Complaint No. 34/2006
by the World Organisation against Torture (OMCT) against Portugal
(Adopted by the Committee of Ministers on 27 February 2008
at the 1019th meeting of the Ministers' Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints,
Taking into consideration the complaint lodged on 31 May 2006 by the World Organisation against Torture (OMCT) against Portugal,
Having regard to the report transmitted by the European Committee of Social Rights, in which the European Committee of Social Rights concluded unanimously that there was a violation of Article 17 of the Revised Charter:
“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.”
Having regard to the information communicated by the Portuguese delegate during the 995th meeting of the Ministers’ Deputies, and the information submitted subsequently by the respondent government stating that Portugal has amended its legislation in order bring the situation into conformity with the Revised Charter;
1. Takes note of the information that Portugal has amended the Penal Code to prohibit the corporal punishment of children and that the new Article reads as follows :
1. Anyone who inflicts, whether or not repeatedly, physical or psychological punishment, including corporal punishment, deprivation of liberty or sexual assaults on:
d) a person with no means of defence, on account of age, impairment, illness, pregnancy or financial dependency, and living in the same residence, shall be liable to imprisonment of from 1 to 5 years, unless a harsher sentence is imposed under another legal provision.
2. In the case specified in paragraph 1, if the perpetrator commits the offence against a minor, in the presence of a minor, in the shared residence or in the victim's residence, he or she shall be liable to imprisonment of from 2 to 5 years.
3. If the actions specified in paragraph 1 result in:
a) serious harm to the victim's physical integrity, the perpetrator shall be liable to imprisonment of from 2 to 8 years;
b) death, the perpetrator shall be liable to imprisonment of from 3 to 10 years.
4. In the cases specified in the previous paragraphs, the perpetrator shall be liable to the accessory penalties of prohibition of carrying firearms for a period of 6 months to 5 years and the requirement to attend specific domestic violence prevention programmes.
5. The accessory penalty of an order prohibiting contact with the victim may include exclusion from the latter's place of residence or work, and enforcement of this measure may be supervised with the use of remote monitoring devices.
6. Anyone found guilty of an offence under this article may, having regard to the seriousness of the offence and its relationship to the role performed by the perpetrator, be prohibited from exercising parental, guardianship or other supervisory authority over the victim for a period of 1 to 10 years.”
2. Invites Portugal to submit all relevant information on the situation on the occasion of the submission of the next report concerning Article 17 of the Revised European Social Charter.
1 In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Contracting Parties to the European Social Charter or to the Revised Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.