European Committee of Social Rights, 2011

Observations/decisions on corporal punishment in the European Committee of Social Rights' conclusions on states examined in 2011

Andorra

(January 2012, Conclusions 2011)

"The Committee recalls that under Article 17 of the Charter States' domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. There will be no sufficient prohibition in law unless a state can demonstrate that legislation is interpreted as prohibiting corporal punishment and effectively applied as such.

"According to the report, Law of 21 February 2005 on the Penal Code prohibits all forms of physical and psychological violence against persons in general, including corporal punishment. Even if no legal text deals with corporal punishment, it is forbidden in the family and educational establishments. "The Committee notes from another source that corporal punishment is lawful in the home. The Llei qualificada on adoption and other forms of protection of abandoned minors states that the purpose of parental authority is to protect the child’s safety, health and morals, and parents have a right and duty to care for, watch over, maintain and educate the child (Sections 27-28). The Criminal Code (2005) punishes habitual and repeated domestic violence and physical ill-treatment, including physical assault which does not cause injury (Articles 114 and 476), but this is not interpreted as prohibiting all corporal punishment in childrearing. The Government accepted the recommendations on the issue during the Universal Periodic Review.

"According to the same source, there is no explicit prohibition of corporal punishment in schools, but the qualified law on education (1993), the law regulating the Andorran educational system (1994), the regulations for private teaching centres (1994), the regulations for safety in schools (2000) and the law guaranteeing the rights of the disabled (2002) provide for the respect of freedom and basic rights, including the dignity of the person.

"The Committee notes from the same source that there is no explicit prohibition of corporal punishment in alternative care settings.

"The Committee considers that the Andorran legislation lacks explicit prohibition of corporal punishment in the home, in schools and in institutions. Therefore, the situation is not in conformity with the Charter on this ground. "The Committee concludes that the situation in Andorra is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment is not explicitly prohibited in the home, in schools and in institutions."

Armenia

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee held that the situation in Armenia was not in conformity with the Charter as corporal punishment of children was not explicitly prohibited in the home. In this connection the Committee takes note of the information contained in the report of the Governmental Committee of the Social Charter to the Committee of Ministers (TS-G (2009) 4, §250) and also of the information provided in the report.

"The Committee notes that in December 2010, the Government undertook to analyse legislation relating to children with a view to harmonising domestic law with international standards. In the same year, the Government accepted the recommendations to prohibit corporal punishment of children made during its Universal Periodic Review by the Human Rights Council. The Committee wishes to be informed of these developments.

"The Committee notes from another source that corporal punishment is lawful in the home. The Family Code (2004) states in Article 53 that the ways of children’s rearing should exclude ignorant, cruel, violent attitude towards them, humiliating human dignity, offence or exploitation...’ Article 9 of the Rights of the Child Act (1996) states that children have a right to protection from all forms of violence and that no person, including parents, must inflict violence on the child or punishment which affects the child’s dignity, and article 22 protects the child’s right to honour and dignity. But these provisions and others in the Criminal Code (2003) and the Constitution (1995) are not interpreted as prohibiting all corporal punishment in childrearing.

"The Committee considers that the situation which it has previously considered not to be in conformity with the Charter has not changed. Therefore it reiterates its previous finding of nonconformity on this point.

"The Committee concludes that the situation in Armenia is not in conformity with Article 17§1 of the Charter on the grounds that:

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

Austria

(January 2012, Conclusions 2011)

"The Committee notes from another source that corporal punishment is prohibited in the home. Article 146a of the General Civil Code (1989) states: ‘The minor child must follow the parents’ orders. In their orders and in the implementation thereof, parents must consider the age, development and personality of the child; the use of force and infliction of physical or psychological suffering are not permitted.’ The defence of ‘reasonable’ punishment was removed from the law on assault in 1977.

"Corporal punishment was banned in all schools in 1974. Section 47.3 of the School Education Act states: ‘In order to maintain discipline in schools, teachers may not have recourse to means that would injure the human dignity of pupils, such as corporal punishment or insulting remarks or collective punishments."

Belgium

(January 2012, Conclusions 2011)

"The report, again, describes the legislation concerning the respect for moral, physical and psychological integrity of a child which is reflected in the Constitution as well as the Civil Code. The Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) para 24) that the absence of legislation explicitly banning corporal punishment of children does not mean that it is authorised in the Belgian law or is not taken into account. In practice, as the Belgian courts have clearly demonstrated, current legislation undoubtedly applies to corporal punishment.

"According to Decree of 13 July 1994 of the Flemish Community, stipulates that all corporal punishment (correction) and physical violence is banned in the institutions. Decree of 7 may 2004 stipulates that corporal punishment is forbidden in the structures for assistance to the youth. The Committee notes that the legislation that would ban corporal punishment in the home is still missing in the Flemish Community.

"The Committee notes from another source that Belgium has not taken the necessary measures to ensure that corporal punishment in the family and in non-institutional childcare settings is explicitly prohibited by law. It further notes from another source that corporal punishment is unlawful in schools under case law relating to provisions against assault in the Criminal Code, but there is no explicit prohibition in legislation. Corporal punishment is lawful in the home.

"The Committee considers that the situation which it has previously found not to be in conformity on this ground has not changed. Therefore, it reiterates its previous conclusion of non-conformity.

"The Committee concludes that the situation in Belgium is not in conformity with Article 17§1 of the Revised Charter on the following grounds:

- corporal punishment is not prohibited in the home and in childcare institutions in all communities of Belgium…."

Bosnia and Herzegovina

(January 2012, Conclusions 2011)

"The Committee recalls that under Article 17 of the Charter States' domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. There will be no sufficient prohibition in law unless a state can demonstrate that legislation is interpreted as prohibiting corporal punishment and effectively applied as such.

"The Committee notes from another source that corporal punishment is unlawful in the home in the Republic of Srpska (RS) but lawful in the Federation of Bosnia and Herzegovina (FBiH) and the District of Brcko (BD). In the Republic of Srpska, Article 97(1) of the RS Family Law (2002, amended in 2008) states: 'Parents and other family members shall not subject a child to degrading treatments, mental and physical punishment nor abuse….' In the Federation of Bosnia and Herzegovina, the FBH Criminal Code (2003), the FBH Law on Protection from Domestic Violence (2005) and the FBH Family Law (2005) prohibit violence in the family but do not explicitly prohibit all corporal punishment in childrearing. Similarly, the BD Criminal Code (2004) and the BD Family Law (2007) prohibit domestic violence but do not explicitly prohibit all corporal punishment of children.

"According to the same source, there is no explicit prohibition of corporal punishment in alternative care settings. Preschool provision is governed by the Framework Law on Preschool Upbringing and Education (2007) which states the primacy of the child’s right to 'upbringing and education and proper care for the benefit of their physical and mental health and safety' (Article 7) but does not prohibit corporal punishment.

"The Committee considers that there is no explicit prohibition of corporal punishment in the home in the Federation of Bosnia and Herzegovina and the District of Brcko. Corporal punishment is not explicitly prohibited in schools and in institutions and therefore the situation is not in conformity with the Charter.

"The Committee concludes that the situation in Bosnia and Herzegovina is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment is not prohibited in the home, neither in schools nor in institutions."

Bulgaria

(January 2012, Conclusions 2011)

"As regards corporal punishment of children, the Committee notes from another source that corporal punishment is prohibited in the home. Article 11(2) of the Child Protection Act (2000) states: ‘Every child has a right to protection against all methods of upbringing, that undermine his or her dignity, against physical or other types of violence; against all forms of influence, which go against his or her interests.’ According to the same source, corporal punishment is unlawful in schools and in institutions."

Croatia

(January 2012, Conclusions 2011)

"The Committee notes that there have been no changes to the situation which it has previously found to be in conformity with the Charter."

Cyprus

(January 2012, Conclusions 2011)

"The Committee notes from another source that corporal punishment was made unlawful in the home in 1994, in the Violence in the Family (Prevention and Protection of Victims) Law (1994) which prohibits ‘any unlawful act or controlling behaviour which results in direct actual physical, sexual or psychological injury to any member of the family’ (Article 3) and was interpreted as prohibiting all corporal punishment in childrearing. The provision was reiterated in the new Act on Violence in the Family adopted in 2000. However, the Children Law (1956) provides for ‘the right of any parent, teacher or other person having the lawful control or charge of the child to administer punishment to him’ (Section 54).

"In June 2009 a new draft Law for the Welfare, Care and Protection of Children, intended to replace the Children Law and to harmonise domestic legislation with the Convention on the Rights of the Child, was expected to be submitted to the House of Representatives in 2010.

"According to the report, the Children Law was amended in 1999 and 2002 and explicitly prohibits corporal punishment and includes no defences. The Committee asks whether the above mentioned draft law entered into force and if so, whether it explicitly prohibits corporal punishment in the home. In the meantime it reserves its position on this point."

Czech Republic

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee held that the situation was not in conformity with the Charter as there was no explicit prohibition in legislation of corporal punishment in the home and in institutions.

"The Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) 24 § 200) that Amendment to Act (No. 109/2002) on Institutional Care signed by the President on 2 September 2005 states exactly the extent of correctional means, which can be used and corporal punishment is not among them and therefore it cannot be used in these institutions. The Committee further notes from the report that the Czech law does not provide for a general prohibition of corporal punishment, but nevertheless parents are only allowed to exercise their parental authority in a way that does not affect the child's dignity and in no way jeopardises the health of the child and his/her physical, emotional, intellectual and moral development. Parents cannot resort to inappropriate means of education and this prohibition applies to the use of excessive corporal punishment. Such acts are punishable under Section 59 Paragraph 1.h of the Act on Socio-Legal Protection of Children.

"The Committee notes from another source that there that is still no legislation which explicitly prohibits corporal punishment of children in all settings, including in the family. The UN CRC urges the Czech Republic to address the widespread tolerance of corporal punishment by, inter alia, conducting awareness-raising and public education programmes with a view to encouraging the use of alternative disciplinary measures in accordance with the inherent dignity of the child, and in doing so, to ensure that corporal punishment is prohibited in all settings including the family. 

"The Committee notes from another source that corporal punishment is lawful in the home. Section 31(2) of the Family Act (1963) states that in caring for children, parents ‘may use adequate upbringing measures so that the child’s dignity is not violated and his or her health, emotional, intellectual and moral development are not endangered’, but neither this nor provisions against violence and abuse in the Act on Social and Legal Protection of Children (amended 2002), the Charter on Fundamental Rights and Freedoms (1992), the Act on Misdemeanours (1990), the Criminal Code (2009), the Constitution (1992) and the Domestic Violence Law (2006) are interpreted as prohibiting all corporal punishment in childrearing. Corporal punishment is lawful in alternative care settings. There is no provision for it in the Act on execution of institutional upbringing or protective upbringing at school facilities and on preventive upbringing care at school facilities, but it is not explicitly prohibited.

"The Committee holds that the situation which it has previously found not to be in conformity with the Charter has not changed. Therefore, it reiterates its previous finding of non-conformity on this ground.…

“The Committee concludes that the situation is not in conformity with Article 17 of the Charter of 1961 as corporal punishment of children is not explicitly prohibited in the home and in institutions."

Denmark

(January 2012, Conclusions 2011)

"The Committee notes from another source that corporal punishment is prohibited in the home, in schools and in child care institutions."

Estonia

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee held that the situation was not in conformity with the Charter as there was no explicit prohibition of corporal punishment in the home. In this connection the report states that a provision about the obligation of mutual support and respect has been added to the new Family Law Act in addition to Section 121 of the Penal Code that prescribes a penalty for physical abuse.

"The Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) 24, § 74) that the proposed new Child Protection Act will seek to explicitly prohibit physical punishment of children. The Committee notes that the report does not provide any information regarding the new Act.

"The Committee notes from another source that corporal punishment is lawful in the home. There is no legal defence for its use enshrined in law, but it is widely socially and legally accepted. Section 31(1) of the Child Protection Act (1992) prohibits only corporal punishment which is considered to cause harm: 'Every child shall at all times be treated as an individual with consideration for his or her character, age and sex. It is prohibited to humiliate, frighten or punish the child in any way which abuses the child, causes bodily harm or otherwise endangers his or her mental or physical health.' According to this source, provisions against violence and abuse in the Child Protection Act, the Family Law (1994), the Code of Administrative Offences and the Penal Code (2002) are not interpreted as prohibiting all corporal punishment in childrearing. However, according to the same source, the Government is committed to prohibition, as at November 2010 there were plans to draft a new Child Protection Act. Nevertheless, the Committee notes that the situation which it has previously held not to be in conformity has not changed during the reference period. Therefore it reiterates its previous finding of non-conformity.

"In its previous conclusion the Committee asked whether Section 40 of the Child Protection Act required that corporal punishment was indeed prohibited in schools. It notes from the report that Section 44 of the Basic Schools and Upper Secondary Schools Act provides that the schools have to ensure the mental and physical safety and health protection of the student while he or she is at school, which involves protection against corporal punishment.

"The Committee notes from the above mentioned source that there is no explicit prohibition of corporal punishment in schools, but it is considered unlawful under article 40.1 of the Child Protection Act, which states 'Instruction shall not involve physical violence or mental abuse', and the Basic Schools and Upper Secondary Schools Act (1993) which obligates the school to guarantee the student’s mental and physical security and the protection of his/her health.

"The Committee considers that despite the provisions in the legislation relating to protection of children from ill treatment, there is no explicit prohibition of corporal punishment in schools, thus amounting to a violation of the Charter.

"The Committee takes note of various initiatives, including training events which were implemented with a view to preventing the abuse of children.…

"The Committee concludes that the situation in Estonia is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment is not explicitly prohibited in schools and in the home."

Finland

(January 2012, Conclusions 2011)

"The Committee notes that the situation which it has previously considered to be in conformity with the Charter has not changed."

France

(January 2012, Conclusions 2011)

"In its previous conclusion (Conclusions 2005) the Committee held that the situation was not in conformity with the Charter as all forms of corporal punishment of children were not prohibited. In this connection the Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) 25, §78) that there is no specific prohibition of corporal punishment but under the Criminal Code any act of violence is prohibited. The French authorities consider that there is no need for further legislation.

"In its previous conclusion the Committee asked what were the implications of the 2000 judicial ruling which stated that corporal punishment which is repetitive and not educational is not covered by the ‘right to correction’ for teachers and for parents. According to the report some judicial decisions in fact acknowledged the use of ‘right of correction’ by parents, teachers and educators, provided that it is harmless, moderate (spank, clothes seized, ears and hair pulled) and aims at maintaining school order and discipline. However, if the objective is to humiliate the student, if the correction causes physical damage or if it is too degrading, courts tend to convict the adult.

"The Committee notes from another source that a survey by the Union of Families in Europe (UFE) of 2,000 grandparents, parents and children found that 96% of children have been smacked; 84% of grandparents and 87% of parents have administered the corporal punishment. One in ten parents admitted to punishing their children with a ‘martinet’ (a small whip); 30% of children said they had been punished with a martinet. Corporal punishment is lawful in alternative care settings under the customary ‘right of correction’. In 2003 the Court of Cassation confirmed that nannies and babysitters have this right.

"According to the report a draft law to include the prohibition of corporal punishment, including spanking, in the Civil Code has been brought to the National Assembly in 2010. The Committee wishes to be informed about the outcome.

"The Committee recalls that to comply with Article 17 with respect to the corporal punishment of children, States’ domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, States must act with due diligence to ensure that such violence is eliminated in practice.

"The Committee holds that there has been no change to the situation which it has previously found not to be in conformity with the Charter. Therefore it reiterates its previous finding of non-conformity on this ground.…

"The Committee concludes that the situation in France is not in conformity with Article 17§1 of the Charter on the grounds that:

- all forms of corporal punishment of children are not prohibited…."

Georgia

(January 2012, Conclusions 2011)

"The Committee recalls that under Article 17 of the Charter States' domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. There will be no sufficient prohibition in law unless a state can demonstrate that legislation is interpreted as prohibiting corporal punishment and effectively applied as such.

"The Committee notes from another source2 that corporal punishment is lawful in the home. Provisions against violence and abuse in the Civil Code (1997), the Code of Administrative Offences, the Criminal Code (1999), the Law on Education (1997), the Law on the Elimination of Domestic Violence (2006) and the Constitution (1995) are not interpreted as prohibiting corporal punishment of children.

"The Committee considers that the situation is not in conformity with the Charter.

"The Committee concludes that the situation in Georgia is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment of children is not explicitly prohibited in the home."

Germany

(January 2012, Conclusions 2011)

"The Committee notes that there have been no changes to the situation which it has previously found to be in conformity with the Charter."

Greece

(January 2012, Conclusions 2011)

"The Committee notes from another source that Section 4 of Law 3500/2006 on Combating Domestic Violence (in force since 2007) states that physical violence against children as a disciplinary measure in the context of their upbringing brings the consequences of Article 1532 of the Civil Code, which addresses abuse of parental authority.

"According to the same source, the prohibition followed a finding in 2004 by the European Committee of Social Rights under the collective complaints procedure of the European Social Charter that Greece was in violation of Article 17 of the Charter because of the absence of an explicit prohibition in law of corporal punishment of children within the family, in secondary schools and in other institutions and forms of childcare. Following the decision of the European Committee of Social Rights legislation was introduced to explicitly prohibit corporal punishment in secondary schools (Section 21 of Law No. 3328/2005). Section 4 of Law 3500/2006 on Combating Intra-family Violence also applies in alternative care settings.

"Follow up to the Complaint No 17/2003- World Organisation against Torture (OMCT) v. Greece  

"As noted above, in its decision on the merits of 7 December 2004 of the Complaint No 17/2003 the Committee held that Greece violated Article 17 of the Charter as the Greek legislation did not prohibit all forms of corporal punishment on children within the family, in secondary schools and in other institutions and forms of care for children.

"In its previous conclusion the Committee took note of the measures announced by the Greek Government at the 924th meeting of the Ministers’ Deputies of the Council of Europe. As a follow up to these measures, the Committee notes from the report the entry into force of Law 3500/2006, which explicitly prohibits corporal punishment in the home as well as Law 3328/3005 which prohibits any kind of physical punishment of students. The Committee also takes note of various measures taken with a view to implementing this legislative framework.

"The Committee considers that with these legislative amendments the situation has been brought into conformity with the Charter on this point."

Iceland

(January 2012, Conclusions 2011)

"The Committee notes from the report that Act No 52/2009 which amended the Child Protection Act No 80/2002 and completely removed any uncertainty as to the complete illegality of abusing children or employing other degrading conduct.

"The Committee notes from another source that corporal punishment is prohibited in the home, in institutions and in schools."

Ireland

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee noted that by the common law immunity parents and other persons in loco parentis could use reasonable and moderate chastisement in the correction of their children. It asked whether the Government intended to remove this immunity and prohibit all forms of corporal punishment of children.

"In this connection it notes from the report that a prohibition in legislation of corporal punishment within the family has not been brought forward to date. It is the Government’s view that there is a balance to be found in trying to dissuade parents from using physical chastisement, supporting them in effective parenting versus criminalising parents who smack their children.

"The Committee notes from the report of the Commissioner that while corporal punishment in Ireland is prohibited for children in detention and schools as well as all places where a child is in public care, and violence against children is prohibited under the Children Act 2001, parents can still use chastisement under common law. The Committee notes from another source that corporal punishment is lawful in the home. The common law right to use ‘reasonable and moderate chastisement’ in disciplining children was confirmed in Section 37 of the Children Act (1908). The Children Act (2001) repealed Section 37, but removal of the common law defence requires an explicit provision in addition to this repeal. The Government has given a long term commitment to prohibition, but has given no indication of timing.

"In its decision in complaint World Organisation against Torture (OMCT) v. Ireland Complaint No 18/2003, decision on the merits of 7 December 2004 the Committee observed that the corporal punishment of children within the home was permitted in Ireland by virtue of the existence of the common law defence of reasonable chastisement. Although the criminal law protected children from very serious violence within the home, it remained the fact that certain forms of violence are permitted. The Committee therefore held that the situation was in violation of Article 17 of the Charter.

"The Committee considers that the situation has not been remedied. Therefore it reiterates it finding of non-conformity on the ground that corporal punishment is not explicitly prohibited in the home.

"The Committee concludes that the situation in Ireland is not in conformity with Article 17§1 of the Charter on the grounds that: …

- corporal punishment of children is not explicitly prohibited in the home."

Italy

(January 2012, Conclusions 2011)

"The Committee notes that there have been no changes to the situation which it has previously found to be in conformity. In this context it recalls that in World Organisation against Torture (OMCT) v. Italy, Complaint No. 19/2003, decision on the merits of 7 December 2004, it held that ‘it is apparent from Judgement No. 4909 of the Court of Cassation of 16 May 1996 (...), that the Court explicitly and conclusively removed any ambiguity concerning the lawfulness of the use of any degree of violence against children by any person, and even in circumstances traditionally regarded as justifying such conduct’ (OMCT v. Italy, § 46). In its previous conclusion (Conclusions 2007) the Committee asked whether the 1996 ruling was still good law.

"The Committee notes from another source that the law confirms the right to correction (‘jus corrigenda’). The 1996 Court of Cassation ruling states that this cannot be used to defend the use of corporal punishment but this has not been confirmed in legislation. According to the same source, the near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. The ‘right to correction’ should thus be explicitly repealed and prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have parental authority. Legislation should explicitly prohibit corporal punishment in all education settings, public and private, all institutions accommodating children in conflict with the law, and all alternative care settings.

"The Committee asks whether there are any plans to make legislative amendments following the 1996 ruling that would explicitly ban corporal punishment in all settings, such as home, schools and institutions.…

"Pending receipt of the information requested, the Committee defers its conclusion."

Latvia

(January 2012, Conclusions 2011)

"The Committee notes that the situation which it has previously found to be in conformity on this point has not changed. It notes from another source1 that while regional inspectors are mandated to investigate cases of corporal punishment, the sanctions they impose may not always be adequate, and that it is difficult to suspend or dismiss the offenders. The Committee asks the next report to provide explanation.…

"Pending receipt of the information requested, the Committee concludes that the situation in Latvia is in conformity with Article 17 of the Charter of 1961."

Lithuania

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee considered that the situation in Lithuania was not in conformity with Article 17§1 of the Charter since there was no prohibition in legislation of corporal punishment within the family. It recalls that the CRC has recommended that Lithuania explicitly prohibit corporal punishment in the family and implement existing prohibitions (2006 Concluding Observations). The Committee also enquired whether corporal punishment was prohibited in schools and institutions.

"The Committee notes that the situation has not been remedied. Section 49(1) of the Act on the Fundamentals of Protection of the Rights of the Child (1996) states: 'Parents and other legal representatives of the child may appropriately, according to their judgment, discipline the child, for avoiding to carry out his duties and for disciplinary infractions, with the exception of physical and mental torture, other cruel behaviour and the humiliation of the child’s honour and dignity.'

"However, the Committee notes from another source that provisions against violence and abuse in this Law as well as in the Criminal Code (2000), the Constitution (1992), the Civil Code (2000), and the Code of Administrative Offences (2002) are not interpreted as prohibiting all corporal punishment in childrearing.

"As regards corporal punishment in schools, the Committee notes from the report that it is considered unlawful, but there is no explicit prohibition. Section 25 of the Act on Education (1991) states that ‘parents, guardians, and teachers who do not carry out their responsibilities, or who cause physical, psychological, or moral harm to their pupils, shall be accountable in accordance with the procedures established by law’. Section 49(2) of the Act on the Fundamentals of Protection of the Rights of the Child states: ‘Disciplinary and educative enforcement measures: criticism, reprimand, severe reprimand, appropriate evaluation of behaviour and other enforcement means, established by laws, may be applied to a child for violations of internal order regulations of teaching and educative (care) institutions.’

"The Committee further notes from the above-mentioned source that there is no explicit prohibition of corporal punishment in alternative care settings. It is considered unlawful as a disciplinary measure in penal institutions, but there is no explicit prohibition in law. Corporal punishment is unlawful as a sentence for a crime.

"The Committee recalls that according to its case law, to comply with Article 17 with respect to the corporal punishment of children, states' domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.

“The Committee therefore considers that the situation in Lithuania is not in conformity with Article 17§1 since corporal punishment is not explicitly prohibited in the home, in schools and in other institutions.…

“The Committee considers that the situation in Lithuania is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment is not explicitly prohibited in the home, in schools and in institutions."

Luxembourg

(January 2012, Conclusions 2011)

"In its previous conclusion the Committee asked whether legislation prohibited all forms of corporal punishment of children in schools, in institutions, in the home and elsewhere. In this regard it notes from another source that corporal punishment is prohibited in the home. Article 2 of the Law on Children and the Family (2008) prohibits physical violence and inhuman and degrading treatment within families and educative communities and this is interpreted as prohibiting all corporal punishment, however light, in the home. The right of paternal punishment in the Civil Code was abolished in 1939.

"According to the same source, corporal punishment has been prohibited in schools since 1845. Ministerial regulations of 24 September 1981 establish directives on internal order and discipline in secondary schools and technical secondary schools and do not allow for corporal punishment. The National Education Code (2004) explicitly prohibits corporal punishment (article 9). Corporal punishment is prohibited in all alternative care settings under the Law on Children and the Family."

Malta

(January 2012, Conclusions 2011)

"The Committee notes from another source that corporal punishment is lawful in the home. In response to recommendations made during the Universal Periodic Review in 2009, the Government stated that corporal punishment is not permitted under Maltese law (16 September 2009, A/HRC/12/7/Add.1/Rev.1, Report of the Working Group on the Universal Periodic Review: Malta, Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review). However, ‘reasonable chastisement’ is permitted in common law. The Criminal Code (1854) states that ‘lawful correction’ is not a permissible defence for wilful homicide (article 229) and makes it an offence for a person who ‘being authorised to correct any other person, exceeds the bounds of moderation’ (article 339). Article 154 of the Civil Code (1870) states that a parent may be deprived of the rights of parental authority ‘if the parent, exceeding the bounds of reasonable chastisement, ill-treats the child, or neglects his education’. Provisions against violence and abuse in the Criminal Code and the Domestic Violence Act (2006) are not interpreted as prohibiting corporal punishment in childrearing.

"The Committee considers that since common law permits ‘reasonable chastisement’ by parents, the situation remains not to be in conformity with the Charter on this point.

"The Committee takes note of the establishment of the Office of the Commissioner for Children as an independent body charged with promoting and advocating for the rights and interests of children. The Commissioner may carry out, or commission a child impact assessment for any proposal or decision concerning a policy which may affect children. The Commissioner raises the office’s principal concerns in its annual report. The Committee would like to be informed of any concerns raised by the Commissioner relating to the issues covered by this provision i.e. corporal punishment, children in institutions and in foster care and young offenders.

"The Committee concludes that the situation in Malta is not in conformity with Article 17§1 of the Charter on the grounds that : …

- not all forms of corporal punishment are prohibited…."

Netherlands

(January 2012, Conclusions 2011)

"In its previous conclusion (Conclusions XVII-2) the Committee held that the situation in the Netherlands was not in conformity with Article 17 of the Charter as all forms of violence against children were not prohibited. In this connection it notes from the report that on 25 April 2007 an amendment to the Civil Code prohibiting the use of all forms of violence, including for educational purposes, entered into force, which explicitly imposes a duty on parents to refrain from using any form of mental or physical violence in raising their children. The Committee notes from another source that following this amendment, corporal punishment is as well prohibited in alternative care settings. 

"The Committee notes that the situation has been brought into conformity in this regard."

Poland

(January 2012, Conclusions 2011)

"In reply to its previous question, the Committee notes from the report that corporal punishment is prohibited in private schools through Chapter 8 of the Act of 7 September 1991 on Education System.

"In its previous conclusion the Committee held that the situation in Poland was not in conformity with the Charter as corporal punishment was not explicitly prohibited in the home. In this regard it notes from another source1 that corporal punishment is now prohibited in the home. Article 2 of the Act of 6 May 2010 'On the Prevention of Family Violence' amends the Family Code (1964) by inserting a new article 96 which prohibits all corporal punishment in childrearing: 'persons exercising parental care, care or alternative care over a minor are forbidden to use corporal punishment, inflict psychological suffering and use any other forms of child humiliation'.

"The Committee considers that these legislative amendments have brought the situation into conformity with the Charter."

Romania

(January 2012, Conclusions 2011)

"In its previous conclusion (Conclusions 2005) the Committee held that the situation was not in conformity with the Charter as corporal punishment within the family was not prohibited. It now notes from the report of the Governmental Committee of the Social Charter to the Committee of Ministers (TS-G (2005) 25) that new legislation was enacted to prevent and combat domestic violence. It notes from another source that corporal punishment is now prohibited in the home.

"Section 28 of Act No. 272/2004 on the Protection and Promotion of the Rights of the Child, promulgated through Decree No. 481/2004 (in force in 2005), provides that a child has the right to be shown respect for his or her personality and individuality and may not be made subject to physical punishment or to other humiliating or degrading treatment. Besides, disciplinary measures concerning the child can only be taken in accordance with the child’s dignity, and under no circumstances are physical punishments allowed, or punishments which relate to the child’s physical and mental development or which may affect the child’s emotional status.

"The Committee notes that the situation has thus been brought into conformity."

Slovakia

(January 2012, Conclusions 2011)

"The Committee previously concluded (Conclusions XVI-2) that the situation in the Slovak Republic was not in conformity with Article 17 of the Charter, as the corporal punishment of children was not prohibited.

"The Committee notes from the CRC Concluding Observations that corporal punishment in schools, alternative care contexts, and the penal system is unlawful and notes that the new Penal Code protects children from physical and psychological violence, insults, abuse, neglect and mistreatment without referring explicitly to corporal punishment.

"According to the report, Act No. 305/2005 Coll. on Social-Legal Protection of Children and Social Guardianship, as amended by Act No. 27/2009, forbids the use any form of corporal punishment of the child and other cruel or degrading forms of treatment and forms of chastisement of the child, which cause or may cause the child the physical or mental harm. However, the Global Imitative to End All Corporal Punishment of Children2 have established that this is interpreted as providing for state intervention only when corporal punishment reaches a certain degree of severity and ‘light’ physical punishment by parents is not covered by the new legislation. Provisions against violence and abuse in the Penal Code (2005), the Civil Code (2002), the Family Act and the Constitution (1992) are not interpreted as prohibiting all corporal punishment in childrearing.

"Consequently, the Committee concludes that the situation in the Slovak Republic is not in conformity with Article 17§1 of the Charter, as all forms of the corporal punishment of children in the home are not explicitly prohibited.

"The Committee concludes that the situation in the Slovak Republic is not in conformity with Article 17§1 of the Charter on the grounds that:

- all forms of corporal punishment of children are not explicitly prohibited in the home…."

Spain

(January 2012, Conclusions 2011)

"In its previous conclusion (Conclusions 2005) the Committee held that the situation in Spain was not in conformity with the Charter as corporal punishment was not prohibited in the home. The Committee notes that the report does not provide any information on this point.

"However, the Committee notes from another source that corporal punishment is now prohibited in the home. The First Schedule to Law No. 54/2007 on International Adoption amended the Civil Code to remove the ‘right’ of parents and guardians to use ‘reasonable and moderate’ forms of ‘correction’ from Articles 154 and 268 of the Civil Code. These Articles of the Code now state that parents/guardians must exercise their authority with respect for the child’s physical and psychological integrity. The explanatory memorandum to the law clarifies that the purpose of the amendment is to address the concerns of the UN Committee on the Rights of the Child that the ‘power to correct’ breaches Article 19 of the Convention on the Rights of the Child.

"The Committee considers that the amendments have brought the situation into conformity with the Charter."

Turkey

(January 2012, Conclusions 2011)

“In its previous conclusion (Conclusions XVII-2) the Committee held that the situation was not in conformity with the Charter as corporal punishment in the home was not prohibited. It notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2005) 24, §223) that the Criminal Code was replaced by a new Criminal Code, which entered into force on 1 June, 2005. Under Article 232, paragraph 1 of the new Code, under the heading “unfair treatment”, it is stipulated that any person mistreating any of the persons living in the same dwelling with him/her, shall be sentenced to a term of imprisonment ranging from two months to one year. This article also covers the children in the home. In its Article 232, paragraph 2, the new Criminal Code stipulates that a person who misuses his/her power of discipline on a person who is under his/her authority or who has been held responsible for the purpose of his/her raising, protecting or teaching him/her a profession or an art, shall be held liable for a term of imprisonment up to one year. According to the report of the Governmental Committee, this regulation shows the limits of his/her disciplinary authority and is of   the nature of prohibiting corporal punishment in the home.

“The Committee however notes from another source that corporal punishment is lawful in the home. In 2002, the Civil Code was amended to remove parents’ ‘right of correction’, but the new Criminal Code recognizes the concept of ‘disciplinary power’ (Article 232). Provisions against violence and abuse in the Criminal Code, the Protection of the Family Act and the Child Protection Act (2005) are not interpreted as prohibiting all corporal punishment in childrearing.

“The Committee considers that the new Criminal Code does not explicitly prohibit all forms of corporal punishment of children in the home. Therefore, it holds that the situation which it has previously found not to be in conformity on this point has not changed.

“According to the above-mentioned source, corporal punishment has been considered unlawful in schools since 1923, but there is no explicit prohibition and there has been some controversy as to its legal status. Act No. 1702 punishes ill-treatment and beating (articles 20 and 22). According to the representative of the Turkish Government (TS-G (2005) 24, §224), this Law is indeed the exact law which prohibits the corporal punishment of children in schools. According to the same source, Promotion, Appreciation and Punishment for Primary School Teachers Act No. 4357 (Section 7), the Promotion and Punishment for Secondary School Teachers Act (Sections 20-22 and 27) and State Personnel Act No. 657 provide for punitive measures against teachers who use physical or psychological violence against children. However, in April 2008, an investigation by the Education Ministry into the use of corporal punishment by a school principal reportedly concluded that corporal punishment has an educational value. The investigator reportedly cited an Administrative Supreme Court ruling from 1978 which supported corporal punishment by teachers, but not a 2005 ruling against it. The Committee asks the Government to provide explanation and in the meantime it reserves its position on this point.

“The Committee recalls that according to its case law, to comply with Article 17 with respect to the corporal punishment of children, states’ domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.

“The Committee concludes that the situation in Turkey is not in conformity with Article 17§1 of the Charter on the grounds that:

there is no explicit prohibition of corporal punishment in the home….”

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