Date: June 2007

Portugal in breach of Revised European Social Charter for not prohibiting corporal punishment in the home

The European Committee of Social Rights has declared Portugal to be in breach of article 17 of the Revised European Social Charter because there is no explicit prohibition in law of all corporal punishment of children, including in the home. The Committee’s decision was adopted in December 2006 and is now available on the Council of Europe website (www.coe.int) (and see below).

Under the collective complaints procedure of the Social Charter [check], the World Organisation Against Torture (OMCT) argued that, despite earlier judgments to the contrary, a Portuguese Supreme Court decision of 5 April 2006 clearly indicated that corporal punishment was lawful and socially accepted. The Supreme Court’s judgment stated:

“As far as the children in question is concerned ... the acts with which the defendant is charged should, in our view, be considered lawful.

"In the upbringing of the human being moderate punishment that can be corporal or other forms of punishment is justified....

‘Who being a good parent does not, once or twice, slap the bottom of the child refusing to go to school? Does not slap the child who throws a knife at him? Or punishes a child by sending it to his room when it does not want to eat?

"As for the first two, we can even say that if the person having the lawful control or charge of the child would refrain from acting, then yes, that would amount to educational neglect. Many children refuse at times to go to the school. Because of its outmost importance, going to school has to be strongly imposed. It is obvious that in case of repeated school phobia, it would be advisable to find out the reasons and even get professional counselling. But should it happen once or twice, slapping (always moderate) the bottom is part of the method of upbringing.

"Similarly, to throw a knife and what’s more at the person raising him, justifies, within the framework of a stable upbringing, emphasizing to the child that it did wrong and let it see the possible consequences. A slap in the heat of the moment cannot be considered extreme...’”

In ruling that Portugal was in breach of its human rights obligations under European human rights law, the European Committee of Social Rights clearly stated the need for explicit and effective prohibition of corporal punishment (paras. 19 to 22):

“To comply with Article 17, states’ domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children.

The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children.

Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.

The conclusion to be drawn from the Supreme Court’s decision of 5 April 2006 is that Portuguese law does not include such provisions, even though this was the interpretation that had been drawn from a previous decision of that court. In addition, the Government has not supplied information to show that the measures in practice are likely to result in the eradication of all forms of violence against children.

CONCLUSION

For these reasons, the Committee concludes unanimously as to the violation of Article 17 of the Revised Charter.”

The full text of the Committee’s decision is available in PDF format here.

Details of Portuguese laws relating to corporal punishment are in the full country report for Portugal.

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