Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, penal institutions and alternative care settings.

There appears to be no defence in law for the use of corporal punishment by parents and other adults (information unconfirmed), but laws against violence and abuse are not interpreted as prohibiting all corporal punishment. The near universal acceptance of corporal punishment in childrearing necessitates a clear statement in law that all forms of corporal punishment and other cruel and degrading treatment are unacceptable, however light, whatever the relationship between the child and adult, and whatever the setting.

Explicit prohibition should be enacted of corporal punishment in all schools, public and private, all institutions accommodating children in conflict with the law and in all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 31(2) of the Family Act 1963 states that in caring for children, parents “may use adequate upbringing measures so that the child’s dignity is not violated and his or her health, emotional, intellectual and moral development are not endangered”, but neither this nor provisions against violence and abuse in the Act on Social and Legal Protection of Children (amended 2002), the Charter on Fundamental Rights and Freedoms 1992, the Act on Misdemeanours 1990, the Criminal Code 2009, the Constitution 1992 and the Domestic Violence Law 2006 are interpreted as prohibiting all corporal punishment in childrearing. A draft Bill on Social and Legal Protection of Children is under discussion (2013); to our knowledge it would not prohibit corporal punishment.

The Government confirmed its commitment to enacting prohibition in a letter from Prime Minister Mirek Topolánek to the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg, in September 2007. In 2008, the Minister for Human Rights and National Minorities signed the Council of Europe’s petition against all corporal punishment of children, and in the state party report to the Committee on the Rights of the Child the Government stated that it was considering enacting explicit prohibition (20 April 2010, CRC/C/CZE/3-4, para. 133). A new Civil Code is expected to come into force in January 2013 which would protect the dignity of the child but not explicitly prohibit corporal punishment. While acknowledging the lack of explicit prohibition of corporal punishment in national legislation, the Government confirmed that the Ministry of Justice, coordinator of the new Civil Code, “is not taking any new steps in the prohibition of corporal punishment” (10 May 2011, CRC/C/CZE/Q/3-4/Add.1, Written replies to the Committee on the Rights of the Child, Q7). The Government has also indicated that it considers existing legislation offers adequate protection from corporal punishment (9 March 2012, CAT/C/CZE/Q/4-5/Add.1, Written replies to the Committee Against Torture, para. 106). Again, under examination by the Committee Against Torture in May 2012, the Government stated that it had no plan to amend legislation to prohibit corporal punishment (30 May 2012, CAT/C/SR.1071, Summary record, para. 40).

A complaint has been brought against the Czech Republic by the Association for the Protection of All Children (APPROACH) Ltd, under the collective complaints procedure of the European Committee of Social Rights (Collective complaint No. 96/2013, Association for the Protection of All Children (APPROACH) Ltd v Czech Repuvlic). The complaint alleges that there is no explicit prohibition of corporal punishment in the family, in all forms of alternative care and in schools and that the Czech Republic has not acted with due diligence to eliminate such violent punishment of children in practice. The complaint was registered by the Committee in February 2013.

The Government rejected recommendations to explicitly prohibit all corporal punishment in all settings, including the home, made during the Universal Periodic Review of the Czech Republic in 2012, stating that the law protects children from “inappropriate corporal punishment” in the family (26 December 2012, A/HRC/22/3, Report of the working group, paras. 94(88), 94(89) and 94(90); 1 March 2013, A/HRC/22/3/Add.1, Report of the working group: Addendum, para. 4).

Schools

Corporal punishment in schools is unlawful under article 31 of the Education Act, which states that “specially rude verbal or intentional physical assault of a pupil or student” is “a serious wilful violation of duties”. The Education Act and the Act on execution of institutional upbringing or protective upbringing at school facilities and on preventive upbringing care at school facilities, do not include corporal punishment among permitted disciplinary measures.

Penal system

Corporal punishment was abolished as a sentence for crime by 1867. It is not a permitted sanction under the Criminal Code and the Juvenile Justice Act No. 218/2003.

Corporal punishment is considered unlawful as a disciplinary measure in penal institutions but there is no explicit prohibition. There is no provision for corporal punishment in the Imprisonment Act 1999.

Alternative care

Corporal punishment is unlawful in institutions under the the Act on Institutional Care No.102 2002 (as amended 2005), which specifies the permitted means of correction and does not include corporal punishment, though does not explicitly prohibit it. It is lawful in non-institutional forms of care. The lack of explicit prohibition of corporal punishment in all alternative care settings is the subject of a complaint under the collective complaints procedure of the European Committee of Social Rights (see under “Home”).

Prevalence research

As part of a Government-sponsored campaign on violence against children in 2009, research was undertaken into public tolerance of corporal punishment of children. Almost half (49.9%) of those surveyed felt that corporal punishment may be necessary in some situations; a quarter (24.8%) were in favour of smacking or slapping children as part of their upbringing and did not view this as corporal punishment; 11% expressed a strong belief in the use of corporal punishment in childrearing. Only 8.3% were not in favour of corporal punishment and said they would never use it. (Reported in Government’s written replies to the List of Issues of the Committee on the Rights of the Child, 10 May 2011, CRC/C/CZE/Q/3-4/Add.1)

A poll in April 2007 conducted by the Median agency for the daily Lidove noviny found that three fifths were against a law banning corporal punishment of children. Nearly three out of four (71.5%) reported having been beaten in childhood, and 25% of parents admitted to using it on their children occasionally or regularly; only 31% said they had never beaten their children. (Reported in Ceske Noviny, 8 April 2008)

A 2006 public opinion poll by Median agency for the daily Mladá fronta Dnes found that 25% of the 636 respondents supported the use of corporal punishment in schools, more commonly among respondents aged 45-50 years than among those with school aged children. (Reported in The Prague Post, 20 June 2007)

Studies carried out in 1994 and 2004 showed a high prevalence of corporal punishment by parents. One thousand 10-year-olds were questioned in each study. In 1994, 90% had experienced some kind of corporal punishment at home; in 2004, 86% had. In 1994, a third of the children had been hit with an object, hit on a sensitive part of their body, or hit in a way that left visible marks. In 2004, a quarter of children had experienced this. (Reported by Child Abuse and Neglect in Eastern Europe, 24 May 2007, www.canee.net)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting that the corporal punishment of children is prohibited in public care, the Committee notes with concern there that is still no legislation which explicitly prohibits corporal punishment of children in all settings, including in the family. The Committee is also concerned at the fact that according to surveys undertaken by the State party, the vast majority of Czech citizens expressed acceptance of corporal punishment in a child’s upbringing.

“The Committee urges the State party to address the widespread tolerance of corporal punishment by, inter alia, conducting awareness-raising and public education programmes with a view to encouraging the use of alternative disciplinary measures in accordance with the inherent dignity of the child, and in doing so, ensure that corporal punishment is prohibited in all settings including the family.

“The Committee welcomes the State party’s participation in the initiatives of the Council of Europe and the United Nations to prevent and ban the corporal punishment of children and the drawing up of a National Strategy of Preventing Violence against Children (2008-2018) as well as its accompanying National Action Plan (2009-2010).
(4 August 2011, CRC/C/CZE/CO/3-4, Concluding observations on third/fourth report, paras. 39, 40 and 41)

“The Committee is concerned that there is no legislation explicitly prohibiting corporal punishment, and that it is practised in the family, in schools and in other public institutions, including alternative care contexts.

“The Committee recommends that the State party take action to address ill-treatment and abuse committed against children in the family, in schools, in the streets, in institutions and in places of detention through, inter alia:

f) Taking all necessary steps to enact legislation prohibiting the use of corporal punishment in schools, institutions, in the family and in any other context;

g) Making use of legislative and administrative measures, as well as public education initiatives to end the use of corporal punishment and ensuring this is adhered to….

i) Taking into account the Committee’s recommendations adopted at its day of general discussion on ‘Violence against children within the family and in schools’ (CRC/C/111).”
(18 March 2003, CRC/C/15/Add.201, Concluding observations on second report, paras. 40 and 41)

“The Committee is concerned that corporal punishment is still used by parents and that internal school regulations do not contain provisions explicitly prohibiting corporal punishment, in conformity with articles 3, 19 and 28 of the Convention....

“The Committee recommends that further measures to protect children from abuse and maltreatment be undertaken, in particular through the development of a widespread public information campaign for the prevention of corporal punishment at home, at school, and in other institutions.”
(27 October 1997, CRC/C/15/Add.81, Concluding observations on initial report, paras. 18 and 35)

Committee Against Torture

“The Committee is concerned about the widespread tolerance of corporal punishment in the State party and the absence of legislation explicitly prohibiting it.  It is also concerned about the provision in Act No. 94/1963 Coll. Family Act which states that parents have the right to use ‘adequate educational measures’ and that the issue will be addressed in a similar manner in the new Civil Code (arts. 2 and 16).

The Committee recommends that the State party amend its legislation, including the Family Act and the new Civil Code, with a view to introducing an explicit prohibition against corporal punishment in all settings. The State party should carry out awareness-raising campaigns among the general public regarding the unacceptability of and the harm done by corporal punishment.”
(13 July 2012, CAT/C/CZE/CO/4-5, Concluding observations on fourth/fifth report, para. 22)

European Committee of Social Rights

“In its previous conclusion the Committee held that the situation was not in conformity with the Charter as there was no explicit prohibition in legislation of corporal punishment in the home and in institutions.

“The Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) 24 § 200) that Amendment to Act (No. 109/2002) on Institutional Care signed by the President on 2 September 2005 states exactly the extent of correctional means, which can be used and corporal punishment is not among them and therefore it cannot be used in these institutions. The Committee further notes from the report that the Czech law does not provide for a general prohibition of corporal punishment, but nevertheless parents are only allowed to exercise their parental authority in a way that does not affect the child's dignity and in no way jeopardises the health of the child and his/her physical, emotional, intellectual and moral development. Parents cannot resort to inappropriate means of education and this prohibition applies to the use of excessive corporal punishment. Such acts are punishable under Section 59 Paragraph 1.h of the Act on Socio-Legal Protection of Children.

“The Committee notes from another source that there that is still no legislation which explicitly prohibits corporal punishment of children in all settings, including in the family. The UN CRC urges the Czech Republic to address the widespread tolerance of corporal punishment by, inter alia, conducting awareness-raising and public education programmes with a view to encouraging the use of alternative disciplinary measures in accordance with the inherent dignity of the child, and in doing so, to ensure that corporal punishment is prohibited in all settings including the family.

“The Committee notes from another source that corporal punishment is lawful in the home. Section 31(2) of the Family Act (1963) states that in caring for children, parents ‘may use adequate upbringing measures so that the child’s dignity is not violated and his or her health, emotional, intellectual and moral development are not endangered’, but neither this nor provisions against violence and abuse in the Act on Social and Legal Protection of Children (amended 2002), the Charter on Fundamental Rights and Freedoms (1992), the Act on Misdemeanours (1990), the Criminal Code (2009), the Constitution (1992) and the Domestic Violence Law (2006) are interpreted as prohibiting all corporal punishment in childrearing. Corporal punishment is lawful in alternative care settings. There is no provision for it in the Act on execution of institutional upbringing or protective upbringing at school facilities and on preventive upbringing care at school facilities, but it is not explicitly prohibited.

“The Committee holds that the situation which it has previously found not to be in conformity with the Charter has not changed. Therefore, it reiterates its previous finding of non-conformity on this ground.…

“The Committee concludes that the situation is not in conformity with Article 17 of the Charter of 1961 as corporal punishment of children is not explicitly prohibited in the home and in institutions.”
(January 2012, Conclusions 2011)

“The Committee recalls that Article 17 of the Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition in legislation must be combined with adequate sanctions in penal or civil law.

“The report states that under the amended Families Act (1998), parents have the right to use reasonable correctional means that do not affect the child’s dignity nor endanger the child’s health, or his physical, emotional, intellectual, and moral development. The Committee notes that this provision does not explicitly prohibit the corporal punishment of children within the family. It notes from another source that there is no legislation explicitly prohibiting corporal punishment, and that it is practised in the family, in schools and in other public institutions, including alternative care contexts. The Committee therefore considers that since there is no explicit prohibition in legislation of corporal punishment in the home, in schools and in other institutions, the situation cannot be considered to be in conformity with Article 17 of the Charter on this point.

“The Committee furthermore notes from the report that the Notification of the Ministry of Education, Youth and Sport No. 291/1991 Coll., on elementary school, regulates the correctional and educational measures which the school may use, i.e. praise and other rewards and measures to improve discipline (warnings and reprimands). It asks what other legislative and administrative measures, as well as public education initiatives are used to end the use of corporal punishment.

…

“The Committee concludes that the situation in the Czech Republic is not in conformity with Article 17 of the Charter on the ground that there is no explicit prohibition in legislation of corporal punishment in the home, in schools and in other institutions.”
(July 2005, Conclusions XVII-2)

“As regards the corporal punishment of children the Committee wishes to know whether legislation prohibits the corporal punishment of children in schools, in institutions, in the home, or elsewhere….

“Pending receipt of the information requested the Committee defers its conclusion.”
(2003, Conclusions XVI-2, page 173)

Universal Periodic Review

The Czech Republic was examined in the first cycle of the Universal Periodic Review in 2008 (session 1). No recommendations were made concerning corporal punishment of children.

Examination in the second cycle took place in 2012 (session 14). The following recommendations were made (26 December 2012, A/HRC/22/3, Report of the working group, paras. 94(88), 94(89) and 94(90)):

“Take measures to combat domestic violence, in particular against children, including the usage of corporal punishment (Russian Federation);

“Explicitly prohibit all corporal punishment of children in all settings, including in the home (Liechtenstein)

“Explicitly prohibit corporal punishment of children in all settings (Hungary)”

The Government accepted the first of these recommendations but rejected the recommendations to explicitly prohibit corporal punishment in all settings, stating that the law already protects children from “inappropriate corporal punishment” in the home (1 March 2013, A/HRC/22/3/Add.1, Report of the working group: Addendum, para. 4): “The Recommendations No. 89 and 90 regarding the prohibition of corporal punishment of children in all settings do not enjoy the support of the Czech Republic. As regards this issue, the Czech Republic considers violence against children entirely unacceptable and is committed to combating this phenomenon in all settings using all means and methods. At present, corporal punishment of children is prohibited in all public institutions, such as schools and child-care facilities. In all these settings, children have the right to be treated in a manner that respects their rights and human dignity. In the family, parents are only allowed to use upbringing methods that do not endanger children's dignity or their physical, mental, or emotional development and are appropriate for the situation. Inappropriate corporal punishment and other forms of punishment in the family are therefore prohibited, and parents who administer such punishment may be penalised and, in severe cases, face criminal prosecution. In such a case, a child may be placed in institutional care. The same applies to foster family care. Moreover, the Czech government takes action to educate the population regarding violence against children by organising campaigns aimed at improving the protection of children from violence and at increasing public sensitivity to this issue, including alternate methods of positive parenting and violence-free upbringing.”