European Committee of Social Rights, 2005

Observations/decisions on corporal punishment in the European Committee of Social Rights' conclusions on states examined in 2005

Belgium

(July 2005, Conclusions XVII-2)

"The Committee furthermore recalls that corporal punishment is unlawful in schools and that by Decision of the Flemish Government regarding youth care of 1994 (Besluit van de Vlaamse regering inzake de erkenningsvoorwaarden en de subsidienormen voor de voorzieningen van de bijzondere jeugbijstand), corporal punishment is prohibited in institutional care. It asks whether such a regulation exists for the French Communities.

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition in legislation must be combined with adequate sanctions in penal or civil law.

"In this regard, the Committee recalls its decision on the merits in World Organisation against Torture (‘OMCT’) v. Belgium (Collective Complaint No. 21/2003, decision on the merits, 7 December 2004), in which it found that Belgium was in violation of Article 17 of the Charter since there was no prohibition in legislation of corporal punishment of children within the family. The Committee notes that the situation has not been remedied.

"The Committee concludes that the situation in Belgium is not in conformity with Article 17 of the Charter on the ground that there is no prohibition in legislation of all corporal punishment of children within the family."

Czech Republic

(July 2005, Conclusions XVII-2)

"The Committee recalls that Article 17 of the Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition in legislation must be combined with adequate sanctions in penal or civil law.

"The report states that under the amended Families Act (1998), parents have the right to use reasonable correctional means that do not affect the child’s dignity nor endanger the child’s health, or his physical, emotional, intellectual, and moral development. The Committee notes that this provision does not explicitly prohibit the corporal punishment of children within the family. It notes from another source that there is no legislation explicitly prohibiting corporal punishment, and that it is practised in the family, in schools and in other public institutions, including alternative care contexts. The Committee therefore considers that since there is no explicit prohibition in legislation of corporal punishment in the home, in schools and in other institutions, the situation cannot be considered to be in conformity with Article 17 of the Charter on this point.

"The Committee furthermore notes from the report that the Notification of the Ministry of Education, Youth and Sport No. 291/1991 Coll., on elementary school, regulates the correctional and educational measures which the school may use, i.e. praise and other rewards and measures to improve discipline (warnings and reprimands). It asks what other legislative and administrative measures, as well as public education initiatives are used to end the use of corporal punishment.

"The Committee concludes that the situation in the Czech Republic is not in conformity with Article 17 of the Charter on the ground that there is no explicit prohibition in legislation of corporal punishment in the home, in schools and in other institutions."

Estonia

(March 2005, Conclusions 2005)

"The Constitution establishes that no one shall be subjected to torture or to cruel or degrading treatment or punishment. The Child Protection Act establishes that it is prohibited to humiliate, frighten or punish a child in any way which abuses him or her, causes bodily harm or otherwise endangers his or her mental or physical health.

"Furthermore, Section 40 of the Act, under the heading Education, stipulates that instruction may not involve physical violence or mental abuse. The Committee asks that the next report confirm that this entails that corporal punishment is indeed prohibited in all schools. It asks that the next report provide information on the prohibition of corporal punishment in institutions.

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition must be combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of corporal punishment in the home, the situation in Estonia cannot be considered to be in conformity with Article 17 of the Charter.

"The Committee concludes that the situation in Estonia is not in conformity with Article 17.1 of the Revised Charter on the ground that corporal punishment of children is not prohibited within the family."

France

(March 2005, Conclusions 2005)

"In the previous conclusion the Committee noted that the Penal Code prohibits violence against the person and provides for increased penalties where the victim is under 15 years of age or where the perpetrator is related to the child or has authority over the child, but does not necessarily cover all forms of corporal punishment which it found not to be in conformity with the Revised Charter. The Committee finds no information in the report that the situation has changed. The Committee notes therefore that corporal punishment is not prohibited in the home or in institutions and other childcare settings and that this situation is not in conformity with the Revised Charter. 

"The Committee notes from another source that High Court ruling of 1889 allowed a ‘right to correction’ for teachers and for parents. A 2000 judicial ruling stated that corporal punishment which is repetitive and not educational is not covered by this right. The Committee asks the next report to explain the implications of the 2000 judicial ruling with regard to the use of corporal punishment in the home.

"The Committee concludes that the situation in France is not in conformity with Article 17.1 of the Revised Charter on the grounds that:

- corporal punishment of children is not prohibited…."

Germany

(2005, Conclusions XVII-2, vol. 1, pages 282-283)

"The Committee notes that a number of provisions in the German Penal Code ensure the prohibition of personal injury. Article 223 et seq. of the German Penal Code stipulates that it is a punishable offence to physically maltreat a person and to endanger a person’s health. This prohibition applies regardless of the place of the offence. The Committee notes from another source that the law to prohibit violence in the upbringing of children of 2 November 2000 grants children the right to an upbringing free of violence and prohibits all forms of violence against children, including the application of physical punishment for the purposes of upbringing."

Greece

(July 2005, Conclusions XVII-2)

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition in legislation must be combined with adequate sanctions in penal or civil law.

"The Committee notes that by Presidential Degree 201/98 corporal punishment is prohibited in primary schools. However, the Committee notes from the information in the report that there is no prohibition in legislation of all corporal punishment of children, in the home, in secondary schools and in other institutions. The Committee therefore finds that the situation in Greece is not in conformity with Article 17 of the Charter.

"In this regard, the Committee refers to its decision on the merits in the World Organisation against Torture (‘OMCT’) v. Greece case (Collective Complaint No. 17/2003, decision on the merits, 7 December 2004) in which it found that Greece was in violation of Article 17 of the Charter since there was no prohibition in legislation of all forms of corporal punishment of children, within the family, in secondary schools and in other institutions and forms of care. The Committee takes note of the information provided by the Delegation of Greece at its 924th meeting (20 April 2005) of the Ministers’ Deputies. As regards the first ground of the violation, the Committee takes note of the establishment within the Ministry of Justice of a special drafting Commission charged with elaborating a draft law on the prohibition of all forms of corporal punishment within the family. As regards the second ground of the violation, it takes note of the adoption of Law No. 3328/2005 in which article 21 explicitly prohibits corporal punishment of students in secondary schools. As regards the third ground of the violation, it takes note of the Ministry of Health and Social Solidarity’s decision to proceed towards a harmonisation of the legislation in force in order to explicitly prohibit corporal punishment in all institutions and forms of care for children. The Committee asks for the next report to supply all information on the measures announced with regard to the prohibition of corporal punishment within the family and in all institutions and forms of care for children in order to make a full assessment of the situation for the next reference period.

"The Committee concludes that the situation in Greece is not in conformity with Article 17 of the Charter on the ground that there is no prohibition in legislation of all corporal punishment of children:

- in the home,

- in secondary schools during the reference period, and

- in other institutions…."

Hungary

(March 2005, Conclusions XVII-2)

"The report states that the Act on the Protection of Children provides that corporal punishment is prohibited, and that children may not be subjected to torture, or to cruel, inhumane, or humiliating punishment of treatment (Article 6 Sub-paragraph (5)). In pre-schools and schools, the personality, human dignity, and rights of a child and/or student must be respected, and he or she must be protected against physical and emotional violence. Under the Public Education Act, no child or student may be subjected to corporal punishment, torture, cruel, inhuman, or humiliating punishment or treatment (Article 10, Sub-paragraph (2)). The Committee notes that Hungarian penal law practice recognises the exercise of the right of house discipline within the family. It notes that there is no prohibition in legislation of corporal punishment in the home. 

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of corporal punishment in the home, the situation cannot be considered to be in conformity with Article 17 of the Charter.

"The Committee concludes that the situation in Hungary is not in conformity with Article 17 of the Charter on the grounds that:

- corporal punishment in the home is not prohibited…."

Iceland

(July 2005, Conclusions XVII-2)

"Under Icelandic law, all violence is punishable except where employed as an emergency measure to serve a greater interest. The Committee notes that corporal punishment (and mental punishment) is prohibited in homes and institutions for children (Section 82 of the Child Protection Act, No. 80/2002).

"It notes from another source that corporal punishment of children is prohibited in schools and asks that the next report indicates the legislation laying down this prohibition.

"The Committee notes that the Child Protection Act, No. 80/2002, states that parents are prohibited from using physical violence against their children. Section 1, paragraph 2 makes particular mention of care and consideration as elements in custodial and upbringing obligations. In this context the report states that the Icelandic Parliament, during discussions held on the Child Protection Act, interpreted this paragraph to imply the important principle that children should be shown respect, and not be subjected to corporal punishment. The Committee further notes that said obligation of parents is reinforced by the Children’s Act of 2003, which entered into force in November 2003, which explicitly prohibits all forms of corporal punishment of children in the home."

Latvia

(March 2005, Conclusions XVII-2)

"The Committee notes from another source that the prohibition on corporal punishment of children includes punishment within the family."

Lithuania

(March 2005, Conclusions 2005)

"The Committee notes that the Criminal Code, which was applicable until 1 May 2003, envisaged penal liability for violence against minors. The Committee notes that according to the Act on Fundamentals of Protection of the Rights of the Child, a child can be taken away from the parents in case of abuse or violence of the child. The Committee asks that the next report clarify whether corporal punishment is prohibited in schools and institutions.

"From another source, the Committee notes that corporal punishment within the family is not prohibited and it further notes that the UN Committee on the Rights of the Child has recommended that the Lithuanian Government adopt legislation to explicitly prohibit all forms of corporal punishment of children within the family. The Committee recalls that Article 17 of the Revised Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition must be provided for in legislation and combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of corporal punishment within the family, the situation in Lithuania is not in conformity with Article 17 of the Revised Charter.

"The Committee concludes that the situation in Lithuania is not in conformity with Article 17.1 of the Revised Charter on the ground that corporal punishment of children is not prohibited within the family."

Malta

(March 2005, Conclusions XVII-2)

"The Committee notes that the report provides no information on corporal punishment of children. It notes from another source that the use of corporal punishment in schools has been prohibited and that the draft Children Act includes a prohibition on physical punishment. The Committee asks whether legislation prohibits corporal punishment of children in other institutions. The Committee notes that corporal punishment and ‘reasonable chastisement’ in the home is not legally prohibited.

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition must be combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of corporal punishment in the home, the situation in Malta is not in conformity with Article 17 of the Charter.

"The Committee concludes that the situation in Malta is not in conformity with Article 17 of the Charter on the grounds that:

- corporal punishment in the home is not prohibited…."

Netherlands

(July 2005, Conclusions XVII-2)

"The report states that an amendment to the Civil Code is in preparation banning all forms of violence of children. Meanwhile it notes that not all forms of violence of children are prohibited. The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of all forms of corporal punishment of children, the situation cannot be considered to be in conformity with Article 17 of the Charter."

Poland

(March 2005, Conclusions XVII-2)

"In its previous conclusion the Committee noted that Ministerial Regulations prohibit corporal punishment of children in public schools. It asked about the situation in private schools and in institutions. The report is not clear on this. The Committee therefore repeats its request for this information.

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law. The Committee notes that since corporal punishment is still socially accepted and there is no legislation prohibiting corporal punishment of children in the home, this situation cannot be considered to be in conformity with the Charter

"The Committee concludes that the situation in Poland is not in conformity with Article 17 of the Charter on the grounds that:

- corporal punishment in the home is not prohibited…."

Romania

(March 2005, Conclusions 2005)

"The Committee recalls that Article 17.1 of the Revised Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition must be combined with adequate sanctions in penal or civil law. The Committee notes that corporal punishment within the family was not explicitly prohibited during the reference period. Consequently, the situation in Romania is not in conformity with Article 17 of the Revised Charter.

"The Committee notes that the new law on the protection and promotion of the rights of the child contains a provision on the prohibition of corporal punishment of children within the family and in institutions…. The Committee will examine the new legislation in the next examination of Article 17.1 of the Revised Charter.

"The Committee concludes that the situation in Romania is not in conformity with Article 17.1 of the Revised Charter on the grounds that:

- corporal punishment of children within the family was not prohibited during the reference period…."

Spain

(March 2005, Conclusions XVII-2)

"With regard to corporal punishment in schools and educational institutions, the 1985 Organic Law regulating the right to education grants pupils the right to their personal integrity and dignity. Pupils are also protected against all physical or moral aggression as a basic right. The Committee asks whether legislation prohibits corporal punishment of children in other institutions.

"The Committee notes that there has been no amendment to Article 154 of the Spanish Civil Code which reads that parents ‘may administer punishment to their children reasonably and in moderation’.

"The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition must [be] combined with adequate sanctions in penal or civil law. Therefore, it considers that since there is no prohibition in legislation of corporal punishment in the home, the situation in Spain is not in conformity with Article 17 of the Charter.

"The Committee concludes that the situation in Spain is not in conformity with Article 17 of the Charter on the ground that corporal punishment in the home is not prohibited."

Turkey

(March 2005, Conclusions XVII-2)

“The Committee notes that according to Article 6 of Law 4357 (13) and Articles 20 and 22 of Law 1702 (14), a teacher who commits a harmful act against a pupil may be sanctioned by inter alia the non payment of his/her salary and pursuant to Article 27 of the latter law, a teacher who commits sexual harassment against a pupil is sanctioned by dismissal. From another source the Committee notes that corporal punishment is used in schools and other institutions. Since the report is unclear on which legislation actually prohibits all forms of corporal punishment in schools and in institutions, the Committee asks that the next report contain this information. It asks also what measures have been taken to effectively enforce a ban on corporal punishment in schools and institutions. This situation is not in conformity with Article 17 of the Charter.

“The Committee concludes that the situation in Turkey is not in conformity with Article 17 of the Charter on the grounds that:

- corporal punishment in the home is not prohibited….”

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