 of December 23rd and its ratified by
the Decree of the President of the Republic No. 57/88 of July 20th. The instrument of ratification was deposited,
on February 9th, 1989, with the UN Secretary General, according to the Ministry of Foreign Affairs notice published
in the Official Journal, Series I, No. 128 of June 5th.
(5) OPCAT’s Preamble.
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