Summary of law reform necessary to achieve full prohibition

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

There is no defence for the use of corporal punishment enshrined in legislation but there is no explicit prohibition. In theory, the prohibition of “humiliating actions and punishments which insult the child’s human dignity” in article 69 of the Serbian Family Act (2005) would prohibit corporal punishment by parents, which invariably violates a child’s dignity, but the law is not interpreted in this way – and the potential for such an interpretation is undermined by the near universal social acceptance and use of corporal punishment in childrearing. Realisation of children’s rights to equal protection from assault under the law and to protection from all forms of violence requires clarity in law that no degree or form of corporal punishment is acceptable or lawful, without exception. Explicit prohibition should be enacted of all corporal punishment and other humiliating and degrading treatment, in the home and all other settings where adults exercise authority over children.

Explicit prohibition of corporal punishment should be enacted in legislation relating to all alternative care settings, public and private, including residential institutions, day care provision, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Provisions against violence and abuse in the Criminal Code (2005), the Misdemeanours Act (2007) and the Constitution (2006) are not interpreted as prohibiting all corporal punishment in childrearing. The Serbian Family Law (2005) states (article 72(2)): “Parents may not subject the child to humiliating actions and punishments which insult the child’s human dignity and have the duty to protect the child from such actions taken by other persons.” But there is no explicit prohibition of all corporal punishment.

The Government stated its commitment to prohibition in 2007. In 2008, the Ministry of Social Policy and the Council for Child Rights adopted a National Strategy for the Prevention and Protection of Children Against Violence which included the aim of abolishing corporal punishment of children; plans were made for drafting amendments to the Family Act, and Minister for Education Mr Zarko Obradovic signed the Council of Europe petition against all corporal punishment of children. In accepting the recommendations at the Universal Periodic Review in the same year (see below), the Government again stated its intention to prohibit corporal punishment of children; in 2011, a Working Party developed a Draft Law on the Rights of the Child which includes provisions to prohibit all corporal punishment; as at January 2012 this is under discussion.

Schools

Corporal punishment was first explicitly prohibited in schools in article 67 of the Law on Public Schools (Yugoslavia, 1929). It is now unlawful under the Law on Secondary Schools (1992), the Law on Elementary Schools (1992) and the Law on the Bases of the System of Education and Upbringing (2003, 2009).

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not a permitted sentence for crime under the Criminal Code or the Law on Juvenile Criminal Offenders and Criminal Protection of Juveniles (2005).

Corporal punishment is unlawful as a disciplinary measure in penal institutions. It is not among permitted disciplinary measures against juveniles in detention in the Law on Enforcement of Penal Sanctions, but this Law does not explicitly prohibit it. The Law on Juvenile Criminal Offenders and Criminal Protection of Juveniles does not include corporal punishment among permitted disciplinary measures and states that force may only be used exceptionally and to prevent a physical attack on others or self-injury (article 132).

Alternative care

Corporal punishment is prohibited in all day care which forms part of the education system under education law (see above), including nurseries, kindergartens, preschools, after school care, workshops and additional education activities. But it is lawful in other forms of alternative care. It is not explicitly prohibited in the Law on Social Protection and Social Security Providing to Citizens (1991).

Prevalence research

A UNICEF report published in 2010 states that 75% of children aged 2-14 experienced violent discipline (physical punishment and/or psychological aggression) in 2005-2006. Fifty-five per cent experienced physical punishment, while a smaller percentage (11%) of mothers and caregivers thought that physical punishment was necessary in childrearing; non-violent discipline was also very widely used, experienced by 90% of children. Eight 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); 64% experienced psychological aggression (being shouted at, yelled at, screamed at or insulted). Children living in households with adults with a higher average level of education were less likely to experience violent discipline than those living with less educated adults. No significant differences in children’s experience of violent discipline were found according to sex, age, household size 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 five per cent of disabled children aged 2-9 were hit or slapped on the face, head or ears or hit over and over as hard as possible with an implement, compared with 8% of non-disabled children; 6% 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 2006 study surveyed nearly 27,000 children aged 9-15 and 4,000 adults including teachers, secretaries, technical and security staff in 50 schools. 32% of children said that they had experienced violence from a teacher in the past three months, with 5% of children saying that they had experienced violence from teachers several times and even daily; 17% reported that a teacher had hit them or pulled their hair or ears at least once, 24% had experienced verbal aggression from a teacher, and 8% had been threatened by a teacher in the past three months. (Plut, D. & Popadic, D. (2006), School Without Violence: towards the safe and enabling environment for children, Belgrade: UNICEF and Institute of Psychology at the Faculty of Philosophy in Belgrade)

A report on institutions in Serbia found that, as there are no enforceable laws or regulations regulating the use of physical restraints and no oversight, children with disabilities were kept in restraints for days, weeks or years. Restraint was used for the convenience of staff and included being tied to beds, chairs and cribs. (Ahern, L., Rosenthal, E. et al (2007), Torment not Treatment: Serbia’s Segregation and Abuse of Children and Adults with Disabilities, Mental Disability Rights International)

Interviews with young offenders, carried out as part of a UNICEF assessment of the juvenile justice system, revealed that many had experienced physical punishment during custody in penal institutions. (Conragan, C., 2002, Children in conflict with the law: Victims of the transition – An assessment of the juvenile justice systems in the Republics of Serbia and Montenegro, UNICEF)

In various surveys published between 1988 and 2006, up to 40% of children have reported being subjected to corporal punishment at school. (Djordjević, B. & Djordjević, J. (1988), Učenici o svojstvima nastavnika, Beograd: Prosveta; Gašić-Pavišić, S. (1998), “Nasilje u školi. U M. Milosavljević, M. (ur.), Nasilje nad decom, Beograd: Fakultet političkih nauka, Univerzitet u Beogradu; Plut, D. & Popadić, D. (2006), Škola bez nasilja- ka sigurnom i podsticajnom okruženju za decu, UNICEF, Institut za psihologiju Filozofskog fakulteta; all cited in Srna, J. & Stevanović, I. (2011), “Serbia: Moving Towards the Abolition of Physical Punishment of Children”, in Durrant, J. E. & Smith, A. B. (eds) (2011), Global Pathways to Abolishing Physical Punishment: Realizing Children’s Rights, New York: Routledge, pp.222-233)

In a study of children in six state residential care institutions, 26% of children reported experiencing physical violence at least once from a member of staff; 17% of adults working in these institutions reported that some of their colleagues were violent towards the children. (Plut, D. & Popadić, D. (2007), U lavirintu nasilja – istraživanje nasilja u ustanovama za decu bez roditeljskog staranja u Srbiji, Beograd: Save the Children UK & Institut za psihologiju, reported in Srna, J. & Stevanović, I. (2011), “Serbia: Moving Towards the Abolition of Physical Punishment of Children”, in Durrant, J. E. & Smith, A. B. (eds) (2011), Global Pathways to Abolishing Physical Punishment: Realizing Children’s Rights, New York: Routledge, pp.222-233)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is particularly concerned that corporal punishment in the family remains lawful, and continues to be used as a widely used disciplinary method.

“The Committee urges the State party to expressly prohibit and enforce by law all corporal punishment in the family. The State party is further encouraged to undertake awareness-raising campaigns and education programmes on non-violent forms of discipline, and to conduct research into the prevalence of corporal punishment of children in the family and other settings and enforce the law.”
(20 June 2008, CRC/C/SRB/CO/1, Concluding observations on initial report, paras. 46 and 47)

“The Committee notes that corporal punishment of children is not explicitly prohibited in all settings and that it is a common and accepted means of childrearing (art. 16).

The State party, taking into account the recommendation in the United Nations Secretary General’s Study on Violence Against Children, should adopt and implement legislation prohibiting corporal punishment in all settings, including the family, supported by the necessary awareness-raising and public education measures.”
(19 January 2009, CAT/C/SRB/CO/1, Concluding observations on initial report, para. 20)

Universal Periodic Review

Serbia was examined in the first cycle of the Universal Periodic Review in 2008. The Government accepted the recommendations to prohibit all corporal punishment of children (A/HRC/10/78/Add.1, Report of the Working Group: Addendum). Examination in the second cycle is scheduled for 2013.