Lawfulness of corporal punishment

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Corporal punishment is prohibited in the home. Article 152 of the Penal Code was amended in September 2007 (by Law 59/2007) to state: “Whoever repeatedly, or not, inflicts physical or psychological ill-treatment, including corporal punishment, deprivation of liberty and sexual offences, is punished with 1 to 5 years of imprisonment.”

According to the Civil Code, parent-child relations are characterised by obedience and parental authority (article 1878). A 1994 Supreme Court decision (Supremo Tribunal de Justiça, 9 February 1994) ruled that this article does not give parents the right to raise their children through physical aggression. In an earlier decision (18 December 1991), the Supreme Court had ruled that a simple slap, which had caused no injury and no physical or mental suffering, is considered as “light corporal assault” and a crime punishable under article 143.1 of the Criminal Code (1982, reformed in 1995 through Decree Law 48/95), which punishes “whoever causes bodily injury or impairment of health of another”. This ruling was confirmed in subsequent Supreme Court Decisions (21 January 1999 and 4 March 1999), and a Court of Appeal Decision (12 October 1999) refers to the absence of a “right” to use physical discipline in the Civil Code. But in April 2006 the Supreme Court ruled that slaps and spankings are “legal” and “acceptable”, and that failure to use these methods of punishment could even amount to “educational neglect”.

Following a complaint against Portugal brought in 2003 by the World Organisation Against Torture under the Collective Complaints procedure of the European Social Charter, the European Committee of Social Rights concluded by 9 votes to 4 that there was no violation of Article 17 of the Revised Charter because section 143 of the Criminal Code as interpreted by the Supreme Court provided a legal prohibition of all forms of corporal punishment of children and that no legal provision authorises the use of corporal punishment of children (Resolution ResChS(2005)1, Collective complaint No. 20/2003 by the World Organisation against Torture (OMCT) against Portugal, adopted by the Council of Ministers on 20 April 2005). The 2006 Supreme Court ruling contradicted the government’s position as presented to the European Committee of Social Rights in this complaint.

In May 2006, immediately following the April 2006 Supreme Court ruling, OMCT submitted a second complaint alleging that domestic law in Portugal did not explicitly nor effectively prohibit all corporal punishment of children (OMCT vs Portugal Collective complaint No. 34/2006). The Committee declared the complaint admissible in June 2006 and in December 2006 found the situation in Portugal to be not in conformity with article 17 of the Social Charter because all corporal punishment was not prohibited. The government subsequently announced that it would explicitly prohibit all corporal punishment. Following a review of the Criminal Code, explicit prohibition was enacted and came into force on 15 September 2007.

Schools

Corporal punishment is prohibited in schools. The list of permitted punishments in Decree 679/77 (1977) does not include corporal punishment. Section 188 of the Education Law No. 166/99 of 14 September 1999 prohibits the application of any measure which results in cruel, inhuman or degrading treatment or which can compromise the physical or psychological health of the child and in addition, the application of a disciplinary measure shall in no case result in corporal punishment. Article 13.1 of the Pupil’s Statute (Law No. 30/2002), applicable to public and private schools, states that the pupil has the right to respect for “physical and moral integrity”. The Criminal Code also applies (see above).

Penal system

Corporal punishment is unlawful as a sentence for crime under the Criminal Code and the Law on Educational Guardianship, which applies to young persons aged 12-16 years.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. Article 188 (2) of the Law on Educational Guardianship states that “the application of a disciplinary measure may not, in any case, translate, directly or indirectly, into the application of a corporal punishment”, and the permitted disciplinary measures in article 194 do not include corporal punishment. Decree Law 323-D/2000 states that only these measures may be applied in Educational Centres (article 99) and establishes limited conditions for the use of force (article 90). The Criminal Code and article 25 of the Constitution also apply (see above).

Alternative care

There is no explicit prohibition of corporal punishment is prohibited in all other institutions and forms of childcare, and the 2006 Supreme Court ruling (see above) concerned the corporal punishment of children with mental disabilities in a children’s institution. The Criminal Code applies (see above).

Workplace

No information

Prevalence research

Telephone interviews with 809 adults aged 18 years and over in April 2004, revealed that 83% believe it is acceptable for parents to smack their children, including one in six (16%) who believe it is always acceptable and a further two thirds (67%) who believe there are some circumstances in which it is acceptable. Just over one in ten (13%) believe it is unacceptable in any circumstances. (Market & Opinion Research International, 2004, “Attitudes towards smacking children: Portugal”, Research conducted for the Association for the Protection of All Children)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“Noting its 1995 concluding observations, the Committee is concerned that corporal punishment continues to be practiced within the family, there is a lack of legislation prohibiting such punishment, and that insufficient measures have been adopted to prevent corporal punishment in this context.

“The Committee recommends that the State party:

1. adopt legislation prohibiting corporal punishment in the family and in any other contexts not covered by existing legislation;
2. develop mechanisms to end the practice of corporal punishment, including the use of information campaigns targeting parents, teachers and children;
3. promote positive, participatory, non-violent forms of discipline as an alternative to corporal punishment at all levels of society;
4. develop mandatory reporting systems for professionals working with children who detect the use of corporal punishment in the family.”

 (6 November 2001, CRC/C/15/Add.162, Concluding observations on second report, paras. 26 and 27)

“The Committee is worried about the insufficient measures adopted to prevent and fight abuse and corporal punishment, in particular within the family....

“The Committee recommends that the authorities take the necessary measures, including the implementation of a national policy, to prevent abuse and corporal punishment of children, including within the family.”
(27 November 1995, CRC/C/15/Add.45, Concluding observations on initial report, paras. 15 and 23)

European Committee of Social Rights

“The Committee notes that the protection of children against all forms of violence, including corporal punishment, is based on the Constitution. The report states that pursuant to Section 188 of the Education Law No. 166/99 of 14 September 1999 it is prohibited to apply any measure which results in cruel, inhuman or degrading treatment or which can compromise the physical or psychological health of the child and in addition, the application of a disciplinary measure shall in no case result in corporal punishment. Furthermore, the Supreme Court in a decision of 1994, interpreted Article 143 of the Criminal Code as prohibiting the use of any form of physical violence against children likely to pose a threat to their physical integrity, their personal dignity or their physical or psychological development. The Committee asks that the next report explain how the Supreme Court decision effectively prohibits the corporal punishment of children in the home. It also asks that the next report provide any information on whether and when this ruling has been confirmed in legislation.”
(March 2005, Conclusions XVII-2)

“The Committee wishes to know whether legislation prohibits all forms of corporal punishment of children, in schools, in institutions, in the home and elsewhere….”
(1 January 2001, Conclusions XV-2 vol. 2, pages 504-506)

“The Committee nevertheless recalled that this provision of the Charter was intended to guarantee children and young people a wide measure of protection, outside the workplace, which required general protection against all the physical and moral dangers to which they were exposed. It therefore wished to receive information in the next report in:

...

- the measures and the supervisory system to eliminate corporal punishment and abuse of children...

Pending receipt of the requested information, the Committee deferred its conclusion.”
(1 January 1996, Conclusions XIII-3, pages 310-311)

Committee Against Torture

“Le Comité s’inquiète des informations reçues faisant état de nombreux cas de violence domestique affectant les femmes et les enfants, ainsi que du nombre élevé de femmes décédées, suite à ces violences. Par ailleurs, le Comité est vivement préoccupé par la décision du 5 avril 2006 de la Cour Suprême selon laquelle ‘les châtiments corporels modérés administrés à un mineur par une personne habilitée à le faire, et dans un but exclusivement éducatif et adéquat à la situation, ne sont pas illégaux’ dans le cadre familial. (article 16)

L’État partie devrait renforcer ses efforts pour mettre sur pied une stratégie au niveau national visant à prévenir et à combattre la violence domestique à l’égard des femmes et des enfants. Il devrait prendre les mesures nécessaires pour interdire dans sa législation les châtiments corporels à l’encontre des enfants au sein de la famille. L’État partie devrait garantir l’accès des femmes et des enfants victimes de violence à des mécanismes habilités à recevoir des plaintes ; sanctionner les auteurs de ces actes de manière appropriée, et faciliter la réadaptation physique et psychologique des victimes. 

L’État partie devrait par ailleurs s’assurer que les agents de la force publique reçoivent une formation continue et ciblée sur la question de la violence à l’égard des femmes et des enfants.”
(22 November 2007, CAT/C/PRT/CO/4 Advance Unedited Version, Concluding observations on fourth report, para. 15) (as at 6 February 2008, available only in French)