Yesterday, May 23rd, the outcome was made public that the European Committee of Social Rights has decided that Portugal is in breach of its human rights obligations under the European Social Charter because it has not banned all corporal punishment of children in the home and alternative care. Article 17 of the European Social Charter requires a prohibition in legislation against any form of violence against children in all settings.
After the Portuguese Supreme Court decided on April 5, 2006, that “moderate punishments administered to the minor by the person entitled to do it and whose purpose is exclusively educational and adequate to the situation, are not unlawful ”, in the context of a case on cruelty and ill treatment against children, the World Organisation Against Torture (OMCT) lodged a collective complaint against Portugal on the grounds that the law, as interpreted by the Portugal’s highest Court, tolerates corporal punishment. This is a new interpretation of the law by the Supreme Court which constitutes a worrisome reversal as precedent in Portugal.
In 2003, OMCT lodged a first a complaint against Portugal on the grounds that its legislation failed to protect children from corporal punishment and other humiliating treatment. However, when responding to this complaint in June 2005, the European Committee of Social Rights decided that, according to an earlier decision of the Supreme Court, Portugal’s caselaw did prohibit all corporal punishment.
On June 12th 2006, OMCT’s second complaint was declared admissible. During the procedure, the Portuguese Government maintained that its Criminal Code explicitly prohibits violence against children. It added that the Criminal Code is currently being revised to establish a new offence, in articles 152 and 152A, for inflicting physical or psychological ill-treatment, including corporal punishment, in cases where the infliction is “intense or repeated”. However this reform is not satisfactory for child rights’ defenders: combined with the current interpretation of the Supreme Court, Portuguese law does not allow progress in the rights of the child yet.
This time, the European of Social Rights has decided unanimously that Portugal does not ensure the satisfactory application of Article 17 of the Charter and fails to protect children from corporal punishment and other humiliating treatment in all situations including at home. “OMCT is pleased of this decision, and we wish that, from now, Portugal will fully conform to its obligations under the European Social Charter by explicitly and effectively prohibiting all corporal punishment of children” said Cécile Trochu Grasso from OMCT. “It is important that all the other European States parties to the European Social Charter which still fail to comply with article 17 reform their legislation in order to achieve the right of all European children to equal protection from being hit” added Peter Newell from the Global Initiative to End All Corporal Punishment of Children.
It is important to note that in 2007, European countries such as Belgium, Czech Republic, France, Greece, Luxembourg, Malta, Netherlands, Poland, the Slovak Republic, Slovenia, Spain, Switzerland, Turkey and United Kingdom remain in breach of article 17 for not prohibiting all corporal punishment.