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Aumônerie de prison

In the early years of the Portuguese second democracy, we find the first guarantee of religious assistance in prisons. In fact, the decree 26.643 of 1936, on the organization of prison services, assured moral and religious assistance to inmates in accordance with their own religion (article 285). The prison director could withdraw this right to assistance or to religious practice in case of misconduct by an inmate (article 287). Furthermore, the decree determined that all prisons should have specific facilities to perform acts of worship (article 288) and that every prison should have ministers of the religion followed by most inmates (article 289). These ministers would be appointed by the ministry of justice according to the will of the ecclesial authority. The Concordat of 1940, on article 17 would reinforce the guarantee of spiritual assistance of the Catholic Church in prisons.

With the Carnation revolution and with the advent of democracy (1974) the Portuguese government felt the need to restructure the services of prisons and of other public organisms responsible for other tutelary measures. Therefore, the state enacted the decree 265/79 (amended by the decree 49/80), granting, between articles 89 and 92, the following guarantees to inmates : freedom of religion and of worship, the right to take part in the religious manifestations of its denomination (or even of other denomination), the right to spiritual assistance from the minister of its religious community and the right to own worship objects (e.g., basic religious books or other objects related to his acts of worship). These objects could even be displayed in the inmate’s room. This right to spiritual assistance was even guaranteed to inmates in solitary confinement (article 211).

Two years later, the organic law of prison services (decree 268/81, abrogated by the decree 125/2007) created the Service of Religious Assistance (article 52) that was considered as a support service of prison’s central and special organisms. This Service had the duty to provide moral and spiritual assistance to inmates, to celebrate acts of worship and, eventually, to cooperate with the Education and Social Work services (article 60).

Despite this regulation, in 1983, the decree 79/83, on the regulation of religious assistance in prison facilities, is enacted. Its publication was due to the need to regulate in more detail the legal situation of the religious assistants of the Catholic Church who “have long provided this service” (preamble) and to define the rules of articulation with prison services. Catholic religious assistance would be provided in prisons by priests (“religious assistants”) of the Catholic Church (article 1) hierarchically dependent on the prison director (article 2).

More than two decades after the publication of the decree 79/83, and following the new legal provisions of the Concordat of 2004, in particular of its article 18, and of the Law 16/2001 on religious freedom, especially its article 13, there was a need to update the legal framework on religious assistance in prison facilities. Therefore, the Portuguese government by the decree 252/2009 enacted a new rule of spiritual and religious assistance in prison facilities.

Similar to the decree 253/2009 on spiritual and religious assistance in hospitals, the decree 252/2009 preserves the juridical status of religious assistants, guaranteed by the decree 79/83. In addition, it abrogates almost entirely the decree 79/83 but preserves the rights of religious assistants appointed under it. The decree 252/2009 establishes the current regulation on spiritual and religious assistance in prison facilities, intending to regulate the conditions for the provision of assistance to inmates. This service is universal. It guarantees the free exercise of spiritual and religious assistance to all churches and religious communities legally recognized in the country, whenever the inmate requests (article 3/1). The inmates have access to spiritual and religious assistance regardless of their denomination (article 3/2). Other legal provisions, such as the initiative of spiritual and religious assistance (article 4) or the administrative and logistical support (article 10) are ipsis verbis the same as those of decree 253/2009 on spiritual and religious assistance in hospitals. However, there is a relevant difference between the two legal documents, in particular in terms of contracts and remuneration of services. Contrary to decree on hospital assistance, the decree on prison assistance only provides for contracts for the provision of services with religious assistants, churches, and religious communities. Moreover, such contracts will only be signed by the accumulation of five conditions : i) when there is a significant number of inmates, ii) assigned to the same prison, iii) that profess the same religious belief, and iv) when the inmates frequently participate in their respective acts of worship, and v) when they request assistance (article 17).

For further information :
 CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In : SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata : Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa : Universidade Católica, 2006, pp. 151-173.
 LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In : SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal : Desde a vigência da Concordata de 1940, col Lusitania Canonica (8), Lisboa : Universidade Católica, 2002, pp. 235-244.
 SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In : SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata : Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa : Universidade Católica, 2006, pp. 137-149.

D 22 décembre 2017    AHelena Vilaça AJorge Botelho Moniz

CNRS Unistra Dres Gsrl

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