Summary of law reform necessary to achieve full prohibition

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

We have been unable to identify a defence of “reasonable chastisement” or similar enshrined in legislation, but provisions against violence and abuse of children are not interpreted as prohibiting all corporal punishment in childrearing. The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Explicit prohibition should be enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.

Explicit prohibition of corporal punishment should be enacted in relation to all education settings (public and private), all institutions accommodating children in conflict with the law, and 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. Provisions against violence and abuse in the Criminal Code (1998, amended 2004), the Family Code (1998) and the Constitution (1994) are not interpreted as prohibiting corporal punishment in childrearing.

Schools

There is no explicit prohibition of corporal punishment in schools. The rights and obligations of education workers are set out in the Education Act (2004, amended 2006), but we have no details of its provisions.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not among the sanctions for persons under 18 specified in the Criminal Code (article 87). Cruel, inhuman or degrading treatment or punishment is prohibited in the Penal Enforcement Code (article 10), the Constitution (article 18).

There is no prohibition of corporal punishment as a disciplinary measure in penal institutions.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

According to statistics from UNICEF on violence in the family, 74% of children aged 2-14 experienced physical punishment and/or psychological aggression in 2005-2006: 50% experienced physical punishment and psychological aggression, 19% experienced psychological aggression only and 5% experienced physical punishment only. In total, 55% of children experienced physical punishment, while only 15% of mothers and caregivers believe that physical punishment is necessary in childrearing. Of girls and women aged 15-49, 74% think 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)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes the State party’s efforts to raise awareness on violence against children, including campaigns ‘protecting children from abuse’ as well as establishment of rehabilitation centres for women and children. The Committee, however, regrets that these activities are limited to certain regions of the country and corporal punishment is not explicitly prohibited under domestic laws and is extensively used as a disciplinary measure at home, schools, and child care institutions. The Committee regrets the lack of representative data on corporal punishment of children by parents, teachers and the staff of child care institutions.

“The Committee recommends that the State party, as a matter of urgency:

1. conduct a study on prevalence of corporal punishment in all settings;
2. enact legislation in order to explicitly prohibit all forms of corporal punishment in all settings;
3. organize awareness campaigns on the negative impact of corporal punishment on children, and provide teachers, parents, community leaders, and personnel working in penal institutions with training;
4. investigate reported cases of corporal punishment and apply adequate sanctions.”

 (29 January 2010, CRC/C/TJK/CO/2 Advance Unedited Version, Concluding observations on second report, paras. 39 and 40)

“The Committee is concerned at numerous and continuing reports of ill-treatment of persons under the age of 18 by the militia, including psychological intimidation, corporal punishment and torture. The Committee is also concerned that victims of such treatment are largely from vulnerable groups, such as children living and/or working on the streets; and that fear of reprisals and inadequate complaints procedures discourage children and their parents from filing complaints.

“In the light of article 37 of the Convention and the Code of Conduct for Law Enforcement Officials, adopted by the General Assembly in its resolution 34/169 of 17 December 1979, the State party should take all necessary and effective steps to prevent incidents of ill-treatment by law enforcement officials. The Committee recommends that the State party provide the militia with training on how to deal with persons under the age of 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 at the incidence of ill-treatment of children in the family, in institutions and in school. The Committee is also concerned that violence against women is a problem in Tajikistan and that this has harmful consequences on children.

“In the light of articles 19 and 39 of the Convention, the Committee recommends that the State party ensure that all forms of physical and mental violence, including corporal punishment and sexual abuse, against children in the family, in schools and in care institutions are prohibited. The Committee recommends that measures to that effect be accompanied by public education campaigns about the negative consequences of ill-treatment of children. The Committee recommends that the State party promote positive, non-violent forms of discipline as an alternative to corporal punishment, especially in the home and schools….”
(23 October 2000, CRC/C/15/Add.136, Concluding observations on initial report, paras. 28, 29, 34 and 35)

Human Rights Committee

“The Committee is concerned about reports of persistent recourse to corporal punishment as a means of discipline in schools (art. 24).

The State party should take the necessary measures to prohibit this practice.”
(18 July 2005, CCPR/CO/84/TJK, Concluding observations on initial report, para. 23)