Summary of law reform necessary to achieve full prohibition

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

We have been unable to confirm whether or not legislation explicitly recognise a right of parents and other to impose corporal punishment on children, such as a right to inflict “reasonable chastisement” or a “power to correct”, but there is no explicit prohibition of all corporal punishment in childrearing. The near universal acceptance of a certain degree of violence in the name of discipline necessitate clarify in law that all forms of corporal punishment are prohibited, without exception.

Explicit prohibition should be enacted in legislation applicable to all alternative care settings, including public and private day care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Children have limited protection from abuse under Law No. 62 “On the social and legal protection from family violence” (2003) and the Criminal Code (1997), articles 110 and 111 of which prohibit severe abuse, including beatings and brutal or systematic violence, and which punishes “abuse of the position of guardian”. A Children’s Code was adopted in June 2006: we have been unable to examine the full text but in its draft form it did not prohibit all corporal punishment in childrearing. During the Universal Periodic Review of Kyrgyzstan in 2010, the Government stated that corporal punishment of children is not permitted in Kyrgyzstan and that it is prohibited by law (A/HRC/15/2, Report of the Working Group, para. 53), but efforts to verify this claim have confirmed only that the Children’s Code explicitly prohibits corporal punishment in education settings.

Schools

Corporal punishment is prohibited in schools in article 35(4) of the Children’s Code. Other relevant legal provisions are article 14 of the Law on teachers’ status (2001), which prohibits the use of violence and states that the teacher should use only non-violent methods, and article 17 of the Law on Protections and Advocacy of the Rights of Minors (1999), which states that “each minor has the right to protection of his or her dignity and honour. In pre-school, primary, and secondary education institutions and in out-of-school (extracurricular) institutions the discipline and order must be kept by measures of educational character, based on mutual respect and justice that exclude humiliation and insult”.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not among permitted sentences for offenders below the age of 18 years in article 78 of the Criminal Code. The cases of crimes committed by children are often heard in aksakal (traditional village) courts. Corporal punishment is not included in the measures available to these courts under article 28 of Law No. 113 on “The Aksakals courts” (2002), and the courts are not entitled to impose a penalty that “humiliates human dignity”. The Law states that it is unlawful to take measures not stipulated by law.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. It is not a permitted form of discipline under articles 87 and 107 of the Criminal Executive Code (1999). Article 28 of Law No. 197 “On bodies and institutions of criminal-executive (penitentiary) system” (2003), staff may use physical force to stop accused persons and prevent crime and administrative offences, if this is possible by non-violent methods.

Alternative care

Corporal punishment is unlawful in residential institutions. In clause 31 of Regulation No. 489 “On the state children’s home (residential institutions) of the system of the Ministry of Education, Science and Culture of the Kyrgyz Republic” (1998), corporal punishment is not included as a permitted measure of discipline. There is no explicit prohibition of corporal punishment in foster care and other alternative care settings.

Prevalence research

A UNICEF report published in 2010 states that 54% of children aged 2-14 experienced violent discipline (physical punishment and/or psychological aggression) in 2005-2006. More than a third experienced physical punishment, while a smaller percentage (7%) of mothers and caregivers thought that physical punishment was necessary in childrearing, and non-violent discipline was also widely used: experienced by 89% of children. Three per cent of children experienced severe physical punishment (being hit or slapped on the face, head or ears or being hit over and over with an implement) and 43% experienced psychological aggression (being shouted at, yelled at, screamed at or insulted). Boys were more likely than girls to experience violent discipline: 59% compared to 49%. No significant differences in children’s experience of violent discipline were found according to age, household size, level of education of adults in the household or engagement in child labour. (UNICEF (2010), Child Disciplinary Practices at Home: Evidence from a Range of Low- and Middle-Income Countries, NY: UNICEF)

According to statistics from UNICEF on violence in the family, in 2005-2006 thirty-eight per cent of girls and women aged 15-49 thought that a husband is justified in hitting or beating his wife under certain circumstances. (UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF)

A large-scale national study which involved over 2,000 children found that nearly one quarter (24%) of children said they had been hit, kicked, beaten or physically hurt in another way by an adult in their family. Sixteen per cent had experienced this in the past month. Eleven per cent had been hit or attacked with a weapon or other object by a family member. Of the quarter of children who had been physically hurt by an adult in their family, 31% could still feel the pain next day or had a bruise, cut that bled or other injury such as a broken bone. Twelve per cent of these children had required medical attention. Forty-four per cent of children said that adults in their family had called them names or said things that hurt their feelings; 33% had experienced this in the past month. Fifteen per cent of children had been threatened with violence with a weapon; 10% in the past month. Surveys with 155 parents also revealed very high rates of use of physical and verbal punishment. While positive discipline was widely used (93% of parents had used positive discipline methods such as explaining why a behaviour was wrong or taking away a child’s privileges; 87% in the past month), the majority of parents who used positive discipline also used physical, verbal and psychological violence as a punishment. Sixty-eight per cent of parents had used some kind of corporal punishment; 57% in the past month. Fifty-eight per cent had slapped their child on the back, buttocks, leg or arm; 41% had shaken their child; 32% had hit their child with a hard object (including belts, hairbrushes and sticks); 25% had slapped their child on the face or head. Eleven per cent had hit their child over and over as hard as they could; 4.5% had thrown their child or knocked them down. Forty-seven per cent of parents had sworn at or cursed their child or called them names; 41% in the past month. Thirty-four per cent had threatened to hit, beat or kick their child; 27% in the past month. The study recommends prohibition of corporal punishment in all settings, including the home. (Haarr, R. et al (2009), Child Abuse and Neglect in Families in the Kyrgyz Republic: a National Population-Based Study, UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is concerned that persons below 18 allegedly continue to be subjected to torture and cruel treatment, in many cases when in police custody or awaiting trial….

“The Committee recommends that the State party:

1. undertake all necessary measures to prevent acts of torture and inhuman or degrading treatment or punishment, in particular through training of the police forces;
2. take measures to investigate, prosecute and sanction those involved in committing acts of torture and inhuman or degrading treatment or punishment against children and young persons….

“While commending the State party for the adoption of the Law on Protection from Violence (2003), the Committee expresses its concern about the abuse and neglect that take place in families, in particular with regard to children and against adolescent girls….

“The Committee recommends that the State party:

1. enforce and closely monitor the Law on Protection from Violence;
2. carry out effective public-awareness campaigns and adopt measures to provide information, parental guidance and counselling with a view, inter alia, to preventing violence against children, including the use of corporal punishment….

“The Committee welcomes the fact that the State party considers corporal punishment unacceptable and inadmissible; however, it remains concerned that corporal punishment is not explicitly prohibited in the family, in schools, in other institutions and in childcare settings.

“The Committee urges the State party to expressly prohibit corporal punishment by law in the family, in schools, in institutions and in other childcare settings. It further recommends awareness-raising and promotion of positive, non-violent forms of discipline, especially in families, schools and care institutions.”
(3 November 2004, CRC/C/15/Add.244, Concluding observations on second report, paras. 37, 38, 43, 44, 45 and 46)

“The committee is concerned at numerous and continuing reports of ill-treatment of persons under 18 by the militia, including psychological intimidation, corporal punishment, torture and abduction. The Committee is concerned that victims of such treatment are largely from vulnerable groups, such as refugees; that children are often detained for payment from their families; and that fear of reprisals and inadequate complaints procedures discourage children and their parents from filing complaints. Like the Committee Against Torture (CAT/C/23/6), the Committee expresses concern at the absence of a definition of torture in the 1998 Criminal Code and appropriate penalties, and the apparent failure to provide prompt, impartial and full investigation into allegations of torture, as well as the failure to prosecute alleged perpetrators.

“In light of article 37 of the Convention, and recalling 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 from occurring. The Committee recommends that the State party implement the recommendations made by the Committee against Torture (CAT/C/23/6); provide the militia with training on how to deal with persons under 18; ensure that persons are adequately informed of their rights when they are detained; ensure that complaints procedures are simplified so that responses are appropriate, timely, child-friendly and sensitive to victims; and provide rehabilitative support to victims.

“The Committee is concerned, as the report acknowledges, that ill-treatment of children takes place in the family, institutions, and schools. The Committee is concerned that violence against women is on the rise and is a problem in Kyrgyzstan, and that this has harmful consequences on children.

“In light of articles 19 and 39 of the Convention, the Committee recommends the State party to ensure that all forms of physical and mental violence, including corporal punishment and sexual abuse against children in the family, schools and care institutions are prohibited. The Committee recommends that these measures be accompanied by public education campaigns about the negative consequences of ill-treatment of children. The Committee recommends the State party to promote positive, non-violent forms of discipline as an alternative to corporal punishment, especially in the home and schools. Programmes for the rehabilitation and reintegration of abused children need to be strengthened. Moreover, adequate procedures and mechanisms need to be established to; receive complaints; monitor, investigate and prosecute instances of ill-treatment; and ensure that the abused child is not victimised in legal proceedings. In regards to violence against girls and women, the Committee recommends the State party to implement the recommendations of the Committee on the Elimination of Discrimination Against Women (A/54/38). Attention should be given to addressing and overcoming socio-cultural barriers that inhibit victims from seeking assistance….”
(9 August 2000, CRC/C/15/Add.127, Concluding observations on initial report, paras. 33, 34, 39 and 40)

Human Rights Committee

“The Committee is concerned about the continued existence of child labour, the problem of mistreatment of children in some educational institutions, cruel punishment and the phenomenon of trafficking of children.

The State party must urgently address these issues so as to ensure the special protection to which children are entitled under article 24 of the Covenant. Specifically, corporal punishment must be prohibited.”
(24 July 2000, CCPR/CO/69/KGZ, Concluding observations on initial report, para. 19)

Committee Against Torture

“The Committee expresses its concern about the following:

b) the numerous and continuing reports of allegations of torture in breach of article 1 of the Convention; and other cruel, inhuman or degrading treatment or punishment (sometimes involving children) by law enforcement personnel, contrary to article 16 of the Convention.

“The Committee recommends that:

b) in view of the numerous reports of allegations of torture and ill-treatment by law-enforcement personnel, the State party take all necessary effective steps to prevent these events from occurring.”
(18 November 1999, A/54/44, Concluding observations on initial report, paras. 74 and 75)

Universal Periodic Review

Kyrgyzstan was examined in the first cycle of the Universal Periodic Review in 2010. The Government accepted recommendations to prohibit corporal punishment of children but stated that it is already prohibited in law (A/HRC/15/2, Report of the Working Group, paras. 53 and 76). Examination in the second cycle is scheduled for 2015.