Summary of law reform necessary to achieve full prohibition

Corporal punishment is unlawful in all settings, including the home.

Current legality of corporal punishment

Home

Corporal punishment is unlawful in the home. Article 319 of the Penal Code punishes assault and violence which does not lead to serious or lasting consequences for the victim. Prior to law reform in 2010, it also stated that “correction of a child by persons in authority over him is not punishable”. Law No. 2010-40 of 26 July 2010 amended article 319 to explicitly repeal this clause, making it a criminal offence to assault a child even lightly. Publication of the law in the Official Gazette, in July 2010, was accompanied by a statement from the Constitutional Council that the new law is wholly compatible with the Constitution and its effect is to make the provisions against light assault in article 319 of the Penal Code equally applicable to “correction” of children.

Serious assault is punishable under other articles in the Penal Code. The Code of Child Protection (1995, amended 2006) protects children from “usual ill-treatment”, defined in article 24 as “subjection of the child to torture, repeated violations of his physical integrity, or his detention, or the habit of depriving him of food, or committing any brutal act which is likely to affect the emotional or psychological well being of the child”.

Schools

Corporal punishment is unlawful in schools under article 319 of the Penal Code as amended in 2010 (see above).

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not an available sanction under the Code of Child Protection, the Code of Criminal Procedure (amended 2005) or the Penal Code.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. Article 319 of the Penal Code as amended in 2010 applies (see above). Law No. 2001-52 (2001) on the organisation of prisons provides for the physical and moral integrity of detainees, and corporal punishment is not among the permitted disciplinary measures in article 38 of Decree No. 2423 (1995) regulating detention centres for children.

Alternative care

Corporal punishment is unlawful in alternative care settings under article 319 of the Penal Code as amended in 2010 (see above).

Prevalence research

None identified in the last ten years.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with appreciation efforts by the State party to implement the 2002 Committee’s concluding observations on its second periodic report (CRC/C/15/Add.181). Nevertheless, the Committee regrets that some of its concerns and recommendations have been insufficiently or only partly addressed.

“The Committee refers the State party to its general comment No. 5 (2003) on general measures of implementation for the Convention on the Rights of the Child and recommends that it takes all necessary measures to address the recommendations from the concluding observations of the second report that have not yet been implemented or sufficiently implemented, including those related to corporal punishment (CRC/C/15/Add.181, para. 34).... The Committee also recommends that the State party provide adequate follow-up to the recommendations contained in the present concluding observations on the third periodic report.

“While welcoming that a draft law amending article 339 of the penal code is under consideration, the Committee is concerned that by virtue of this provision ‘castigation inflicted on a child by persons having authority over him or her shall not give rise to punishment’. The Committee is further concerned that corporal punishment remains lawful in the home and in alternative care settings and that in spite of internal regulations of the Ministry of Education prohibiting corporal punishment, it continues to be inflicted on children by teachers throughout the State party. Furthermore, the Committee expresses concern that the interpretation of the provision prohibiting   “usual ill-treatment” of children is much narrower than the Committee’s interpretation of corporal punishment. It regrets the insufficient information about and awareness of domestic violence and its harmful impact on children.

“Recalling its previous recommendation (CRC/C/15/Add.181, para. 34), the Committee draws the attention of the State party to its general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment according to which eliminating violent and humiliating punishment of children is an immediate and unqualified obligation of States parties. The Committee therefore urges the State party:

1. to amend the penal code so as to explicitly prohibit by law all forms of corporal punishment in all settings and ensure that those laws are effectively implemented and that legal proceedings are systematically initiated against those responsible for mistreating children;
2. to amend the definition of ‘usual ill-treatment’ so as to ensure that it is in line with the Committee’s interpretation of corporal punishment and other cruel or degrading forms of punishment as per general comment No. 8 (2006); 
3. to conduct a comprehensive study to assess the causes, nature and extent of corporal punishment throughout the State party and design policies and programmes to address it; and
4. to introduce public education, awareness-raising and social mobilization campaigns on the harmful effects of corporal punishment and domestic violence with a view to changing the general attitude towards this practice and promoting positive, non-violent, participatory values and forms of child-rearing and education.”

(11 June 2010, CRC/C/TUN/CO/3 Advance Unedited Version, Concluding observations on third report, paras. 6, 7, 39 and 40)

“While noting the provision in the Code of Child Protection regarding ill-treatment (art. 24) and the relevant provision in the Penal Code (art. 224), as well as the Ministerial Circular of December 1997 banning all forms of corporal punishment and practices hurting the dignity of children, the Committee is concerned that, as noted by the delegation, corporal punishment is only a crime if it is prejudicial to the health of the child. It notes with concern that violence as a means of discipline in the home and at school continues to be acceptable in the State party. The Committee regrets that no follow-up to the Committee’s previous recommendation has been initiated to protect children from ill-treatment (ibid., para. 17). The Committee is furthermore concerned that there is insufficient information about and awareness of domestic violence and its harmful impact on children.

“The Committee urges the State party to:

1. take all legislative measures to prohibit in the most effective way possible all forms of physical and mental violence, including corporal punishment and sexual abuse, against children in the family, in the schools and in institutions;
2. conduct a study to assess the nature and extent of ill-treatment and abuse of children, and design policies and programmes to address it;
3. carry out public education campaigns about the negative consequences of ill-treatment of children and promote positive, non-violent forms of discipline as an alternative to corporal punishment….”

(13 June 2002, CRC/C/15/Add.18, Concluding observations on second report, paras. 33 and 34)

“As far as protection from ill-treatment is concerned, the Committee recommends that the social preventive approach be strengthened and that further measures be undertaken to educate parents about their responsibilities towards their children, including through the provision of family education which should emphasize the equal responsibilities of both parents and contribute to the prevention of the use of corporal punishment.”
(21 June 1995, CRC/C/15/Add.39, Concluding observations on initial report, para. 17)