Portugal

Last Updated 28 October 2020

Portugal is a constitutional republic, with a president and prime minister in executive roles, and multi-party elections.

 
Systemic Discrimination
Mostly Satisfactory

Constitution and government

The Constitution1https://dre.pt/constitution-of-the-portuguese-republic and other laws and policies protect freedom of thought, conscience and religion (Article 41), as well as freedom of expression and freedom of assembly. These rights are generally respected in practice. The law prohibits employers from discriminating against individuals on the basis of religion or belief, and requires reasonable accommodation of employees’ religious practices.

The government maintains a separate agreement with the Roman Catholic Church under the terms of a 2004 concordat with the Holy See, which replaced the concordat of 1940. The concordat allows the Catholic Church to receive a percentage of the income tax voluntarily allocated by taxpayers to various institutions in their annual tax returns. A taxpayer may allocate a portion of his or her tax payment to any registered religious group. The Catholic Church and “rooted” religious communities are also exempt from VAT.2laicidade.org/wp-content/uploads/2007/06/concordata-2004-05-18.pdf

Under Article 51(1) of the Constitution, “[w]ithout prejudice to the philosophy or ideology that underlies their manifestoes, political parties may not employ names that contain expressions which are directly related to any religion or church, or emblems that can be confused with national or religious symbols.”

The 2001 Law on Religious Freedom3http://www.legislationline.org/documents/action/popup/id/20218 defines  freedom of conscience, religion and worship as the right to hold, not to hold and cease to hold a religion, to freely choose and change one’s beliefs, practice or not to practice the worship deeds in public or private, profess one’s beliefs, to seek new believers, to prosyletize, among other rights (Article 8). It also protects individuals from forced worship, being obliged to take a religious oath, or being questioned by state authorities regarding their convictions (Article 9).

The law also further stipulates that “Churches and other religious communities are separate from the State and are free in their manner of organization and in the practice of their activities and worship” (Article 3) and that “The State does not adopt any religion whatsoever, nor pronounce itself regarding religious issues” (Article 4). It stipulates the relations between the government and religious communities, but doesn’t mention any humanist, secular or other philosophical groups. The law allows each religious group to negotiate their own concordat-style agreements with the government.

Religious groups may register as religious corporations and receive tax-exempt status. Registered groups receive the right to minister in prisons, hospitals, and military facilities; provide religious teaching in public schools; participate in broadcasting time on public television and radio; and receive national recognition of religious holidays. A taxpayer may allocate 5 percent of his or her tax payment to any registered religious group. Unregistered religious groups are not subject to penalties and may practice their religion but do not receive the benefits associated with registration. The State pays for the salaries of chaplains in public hospitals, prisons, the armed forces and the police force. The law permits members of any registered religious group to serve as chaplains. However, in practice, most chaplains are members of the Catholic Church.4https://www.justice.gov/eoir/page/file/1287276/download

The Religious Freedom Commission has representatives from several small religious communities, but no representatives from humanist or secular organizations.5https://www.justice.gov/eoir/page/file/1287276/download The commission reviews
and takes a position on all matters relating to the application of the law on religious
freedom, including proposed amendments.

Religious symbols such as crucifixes are on display in many State primary schools and hospitals, and in some municipalities meeting rooms. Priests are invited to many public inaugurations by local authorities and by national authorities.

Education and children’s rights

Under Article 43 of the Constitution, “[p]ublic education shall not be linked to a religious belief” and the state “may not programme education and culture in accordance with any philosophical, aesthetic, political, ideological or religious directives.”6https://dre.pt/part-i

All schools, both public and private, are required to accommodate the religious practices of students, including rescheduling tests if necessary (whether this extends to secular holidays or any non-religious practices is unclear).

Public secondary schools offer an optional survey course on world religions taught by lay teachers. Religious groups may offer optional religion instruction through state-funded schools, provided the course is taught by lay teachers and ten or more students of the faith attend the class.7http://www.legislationline.org/documents/action/popup/id/20218 The Catholic Church, as well as Buddhist, Bahá’í and Christian evangelical communities have teaching courses approved by the State. Religious group representatives have the right to approve the course’s instructors as well as to dismiss them.8dge.mec.pt/educacao-moral-e-religiosa

Local sources report that in public schools, the school administration often pressures parents into enrolling their children in Catholic education courses.

Pastoral visits to public schools by local Catholic priests, including the suspension of classes to participate in mass, take place in some schools, mainly around Easter.

The State has been unwilling to force gypsy families to keep girls in school after puberty and before the end of the legal period of obligatory schooling.

Female genital mutilation

Since 2015 there has been a law penalizing female genital mutilation (FGM), however it is rarely enforced, despite cases being reported every year.9publico.pt/2018/09/09/sociedade/noticia/se-acontece-em-portugal-mas-nao-ha-condenacoes-nao-e-feito-muito-bem-o-trabalho-de-casa-das-entidades-1843493 In 2020, for the first time, a formal accusation was made in a case of FGM, A total of 63 cases of FGM were detected in Portugal as of May 2020, although, in the vast majority of those, the mutilation is reported to have taken place during short stays in West African countries. The Secretary for Citizenship and Equality stated in an interview that these numbers are expected to grow due to increasing awareness among health professionals.10https://www.publico.pt/2020/07/09/sociedade/noticia/mae-acusada-crime-mutilacao-genital-feminina-primeira-portugal-1923840; https://www.dn.pt/edicao-do-dia/10-jul-2020/numero-de-casos-de-mutilacao-genital-continuam-a-aumentar-63-ate-maio–12400015.html

Family, community, society, religious courts and tribunals

According to a census conducted in 2011, 81 percent of the Portuguese population is Catholic.11ine.pt/xportal/xmain?xpid=INE&xpgid=ine_publicacoes&PUBLICACOESpub_boui=73212469&PUBLICACOEStema=55466&PUBLICACOESmodo=2&xlang=en

There are no major restrictions on personal social freedoms. Portugal legalized same-sex marriage in 2010 and extended adoption rights to same-sex marriage in 2010. In 2007, Portugal held a referendum to remove what had been one of Europe’s most restrictive abortion laws. The majority of voters were in favor of the legalization of abortion during the first 10 weeks of pregnancy.12theguardian.com/world/2007/feb/12/gilestremlett.international

However, doctors are granted the right of conscientious objection and the percentage of doctors who refuse to perform adoptions based on religious beliefs remains high.13wbez.org/shows/worldview/in-portugal-abortion-legal-but-many-doctors-refuse-to-perform-them/5a63e08f-7ea0-4a9b-a9a5-4eac4ad570cf

Despite government efforts aimed at prevention, education and victim protection, domestic violence remains a significant issue in Portugal. In 2016, the country registered 22,773 cases of domestic violence. Furthermore, statistics show that between 2015 and 2016, more than 5,000 domestic violence aggressors who had already been proven guilty were exempted from serving a term of imprisonment.
<newsdeeply.com/womenandgirls/articles/2017/05/31/portugal-turns-to-prevention-to-take-on-its-domestic-violence-problem>

Freedom of expression, advocacy of humanist values

The Portuguese Constitution guarantees freedom of expression, freedom of information and freedom of the press.

Blasphemy law

A quasi-’blasphemy’ law criminalizes “offending a person in virtue of his religious belief”. Article 251 of the Criminal Code14https://dre.pt/web/guest/legislacao-consolidada/-/lc/107981223/201708230200/73474177/diploma/indice (in Portuguese); http://legaldb.freemedia.at/legal-database/portugal/ (in English) defines “Insult motivated by religious belief”:

“Whomever publicly offends another person or derides that person because of his or her beliefs, in such a way as to disturb public peace, will be punished with a prison sentence of up to one year or with a fine of up to 120 days”.

Article 252 further criminalizes “Hindrance, disturbance or insult to an act of worship”:

“Whomever publicly vilifies a religious act of worship or derides such act will be punished with a prison sentence of up to one year or a fine of up to 120 days”.

The articles do not appear to have been used in recent years.

The conflation of religious offence with the language of “public peace” and “vilification”, as well as a lack of prosecutions producing case law, makes it difficult to assess interpretation of this law. We consider it unlikely that sentencing could result in a prison term without some element of hate crime, however the wording on “public offence” and “derision” based on “beliefs” alone is vague enough that the threat of prosecution remains over acts that should constitute legitimate expression about religion and thus constitutes a quasi-blasphemy law.

Defamation

Although prosecutions are uncommon, Portugal remains one of the few countries in Europe where defamation is still a criminal offense.15http://legaldb.freemedia.at/legal-database/portugal/

Under Article 180 of the Criminal Code, defamation is punishable by a prison term of maximum six months or a fine of maximum 240 days. If the act is committed through the media, the penalty is increased to imprisonment for up to two years or a fine not less than 120 days (Article 183).

Between February 2005 and February 2015, the European Court of Human Rights (ECHR) condemned Portugal’s defamation laws 18 times, three times the average number of condemnations for an EU state.16humanrightseurope.org/2014/04/portugal-journalists-celebrate-free-expression-human-rights-victory/

The Portuguese journalist Josè Manuel Fernandes was found guilty of defamation by the Portuguese courts for an article written in 2006 and charged a €60,000 fine. The article centered on a critique of the appointment of Noronha do Nascimento to the Supreme Tribunal of Justice. The judge was defined as “the dark side of our justice system” and took out a prosecution for defamation.

Fernandes appealed to the European Court of Human Rights and in January 2017 he won a case for freedom of expression. The Court ruled in favor of the journalist as there was: “no reasonable relationship of proportionality between the restriction of freedom of expression of the complainant and the objective pursued of protecting the good name of Noronha do Nascimento”.17portugalresident.com/portuguese-journalist-wins-landmark-case-over-freedom-of-expression

As recently as 2019, four additional cases of decisions by Portuguese courts, in cases of defamation, that were eventually overturned by the European Court of Human Rights (ECHR) have been mentioned in the press. In two of those, the defendants were lawyers accused of either defamation against a judge (hinting at “intimacy” between her and the lawyer representing one of the parties in a trial) or sponsoring a legal action against a judge who had used derogatory words to refer to the gypsy community. The other cases involved a journalist who used the term “idiot” to refer to a former secretary of state, and a physician who used the expressions “lack of character and honesty” and “cowardice” addressed to a mayor who had excluded his clinic from the list of officially-recognized service providers.18https://www.publico.pt/2019/10/11/sociedade/opiniao/liberdade-expressao-4-portugal-0-1889550

References

1 https://dre.pt/constitution-of-the-portuguese-republic
2 laicidade.org/wp-content/uploads/2007/06/concordata-2004-05-18.pdf
3, 7 http://www.legislationline.org/documents/action/popup/id/20218
4, 5 https://www.justice.gov/eoir/page/file/1287276/download
6 https://dre.pt/part-i
8 dge.mec.pt/educacao-moral-e-religiosa
9 publico.pt/2018/09/09/sociedade/noticia/se-acontece-em-portugal-mas-nao-ha-condenacoes-nao-e-feito-muito-bem-o-trabalho-de-casa-das-entidades-1843493
10 https://www.publico.pt/2020/07/09/sociedade/noticia/mae-acusada-crime-mutilacao-genital-feminina-primeira-portugal-1923840; https://www.dn.pt/edicao-do-dia/10-jul-2020/numero-de-casos-de-mutilacao-genital-continuam-a-aumentar-63-ate-maio–12400015.html
11 ine.pt/xportal/xmain?xpid=INE&xpgid=ine_publicacoes&PUBLICACOESpub_boui=73212469&PUBLICACOEStema=55466&PUBLICACOESmodo=2&xlang=en
12 theguardian.com/world/2007/feb/12/gilestremlett.international
13 wbez.org/shows/worldview/in-portugal-abortion-legal-but-many-doctors-refuse-to-perform-them/5a63e08f-7ea0-4a9b-a9a5-4eac4ad570cf
14 https://dre.pt/web/guest/legislacao-consolidada/-/lc/107981223/201708230200/73474177/diploma/indice (in Portuguese); http://legaldb.freemedia.at/legal-database/portugal/ (in English)
15 http://legaldb.freemedia.at/legal-database/portugal/
16 humanrightseurope.org/2014/04/portugal-journalists-celebrate-free-expression-human-rights-victory/
17 portugalresident.com/portuguese-journalist-wins-landmark-case-over-freedom-of-expression
18 https://www.publico.pt/2019/10/11/sociedade/opiniao/liberdade-expressao-4-portugal-0-1889550

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