LISBON, Apr 12 – In a verdict that shocked human rights and child advocacy organisations, the bar association and the country’s leading analysts, Portugal’s Supreme Court ruled that corporal punishment of children with mental disabilities in a children’s institution is not illegal.

The first to raise his voice was Humberto Santos, the president of the Portuguese Association of Disabled Persons (APD), who told the press Wednesday that he found the Supreme Court’s defence of physical punishment “disturbing and outrageous.”

Physical punishment is unacceptable in and of itself, “but is much more alarming and deeply repugnant when it is defended by a court of law,” said Santos.

Late last year, a juvenile court in Setúbal, 40 km south of Lisbon, convicted a caregiver in a children’s home for mistreating children in her care between 1990 and 2000, and sentenced her to 18 months in prison. The case, which revealed that she regularly slapped mentally disabled children and locked them into a dark pantry, caused a public commotion.

But in the decision it handed down on Tuesday, in response to an appeal filed by the caregiver, the Supreme Court considered slaps and spankings not only “legal” and “acceptable,” but stated that failure to use these methods of punishment could even amount to “educational neglect.”

In addition, the Court said that locking children into dark rooms is a normal form of punishment “by any good parent.”

One of the children frequently locked in the pantry was a seven-year-old boy suffering from a severe case of child psychosis. The caregiver also habitually tied another little boy to his bed, so that he would not cause disturbances.

The head of the APD said the Supreme Court decision was reminiscent of “the Middle Ages,” and that the Portuguese justice system had committed “a grotesque violation of human rights” by setting a precedent so that “others who act in a similar fashion can continue their mistreatment.”

Santos added that because of the gravity of the case, it should be considered by the European Court of Human Rights.

Ana Filgueiras, head of the “Cidadãos do Mundo” Association, which works on behalf of vulnerable children, told IPS that “the effect of this outrageous ruling is that citizens will simply be unable to believe in a legal system that does not recognise a child’s right not to be hit, even in a case in which there is an aggravating factor – that the child is disabled.”

When she lived in Brazil, from 1975 to 1990, Filgueiras was a well-known activist with the Centre for the Defence of the Rights of Children and Adolescents, and won several battles against civilian, judicial and military authorities who were determined to “clean up” Rio de Janeiro of street children.

“That (victory) would be very difficult to repeat in Portugal, where civil society has been heavily influenced by the state,” said the activist.

“In any civilised country, a disgraceful ruling like this one would trigger such a wave of indignation that the Supreme Court would find it very difficult to justify what is unjustifiable.”

Similar views were expressed by the bar association, which described the verdict as “dangerous.”

Carlos Antunes, a member of the bar association’s human rights commission, said the legal decision is unacceptable and “extremely serious, because it sets an appalling precedent and transmits a very dangerous message, which did not come from just any court, but from the high court itself.”

Antunes said the commission was awaiting the complete verdict in order to take a formal stance on the “very disturbing” decision that gives people a green light to engage in “criminal mistreatment.”

When asked whether the ruling set a legal precedent, the expert said he had “no doubt that in the future, this decision could be invoked in other cases, to play down the guilt of those who have mistreated children.”

The legal decision “is almost incomprehensible, and completely absurd,” Antunes added.

Lawyer Pedro Biscaia, a member of the same commission, said “this opens a door to impunity for a series of behaviors that are absolutely avoidable in our society, where these days we have problems with aggression against and abuse of minors in institutions and youngsters from low-income areas.”

For his part, Frederico Marques, with the Portuguese Association of Support for Victims (APAV), said the Supreme Court decision that corporal punishment of children with disabilities is legal and acceptable is “foolish.”

Marques declined to comment on the ruling in concrete terms, since he was not entirely familiar with the case. But referring to the treatment received by the children at the hands of the caregiver, he said that APAV “repudiates this kind of behavior.”

He also said “the verdict would seem quite senseless, in view of the climate of concern surrounding the question of the rights of children.”

Government officials have not yet pronounced themselves on the verdict. Cornered by journalists, Minister of Social Welfare José Vieira da Silva merely stated that in the children’s institutions that answer to his ministry, “physical punishment is strictly prohibited, with no exceptions.”

Manuel Coutinho, of the governmental Children’s Support Institute, declined to comment, explaining that he had not yet had access to the documents. He simply pointed out that “any adult who mistreats a child faces a possible prison sentence of one to five years.”

The Supreme Court ruling also runs counter to the international legal obligations of Portugal, which ratified the Convention on the Rights of the Child – legally binding on signatory countries – in September 1990. (FIN/2006)

source: Inter Press Service News Agency
April 12, 2006