Lawfulness of corporal punishment

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Corporal punishment is lawful in the home.

Children have legal protection from violence in the home under the Child’s Rights Law N. 345-II (2002, amended 2004), the Marriage and Family Law N. 321-I (1998, amended 2004) and the Criminal Code (1997, amended 2004). Article 10(2) of the Child’s Rights Law states that the government must ensure the protection of a child from all forms of physical and mental violence, violent, rude or degrading treatment or any other actions that infringe human rights fixed by the Constitution. As at November 2006, a draft law on domestic violence was under discussion.

Article 20(2) of the Law on international treaties states that “in case of any collision of international treaties of the Republic of Kazakhstan with the laws of the Republic of Kazakhstan international treaties of Kazakhstan shall be subject to amendments, suspension or their termination”.

Schools

Corporal punishment is considered unlawful in schools under the Child’s Rights Law and the Education Law N. 389-I (1999, amended 2004). It is reportedly not used in military schools but there is no explicit prohibition.

Penal system

Corporal punishment is unlawful as a sentence for crime and as a disciplinary measure in penal institutions. According to the Code for the Execution of Criminal Penalties (1997) the application of penal legislation is based on respect for the guarantees of protection from torture, violence and other cruel or degrading treatment of convicted persons. Chapter 2 of the Criminal Code (1997) (“Special features of criminal responsibility and punishment of minors”) prohibits the imposition of measures which might harm the child’s health or the development of his/her personality. Adolescents may be subject to “coercive measures” but these do not include corporal punishment. Corporal punishment of young offenders in special educational or medical-educational institutions is prohibited under the Code for the Execution of Criminal Penalties. Cruel treatment of young offenders by teaching staff and guards is punishable under the Criminal Code. Other applicable law includes the Law on Prevention of Juvenile Delinquency, of Child Neglect and Homelessness.

Alternative care

Violence, including corporal punishment, is unlawful in other institutions and forms of childcare under Special Law No. 113-11 About children’s villages of family type and youth homes (2000, amended 2004), Decree N. 1613 Statute on the family in children’s villages (2001), the Order by the Head of the Health Agency N. 228 “On operational procedures in infant homes” (2000), Law No. 343-II On social, medical and pedagogical correctional support of children with special needs (2002, amended 2004), the Child’s Rights Law, Law N. 591-II On prevention of crimes among youth and prophylaxis of child abandonment and street children (2004), Law N. 430-II On the health system (2003, amended 2004), the Education Law, and Ministerial Order N. 08-1/31 Guidelines on registering children, citizens of Kazakhstan, adopted by foreigners (2003). There is no explicit prohibition of corporal punishment in foster care or kinship care.

Workplace

There is no explicit prohibition of corporal punishment of children in the workplace.

Prevalence research

A nationwide survey on violence against children was conducted in 2002 by the Association of Social Scientists and Politologists with the support of UNICEF, using anonymous questionnaires for parents and for children and in-depth interviews with education, health and childcare specialists. 1,100 children aged 7-18 years living with their parents, in institutions and on the street, 1,100 parents of children aged 5-18 years, and 220 specialists were included in the research. Specialists estimated that 60-80% of children are subject to violence by parents, adults and children, and the number is increasing. Health workers reported an increase in the number of children coming to their facilities as a result of beating and torture in families. Interviews showed that most often the victims were from “troublesome” families (49.5%) and families with a low level of education (28.7%), and children of all ages were susceptible. “Educational” measures reported by parents on their children included explanations (32%), reprimands (29.1%), moral punishment or bans (17.6%), scolding (16.4%) and physical punishment (2.3%). Scolding and physical punishment were most common for low-income families. One third (33%) of children reported encountering violence – on average 3.3% constantly suffer from brutal treatment, 16.3% frequently, 66.6% sometimes and 13.8% never. The perpetrators of the violence were reported as older children (44.5%), parents/relatives (23.9%), policemen (9.6%), teachers and educators (9.6%), youth groups (8.2%), and hooligans and bandits (4.2%). In all settings (at home, with relatives, boarding school, orphanage, remand centre, and special school), violence was most commonly carried out by older children followed by parents and relatives. (Association of Social Scientists and Politologists/UNICEF, 2002, Violence against Children in the Republic of Kazakhstan February – March 2002, Almaty: ASSAP/UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee appreciates that corporal punishment is unlawful in schools, the penal system and alternative care. However, the Committee regrets that there is no specific legal prohibition of corporal punishment in foster care, military schools, kinship care and the workplace and that despite legal prohibitions for some areas the de facto situation is that children are still victims of corporal punishment.

“The Committee urges the State party, while taking into account its General Comment No. 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/GC/2006/8), to:

1. explicitly prohibit in law corporal punishment of children in all settings;
2. undertake public and professional awareness raising;
3. promote non-violent, positive, participatory methods of childrearing and education and of knowledge among children of their right to protection from all forms of corporal punishment; and;
4. seek assistance from, among others, UNICEF and WHO.

“With reference to the UN Study on Violence against Children, the Committee recommends the State party:

1. take all necessary measures for the implementation of the overarching and setting-specific recommendations contained in the Report of the independent expert of the UN Study on Violence against children (A/61/299) while taking into account the outcome and recommendations of the Regional Consultations for Europe and Central Asia (held from 5-7 July 2005) hosted by Slovenia;
2. use these recommendations as a tool for action in partnership with civil society and in particular with the involvement of children to ensure that every child is protected from all forms of physical, sexual and mental violence and to gain momentum for concrete and, where appropriate, time-bound actions to prevent and respond to such violence and abuse; and
3. seek technical assistance from UNICEF, OHCHR and WHO for the above mentioned purposes.”

(8 June 2007, CRC/C/KAZ/CO/3 Unedited Version, Concluding observations on second/third report paras 36, 37 and 38)

“The Committee also notes that corporal punishment is forbidden in educational institutions but remains concerned that inappropriate methods of discipline, including corporal punishment, continue to be used in such institutions. The Committee is further concerned that appropriate measures have not been taken to effectively prevent and combat any form of ill-treatment and corporal punishment of children within the family.

“In light of article 37 of the Convention and the Code of Conduct for Law Enforcement Officials (General Assembly resolution 34/169), the State Party should take all necessary and effective steps to prevent incidents of ill-treatment of children. The Committee recommends that the State party provide training to law enforcement officials, in particular on how to deal with persons under 18 years; ensure that children are adequately informed of their rights when they are detained; ensure that complaint procedures are simplified so that responses are appropriate, timely, child friendly and sensitive to victims; and provide rehabilitative support to victims. The Committee further recommends that the State party implement the recommendations made by the Committee against Torture (A/56/44, paras. 121-129), in particular as they relate to persons under 18 years of age.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment, within the family, schools and other institutions. The Committee further recommends that the State party, through, for example, public awareness campaigns, promote positive non-violent forms of discipline as an alternative to corporal punishment, especially in families, the schools and other institutions.

“The Committee recommends that the State party reinforce its efforts to implement a comprehensive strategy to prevent and combat domestic violence, ill-treatment and abuse and to adopt adequate measures and policies to contribute to changing attitudes. The Committee further recommends that cases of domestic violence, ill-treatment and abuse of children be properly investigated within a child-sensitive judicial procedure and sanctions applied to perpetrators. Measures should also be taken to ensure the provision of support services to children in legal proceedings and the physical and psychological recovery and social reintegration of the victims in accordance with article 39 of the Convention.”
(10 July 2003, CRC/C/15/Add.213, Concluding observations on initial report, paras. 37, 38, 39 and 50)

Committee Against Torture

“The Committee expresses its concern about the human rights situation in general, in particular about the following:

(j) The absence of information in the report regarding torture and ill-treatment affecting women and girls, particularly in view of the rise in imprisonment rates of females and allegations of abusive treatment of women in police custody;

“Provide data in the next periodic report, disaggregated, inter alia, by age, gender, ethnicity and geography, on civil and military places of detention a well as on juvenile detention centres and other institutions where individuals may be vulnerable to torture or ill-treatment under the Convention; provide information in the next periodic report regarding the number, types and results of cases of punishment of police and other law enforcement personnel for torture and related offences, including those rejected by the court; provide full information on the results of criminal cases described in the State party’s initial report and on the compensation provided, if any.”
(17 May 2001, A/54/44, paras. 121-129, Concluding observations on initial report, paras. 128 (j) and 129 (m))