General legal framework

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 16-18

16

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of Portugal includes the following general provisions dealing with non-

discrimination:

- Article 13 is a general clause on the principle of equality. Paragraph 1 en shrines the

principle of equal treatment before the law and paragraph 2 prohibits discrimination

founded on a large and non-exhaustive list of protected grounds (‘ancestry, gender,

race, language, territory of origin, religion, political or ideological beliefs, education,

economic situation, social circumstances or sexual orientation’).

- Article 15 of the Constitution establishes a principle of equivalence of rights and

duties between foreigners and stateless persons and Portuguese citizens. According

to this provision, foreigners and stateless persons who are temporarily or habitually

resident in Portugal enjoy the same rights and are subject to the same duties as

Portuguese citizens. Exceptions to this general rule are political rights, the exercise

of public functions that are not predominantly technical and the rights and duties

which, according to the Constitution or the law, are restricted to Portuguese citizens.

- Article 26(1) enshrines the right to legal protection against any form of

discrimination. The Constitution thereby guarantees legal remedies for violations of

the anti-discrimination provisions.

In addition to these general principles and provisions, the Constitution includes, in the

chapter on workers’ rights, freedoms and guarantees, a prohibition on dismissal without

fair cause or for political or ideological reasons (see Article 53 on job security). In Title III

on economic, social and cultural rights and duties, Article 59(1) of the Constitution forbids

discrimination at work against any worker on grounds such as age, gender, race,

citizenship, place of origin, religion, or political or ideological convictions. Paragraph (2)(a)

of the same Article refers to the principle of equal pay for equal work. Article 59(2)(c) of

the Constitution refers to special protection of the work done by minors, the disabled a nd

those whose occupations are particularly strenuous or are undertaken in unhealthy, toxic

or dangerous conditions. Although Article 59(1) of the Constitution does not expressly refer

to sexual orientation or to disability, it must be interpreted in connection with Article 13,

which forbids discrimination on a non-exhaustive list of grounds.32 This list can include the

protection of other grounds, such as age.

In Title III, which concerns economic, social and cultural rights and duties, the Constitution

includes the right to the protection of health (Article 64(2)(a) and (b)). This right is

universal. It is fulfilled by means of a universal and general national health service which,

with particular regard to the economic and social conditions of the citizens who use it,

tends to be free of charge, and by the crea tion of economic, social, cultural and

environmental conditions that specifically guarantee the protection of childhood, youth and

old age. The Constitution charges the state, as a priority, with the responsibility of

guaranteeing every citizen, regardless of their economic situation, access to preventive,

curative and rehabilitative medical care (Article 63(3)(a)).

Furthermore, Article 69(1), on childhood, provides that, with a view to their integral

development, children have the right to protection by society and the state, especially from

all forms of abandonment, discrimination and oppression. Article 70 on youth establishes

that ‘in order to ensure the effective fulfilment of their economic, social and cultural rights,

young people shall enjoy special protection’.

32 Supreme Court of Justice, judgment of 11 October 2011, No. 343/04.4TTBCL.P1.S1, available at:

http://www.dgsi.pt/JSTJ.NSF/954f0ce6ad9dd8b980256b5f003fa814/11aa12ab2447e05d80257935002d7e36

?OpenDocument.