Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home under federal legislation. The Civil Code (1998) states that children are under the authority of their parents (article 265) and that children owe respect and obedience to their parents (article 266). Article 278 states: “Parents have the power to correct the behaviour of their minor children or have it corrected. This power must be exercised in moderation, without abuse, punishment or acts that injure or harm the child physically or psychologically. Judges must safeguard minors against excessive correction by their parents, ordering the cessation of such acts and relevant sanctions if appropriate.”

Children have some protection from violence and abuse at the federal level under other provisions in the Civil Code (articles 268 and 307), the Criminal Code and the Law on Protection Against Violence in the Family (1994).

At the provincial level, the Constitution of the Province of Tierra del Fuego, the Antarctic and the South Atlantic Islands gives protection from abusive exercise of family authority (article 18), and in the Province de Mendoza Law 6354 (1995) protects the psychological and physical integrity of children and adolescents (articles 6 and 14).

Under article 5 of the Law for the Integral Protection of Children and Adolescents (2005), the government is responsible for the protection and aid of children in any circumstances. Article 9 recognises the right of the child and adolescent to dignity and personal, physical and moral integrity, and to protection from torture, abuse, humiliating and intimidating treatment, and cruel or degrading treatment, but there is no prohibition of corporal punishment.

As at February 2007, a network of NGOs planned a situation analysis with a view to introducing debate on the legal status of corporal punishment in 2007/2008.

Schools

There is no explicit prohibition of corporal punishment in schools. Article 5 of the Federal Education Law (2000) recognises the child’s right to dignity and well-being and states that this must be respected in setting guidelines for educational policy. The Law on the School Coexistence System (1999) protects the child’s right to physical integrity (article 6) and does not list corporal punishment among permitted sanctions in schools, but according to legal opinion this does not amount to a prohibition of corporal punishment. The Law for the Integral Protection of Children and Adolescents (see above) also applies.

Penal system

Corporal punishment is unlawful as a sentence for crime. Article 18 of the Constitution (1994) abolishes whipping and any kind of torture and forever. There is no provision for corporal punishment as a sentence for crime under Act 22,803 on young offenders or in the Code of Criminal Procedure.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Under article 18 of the Constitution, prisons should be “for the security and not for the punishment of the prisoners confined therein”. The Code of Criminal Procedure and the Criminal Code provide for the establishment of specific facilities for children in pre-trial detention or sentenced to imprisonment, but in practice conditions in child detention centres do not match the legal standards and many children are detained in local police stations where they are subject to corporal punishment and other ill-treatment (World Organisation Against Torture, 2002, Rights of the Child in Argentina, OMCT). The Law for the Integral Protection of Children and Adolescents (see above) also applies.

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare. The general protections against violence and abuse in the Civil Code, the Criminal Code and the Law for the Integral Protection of Children and Adolescents (see above) apply.

 Workplace

No information.

Prevalence research

Research by Serpaj-Argentina and Don Bosco Hogares in 1998 into the conditions of detention in child institutions found that incarcerated children are regularly subject to disciplinary sanctions such as confinement in “chastisement cells” and corporal punishment.
(SERPAJ/Argentina, Hogares Don Bosco, 1998, Informe carcel y ninos, cited in World Organisation Against Torture, 2002, Rights of the Child in Argentina, OMCT)

An analysis of treatment of children in police stations and institutions run by the Province Council of the Minor between July 1998 and July 2001 found that torture and ill-treatment was systematically perpetrated against children, with 576 cases of such treatment being recorded during the period.
(SERPAJ-Argentina, Recopilacion de denuncias efectuadas por el Defensor del Departamento Judicial de San Isidro, Provincia de Buenos Aires, Novembre 2001, cited in World Organisation Against Torture, Rights of the Child in Argentina, OMCT)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with concern that there is no explicit prohibition of corporal punishment under law and that it is still widely practised in the home and in some institutions.

“The Committee recommends that the State party expressly prohibit corporal punishment in the home and all institutions and carry out public education campaigns to promote positive, non-violent forms of discipline as an alternative to corporal punishment.

“The Committee … notes with concern the poor conditions of children in detention, including the lack of adequate basic services such as education and health, the absence of adequately trained staff, and the use of corporal punishment and isolation.

“The Committee recommends that the State party:
g) take the necessary measures to improve detention conditions….”

(9 October 2002, CRC/C/15/Add.187, Concluding observations on second report, paras. 38, 39, 62 and 63 (g))

“The Committee is also worried about the high number of single mothers in Argentina between the ages of 12 and 18 and about reports on the occurrence of domestic violence and sexual abuse.

“The Committee suggests that the State party considers the possibility of introducing more effective legislation and follow-up mechanisms to prevent violence within the family in the spirit of article 19.”
(15 February 1995, CRC/C/15/Add.35, Concluding observations on initial report, paras. 12 and 20)