European Committee of Social Rights, 2015

Observations/decisions on corporal punishment in the European Committee of Social Rights' conclusions on states examined in 2015

Andorra

(January 2016, Conclusions 2015)

“In its previous conclusion the Committee found that corporal punishment of children was not explicitly prohibited in the home, in schools and in institutions.

“According to the report, corporal punishment of minors is explicitly prohibited in the home, as provided in Article 114 of the Penal Code  which concerns abuse in the home. The report states that the Penal Code in this respect is totally clear and prohibits all forms of physical or psychological violence against people in general, including child abuse and acts causing bodily harm.

“However, the report further states that several international organisations have repeatedly reported that the legislation of Andorra does not expressly prohibit corporal punishment (especially of children), despite the efforts to explain that the conduct constituting a criminal offense under Andorran Penal Code which prohibits any kind of bad bodily treatment (in all environments, institutional, family, school, professional, etc.), includes corporal punishment.

“The Committee notes from another source (Global Initiative to End Corporal Punishment of Children) that the law reform has been achieved. Corporal punishment is unlawful in all settings, including the home.

“In December 2014, Article 476 of the Penal Code was amended to clarify that it applies to corporal punishment, so that it now states: “Whoever mistreats mildly or harms physically, a person, shall be punished by imprisonment or a fine. If the mistreatment consists of a corporal punishment, a sentence of imprisonment shall be imposed.”

“Corporal punishment is therefore now unlawful in all alternative care settings and in the home under Article 476 of the Penal Code 2005, as amended in 2014.

“The Committee notes that with these legislative amendments the situation has been brought into conformity, but outside the reference period. Accordingly, the Committee considers that during the reference period the situation was not in conformity with the Charter as corporal punishment was not prohibited in the home in schools and in institutions.”

“The Committee concludes that during the reference period the situation in Andorra was not in conformity with Article 17§1 of the Charter on the ground that corporal punishment was not prohibited in the home in schools and in institutions.”

Armenia

(January 2016, Conclusions 2015)

“In its previous conclusion the Committee held that the situation was not in conformity with the Charter as corporal punishment was not explicitly prohibited in the home.

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that prohibition is still to be achieved in the home, alternative care settings and schools. There is no defence for the use of corporal punishment enshrined in legislation but there is no explicit prohibition. In theory, the prohibition of cruelty, violence and humiliation in childrearing in Article 53 of the Family Code 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.

“The Committee notes from the report of the Governmental Committee to the Committee of Ministers (TS-G (2011)1, §377) that in accordance with Section 9 of the Law on the Protection of the Rights of the Child, each child had a right to protection against any type of violence and any person including the child’s legal representative were forbidden to exercise any violence against the child or any punishment humiliating the child’s dignity. An express prohibition of corporal punishment has been included in the new draft Law on Domestic Violence.

“The Committee notes from the report that for the purpose of ensuring the compliance of the legislation with the Revised European Social Charter, as well as having regard to the priority of protection of interests of a child, a provision has been introduced to the Family Code on excluding beating as a means of child upbringing.

“In this connection, the Committee notes from the Global Initiative to End Corporal Punishment of Children that in 2015, the Government accepted a recommendation to prohibit corporal punishment in all settings made during the Universal Periodic Review of Armenia and confirmed that prohibition would be included in draft amendments to the Family Code. The Committee asks the next report to provide the information on the provision in the Family Code which explicitly prohibits all forms of corporal punishment of children in the home.

“The Committee notes that during the reference period the situation which it has previously found not to be in conformity with the Charter has not changed. The Committee reiterates its previous finding of non-conformity on the ground that corporal punishment is not prohibited in the home.”

“The Committee concludes that the situation in Armenia is not in conformity with Article 17§1 of the Charter on the grounds that: … not all forms of corporal punishment of children are prohibited in the home.”

Austria

(January 2016, Conclusions 2015)

“The Committee notes that corporal punishment is prohibited in all settings, including the home.”

Bosnia and Herzegovina

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee considered that there is no explicit prohibition of corporal punishment in the home in the Federation of Bosnia and Herzegovina and the Brčko District.

“The Committee notes from the Global Initiative to End Corporal Punishment that the law reform has not yet fully prohibited corporal punishment in the home throughout Bosnia and Herzegovina. Corporal punishment is unlawful in schools.

“The Committee takes note of the legislation in all entities prohibiting domestic violence against children. Nevertheless, the Committee notes that the Family Law of the Federation of Bosnia and Herzegovina and the Brčko District do not prohibit all forms of corporal punishment.

“As regards the Republika Srpska, the Law on Protection against Domestic Violence in RS prohibits different forms of violence, such a physical, emotional or psychological violence. Physical violence is interpreted as behaviour involving physical force intended to cause certain, even smallest pain and/or discomfort, which leads to real or potential harm to the child.

“The Committee considers that corporal punishment is not explicitly prohibited in the Federation of Bosnia and Herzegovina and the Brčko District in the home. Therefore, the situation is not in conformity with the Charter.

“The Committee asks whether corporal punishment is prohibited in all entities in childcare institutions.”

“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 all forms of corporal punishment are not prohibited in the home in the Federation of Bosnia and Herzegovina and the Brčko District.”

Czech Republic

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions XIX-4 (2011)) the Committee found 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.

“In its decision on the merits of 12 December 2014 of Complaint No. 96/2013, Association for the Protection of All Children (APPROACH) v. the Czech Republic (§§ 49-51), the Committee noted that the provisions of the domestic law referred to in the context of this complaint prohibit serious acts of violence against children, and that national courts will sanction corporal punishment provided it reaches a specific threshold of gravity. However none of the legislation referred to by the Government sets out an express and comprehensive prohibition on all forms of corporal punishment of children that is likely to affect their physical integrity, dignity, development or psychological well-being.

“Furthermore, there is no clear and precise case-law prohibiting the practice of corporal punishment in comprehensive terms. The Committee observed in particular that also the revised legal provisions (Act No. 303/2013 Coll.) may be read as separating all forms of corporal punishment from the notion of permitted “educational measures”.

“The Committee likewise took note of the domestic case-law on corporal punishment (§ 34). It noted that there was nothing in the legislation that would allow it to conclude that all corporal punishment would be automatically prohibited. The Government did not contest this. On the contrary, it stated that bodily harm needed to attain a specific threshold of gravity before it amounted to corporal punishment, and that physical punishment was allowed as long as it did not reach the prohibited level of intensity.

“The report refers to Act No. 303/2013 Coll., amending certain acts in connection with the adoption of private-law recodification and provides that any person who uses inadequate educational means or restrictions against a child commits an offence, punishable in the form of a fine of up to CZK 50,000 (€ 1 821).

“The Committee considers that the situation which it has previously held to be in violation with the Charter has not changed. It reiterates its previous finding of non-conformity on the ground that all forms of corporal punishment are not prohibited in the home and in institutions.”

“The Committee concludes that the situation in the Czech Republic is not in conformity with Article 17 of the 1961 Charter on the ground that all forms of corporal punishment are not prohibited in the home and in institutions.”

Denmark

(January 2016, Conclusions 2015)

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

Estonia

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee held that the situation was not in conformity with the Charter as corporal punishment was not explicitly prohibited in the home and in schools.

“The Committee notes from the report that Section 24 (1) of the new Child Protection Act fully prohibits the abuse of children in all its manifestations and explicitely names corporal punishment as a form of abuse of a child and therefore prohibits it. As regards corporal punishment in schools, pursuant to Section 44 of the Basic Schools and Upper Secondary Schools Act schools must ensure the mental and physical security of students, which includes protection against corporal punishment. Teachers having utilised this form of ’educating’ have been prosecuted on the basis of Article 121 of the Penal Code.

“The Committee notes from another source (Global Initiative to end corporal punishment) that the law reform has been achieved. Corporal punishment is prohibited in all settings, including the home.

“The Committee considers that the situation has been brought into conformity.”

Georgia

(January 2016, Conclusions 2015)

“In its previous conclusion the Committee found that the situation was not in conformity with the Charter as corporal punishment of children was not explicitly prohibited in the home. The Committee notes from another source (Global Initiative to end Corporal Punishment of Children) that prohibition is still to be achieved in the home, alternative care settings and schools.

“According to the same source, in rejecting a recommendation to prohibit all corporal punishment made during the Universal Periodic Review of Georgia in 2011, the Government stated that existing legislation “provides for a blanket prohibition on all forms of corporal punishment, including directed against children” and “adequately protects children from any form of corporal punishment”, and that Georgia therefore “does not intend to amend the applicable legislation”.

“The Committee recalls that under Article 17 of the Charter, the prohibition of any form of corporal punishment is a measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland , decision on the merits of 2 December 2014, §§45-47).

“The Committee considers that in the absence of information regarding the specific legal basis for prohibition of all forms of corporal punishment in the home, in schools and in institutions, it considers that the situation is not in conformity with the Charter as it has not been established that such prohibition in the home, in schools and in institutions has a precise legislative basis.”

“The Committee concludes that the situation in Georgia is not in conformity with Article 17§1 of the Charter on the ground that it has not been established that the prohibition of all forms of corporal punishment in the home, in schools and in institutions has a precise legislative basis.”

Germany

(January 2016, Conclusions 2015)

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

Hungary

(January 2016, Conclusions 2015)

“The Committee notes that the situation which it has previously considered to be in conformity with the Charter has not changed. According to Global Initiative to End Corporal Punishment of Children, law reform has been achieved. Corporal punishment is prohibited in all settings, including the home.”

Iceland

(January 2016, Conclusions 2015)

“In interpreting Article 17 of the Charter, the Committee has held that the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 asks what measures are taken to eliminate corporal punishment in practice, for example, through information campaigns.”

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

Latvia

(January 2016, Conclusions 2015)

“The Committee notes from the Global Initiative to End Corporal Punishment that the law reform has been achieved. Corporal punishment is prohibited in all settings, including the home.”

Lithuania

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee found that the situation was not in conformity with the Charter as corporal punishment was not explicitly prohibited in the home, in schools and in institutions.

“According to the report, corporal punishment was set to be explicitly prohibited by a new law on Child Protection, to amend the Act on the Fundamentals of Protection of the Rights of the Child. The draft Law was under preparation and available online since summer 2012 for consultation of civil society. Section 45 of the draft Law provided an extensive definition of child protection from violence, stating that the child shall be educated, trained and disciplined without violence and with respect for dignity.

“However, according to the report, it was decided not to adopt a new law, but to amend the current Act.

“The amendment of the current Act on the Fundamentals of Protection of the Rights of the Child has been prepared, according to which Section 43 (2) will establish administrative or criminal liability for the demonstration of physical or mental violence against children. The amendment is approved by all relevant national institutions and, according to the report, will be presented to the Government and the Parliament for the adoption. The Committee wishes to be kept informed of these developments.

“In the meantime, the Committee notes from the Global Initiative to End Corporal Punishment of Children that prohibition is still to be achieved in the home, alternative care settings, day care, schools and penal institutions.

“The Committee considers that the situation which it has previously found not to be in conformity with the Charter has not changed. Prohibition of corporal punishment in the home, in schools and in institutions does not have a precise legal basis.”

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

Luxembourg

(January 2016, Conclusions 2015)

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that corporal punishment is prohibited in the home, in schools and in institutions.”

Malta

(January 2016, Conclusions 2015)

“In its previous conclusion the Committee found that the situation was not in conformity with the Charter as not all forms of corporal punishment were prohibited. In this regard it notes from the report that as of 2014 all forms of corporal punishment have been outlawed. Article 339 of the Criminal Code provides that it is a contravention for any person being authorised to correct any other person, to exceed the bounds of moderation, provided that, for the avoidance of any doubt, corporal punishment of any kind shall always be deemed to exceed the bounds of moderation.

“The Committee also notes from the Global Initiative to end corporal punishment that the law reform has been achieved. Corporal punishment is prohibited in all settings, including the home. Corporal punishment is unlawful in the home under a 2014 amendment to the Criminal Code. Corporal punishment is unlawful in alternative care settings under article 339 of the Criminal Code, as amended by the Criminal Code (Amendment No. 3) Act 2014. Corporal punishment is unlawful in schools under Article 339 of the Criminal Code as amended in 2014.

“The Committee considers that with the legislative amendments introduced in 2014 (outside the reference period) the situation has been brought into conformity with the Charter. However, the Committee considers that during the reference period the situation was not in conformity with the Charter as corporal punishment was not prohibited in the home in schools and in institutions.”

“The Committee concludes that during the reference period the situation in Malta was not in conformity with Article 17§1 of the Charter on the ground that corporal punishment was not prohibited in the home, in schools and in institutions.”

Montenegro

(January 2016, Conclusions 2015)

“The Committee recalls that under Article 17 of the Charter, the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland , decision on the merits of 2 December 2014, §§45-47).

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that corporal punishment in Montenegro is lawful in the home. There is no legal defence for its use enshrined in law and provisions against violence and abuse in the Criminal Code 2004, the Family Act 2007, the Charter on Human and Minority Rights and Civil Liberties 2003 and the Law on Family Violence Protection 2010 do not include explicit prohibition of all corporal punishment in childrearing.

“There is no explicit prohibition of corporal punishment in alternative care settings, where it is lawful as for parents.

“Corporal punishment is prohibited in schools according to Section 111 of the General Law on Education. The Law on Primary Education (art. 66) and the Law on High School (art. 49) do not include corporal punishment among permitted disciplinary measures.

“The Committee considers that the situation is not in conformity with the Charter as corporal punishment of children is not explicitly prohibited in the home and in institutions.”

“The Committee concludes that the situation in Montenegro is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment of children is not prohibited in the home and in institutions.”

Netherlands

(January 2016, Conclusions 2015)

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

Norway

(January 2016, Conclusions 2015)

“The Committee notes that the situation which it has previously found to be in conformity with the Charter has not changed.”

Poland

(January 2016, Conclusions 2015)

“The report states that a total ban on corporal punishment of children in all settings has been introduced. The situation accordingly remains in conformity with the 1961 Charter.”

Republic of Moldova

(January 2016, Conclusions 2015)

“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 of children in the home.

“The Committee notes from another source (Global Initiative to End Corporal Punishment of Children) that corporal punishment is prohibited in the home. In 2008, the Family Code (2001) was amended to establish the right of the child “to be protected against abuse, including corporal punishment by his parents or persons who replace them” (Article 53). Article 62 of the Code states that the methods chosen by parents in educating their children will exclude abusive behaviour, insults and ill-treatments of all types, discrimination, psychological and physical violence, corporal punishments.

“The Committee also notes that corporal punishment is prohibited in schools and in institutions.”

Romania

(January 2016, Conclusions 2015)

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that corporal punishment is prohibited in all settings- in the home, in schools and in institutions.»

Russian Federation

(January 2016, Conclusions 2015)

“The Committee recalls that under Article 17 of the Charter, the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland, decision on the merits of 2 December 2014, §§45-47).

“The Committee notes from the another source (Global Initiative to End Corporal Punishment, Russia) that Article 54 of the Family Code of 1995 provides for the protection of children’s human dignity by their parents and protection from abuse by parents (Articles 56 and 69). It states that parents have a right and duty to educate their children and must care for their children’s “health, physical, mental, spiritual and moral development” (Article 63) and that “methods of parenting should not include neglectful, cruel or degrading treatment, abuse or exploitation of children” (Article 65). The Criminal Code 1996 punishes intentional serious, less serious and minor harm to health (Artciles 111 to 115) and beating or other violent acts which cause physical pain.

“According to the same source, in 2010, the Ministry of Justice stated that these provisions in the Family and Criminal Codes amount to prohibition of corporal punishment of children. However, in the absence of an explicit prohibition it is not clear that they effectively prohibit all forms of physical punishment in childrearing.

“As regards children in institutions, according to the same source there is no explicit prohibition of corporal punishment (foster care, institutions, places of safety, emergency care, etc). Children are legally protected from some but not all physical punishment under the Family Code 1995 and Criminal Code 1996.

“As regards schools, section 34 of the Law on Education 2012 states that students have the right to respect for human dignity, protection from all forms of physical or mental violence, injury personality, the protection of life and health. Section 43(3) states that discipline in educational activities is provided on the basis of respect for human dignity of students and teachers and application of physical and mental violence to students is not allowed.

“The Committee considers that not all forms of corporal punishment are explicitly prohibited in the home and in institutions. Therefore, the situation is not in conformity with the Charter.”

“The Committee concludes that the situation in Russian Federation is not in conformity with Article 17§1 of the Charter on the ground that not all forms of corporal punishment are prohibited in the home and in institutions.”

Serbia

(January 2016, Conclusions 2015)

“The Committee recalls that under Article 17 of the Charter, the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2 (2001)). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland , decision on the merits of 2 December 2014, §§45-47).

“The Committee notes form the Global Initiative to End Corporal Punishment of Children that prohibition is still to be achieved in the home and in institutions.

“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. Section 72 of the Family Law 2005 states that 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. However, there is no explicit prohibition of all corporal punishment.

“There is no explicit prohibition of corporal punishment in alternative care settings, where it is lawful as for parents.

“As regards schools, corporal punishment was first explicitly prohibited in schools in Section 67 of the Law on Public Schools 1929. It is now unlawful under the Law on Secondary Schools 1992 and the Law on the Foundations of Education and Upbringing 2003/2009.

“The Committee considers that the situation is not in conformity with the Charter as corporal punishment is not prohibited in the home and in institutions.”

“The Committee concludes that the situation in Serbia is not in conformity with Article 17§1 of the Charter on the ground that corporal punishment is not prohibited in the home and in institutions.”

Slovakia

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee held that the situation was not in conformity with the Charter as all forms of corporal punishment were not explicitly prohibited in the home.

“The Committee notes from the report that the Ministerial Committee for Children stated that a cooperation between the Ministry of Labour, Social Affairs and Family and the Ministry of Justice was established to prepare an amendment of the Civil Code and the Penal Code to explicitly prohibit all forms of corporal punishment of children in the home.

“The Re-codification Commission has been invited by the Minister of Labour, Social Affairs and Family to prepare a draft amendment of the Civil Code and the Penal Code in this respect.

“The Committee further notes from the Global Initiative to End Corporal Punishment that the Family Act 1963 (amended 2002) does not explicitly prohibit corporal punishment. Rather, it authorises the use of “adequate” childrearing methods, stating in Article 31(2) that in exercising their parental rights and duties, parents “must rigorously protect the child’s interests, manage his or her behaviour and exercise a surveillance over him or her in accordance with the level of his or her development” and that they “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”.

“The Committee also notes from the National report submitted to the UN Human Rights Council Working Group on the Universal Periodic Review (Eighteenth session 27 January – 7 February 2014) that since 2009, the so-called zero tolerance of physical punishment of children has been introduced into legislation. It means that according to the Act on Social and Legal Protection of Children and on Social Care, it is prohibited to use any forms of physical punishment against children and other gross or degrading forms of treatment or punishment which cause or may cause physical or mental injury. Everybody has the obligation to report violations of children’s rights to the socio-legal protection authority. The ban of physical punishment in exercising parental rights and obligations is proposed to be included in the new Civil Code, which is under preparation.

“The Committee wishes to be informed of the follow up given to this legislative initiative.

“In the meantime, it considers 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 the ground that not all forms of corporal punishment are prohibited in the home.”

“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 are not prohibited in the home…”

Slovenia

(January 2016, Conclusions 2015)

“In its decision on the merits of 5 December 2014 of the Complaint No. 95/2013 Association for the Protection of All Children (APPROACH) Ltd v. Slovenia, §51,  the Committee noted that the provisions of the Family Violence Prevention Act and the Criminal Code prohibited serious acts of violence against children, and that national courts sanctioned corporal punishment provided it reaches a specific threshold of gravity. However, none of the legislation referred to by the Government set out an express and comprehensive prohibition on all forms of corporal punishment of children that is likely to affect their physical integrity, dignity, development or psychological well-being. Furthermore, there was nothing to establish that a clear prohibition of all corporal punishment of children had been set out in the case-law of national courts.

“The Committee notes in this regard from the report that the Slovenian Government is convinced that the national legislation in force protects children against violence, negligence or exploitation, as stipulated by Article 17 of the Charter. Corporal punishment of children is, according to the case law, one of the modes of committing the criminal offence of domestic violence.

“According to the report, the Government also believes that the explicit prohibition of corporal punishment in the national legislation alone does not and cannot provide children with adequate protection against violence. The system-wide regulation of the prevention of violence against children in Slovenia represents a much broader spectrum of the prohibition of violence against children, including a ban on corporal punishment, irrespective of the motive.

“The Committee further notes that at the request of international organisations (the United Nations, the Council of Europe), the Slovenian Government inserted an explicit ban on the corporal punishment of children in the proposed Family Code, which was adopted by the National Assembly on 16 June 2011. However, the Family Code was rejected at a referendum on 25 March 2012.

“The Committee considers that the situation which it has previously found not to be in conformity with the Charter has not changed. Therefore, the Committee reiterates the previous finding of non-conformity on the ground that not all forms of corporal punishment are prohibited in the home.

“The Committee concludes that the situation in Slovenia is not in conformity with Article 17§1 of the Charter on the ground that not all forms of corporal punishment are prohibited in the home.”

Spain

(January 2016, Conclusions 2015)

“The Committee notes that corporal punishment continues to be prohibited in all settings, including in the home.”

Sweden

(January 2016, Conclusions 2015)

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

TFYR Macedonia

(January 2016, Conclusions 2015)

“In its previous conclusion the Committee held that the situation was not in conformity with the Charter as corporal punishment was not prohibited in the home and in institutions.

“According to the report, the Child Protection Act foresees protection of children against any form of discrimination, sexual exploitation and sexual abuse, abduction, sale or trafficking, physical or psychological violence or inhuman treatment, exploitation and commercial exploitation.

“The Family Act regulates the protection of children from neglect, abuse and violence by establishing measures of protection and supervision over the parental rights as well as by the introduction of provisions on domestic violence.

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that Corporal punishment is unlawful in the home. Section 12(2) of the Child Protection Act of 2013 prohibits all forms of corporal punishment. Section 12(6) states that children are to be protected in all settings: the state and institutions are obliged to take all necessary measures to ensure the right of the children and prevent any form of discrimination or abuse regardless of the place where they are committed, the severity, intensity and duration.

“Corporal punishment is prohibited in alternative care settings (foster care, institutions, places of safety, emergency care, etc) under Section 12 of the Child Protection Act of 2013.

“The Committee recalls that under Article 17 of the Charter, the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 asks the next report to indicate the precise legal provisions and the case law which explicitly prohibit all forms of corporal punishment of children (including the mildest forms) in the home and in institutions. In the meantime, the Committee reserves its position on this issue.”

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

Turkey

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee found that the situation was not in conformity with the Charter as corporal punishment of children was not explicitly prohibited in the home.

“The Committee notes from the Global Initiative to End Corporal Punishment of Children that Turkey expressed its commitment to prohibiting all corporal punishment during the Universal Periodic Review of Turkey in 2010. However, prohibition is still to be achieved in the home, alternative care settings, day care and schools.

“According to the same source, legal recognition of parents’ right of correction was removed from the Civil Code in 2002, but the Criminal Code 2004 recognises a person’s disciplinary power arising from the right of tutoring of a person under his/her care or to whom he/she has obligation to raise, educate, care, protect or teach an occupation or art. Prohibition of corporal punishment should be enacted in relation to disciplinary measures in all alternative care settings (foster care, institutions, places of safety, emergency care, etc). Corporal punishment should be prohibited in all early childhood care (nurseries, crèches, kindergartens, preschools, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc). Prohibition of corporal punishment should be enacted in relation to all schools, public and private.

“According to the report, Article 232 of the Law No. 5237 provides that the persons should have particular discipline competences because of the duty to discipline and to educate the persons who they are obliged to raise, educate, look after, protect or teach a profession or a skill. Furthermore, the limits of authorisation of discipline were drawn, stating that the limit of authorisation of discipline can be used at a degree not leading to breakdown both physically and mentally or subjecting to any hazard.

“The Committee notes from the report that according to both the legislation as well as the Supreme Court case law, harsh warnings or punishments that are not educational, incompatible with affection and leaving physical and psychological marks on the child shall constitute an offense. The offender shall be punished under Article 232 of the Law No. 5237 if the action has made an impact on the sufferer requiring simple medical intervention.

“Therefore, according to the report, the aim of including the regulation in Article 267 of the Civil Law No. 743 and also in the Civil Law No. 4721 is to prohibit the bodily sanctions, particularly beating the child which prevent physical and psychological development of the child. The lawmaker preferred to make regulations enabling the enjoyment of the right to discipline and the right to education within the limitations instead of fully rejecting the authorisation of discipline.

“The Committee recalls that in interpreting Article 17 of the Charter, the Committee has held that the prohibition of any form of corporal punishment of children is an important measure for the education of the population. It is a measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 Charter contains comprehensive provisions protecting the fundamental rights and human dignity of children – that is persons aged under 18 (Defence for Children International v. the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, §§ 25-26). It enhances the European Convention on Human Rights in this regard. It also reflects the provisions of the United Nations Convention on the Rights of the Child, on which in particular Article 17 is based.

“The Committee has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland , decision on the merits of 2 December 2014, §§45-47).

“The Committee considers that the situation which it has previously found not to be in conformity with the Charter has not fully evolved towards the general and explicit prohibition of all forms of corporal punishment. Therefore, it reiterates its previous finding of non-conformity on the ground that not all forms of corporal punishment of children are prohibited in the home, in schools and in institutions.”

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

  • not all forms of corporal punishment are prohibited in the home, in schools and in institutions…”

UK

(January 2016, Conclusions 2015)

“In its previous conclusion (Conclusions 2011) the Committee found that the situation was not in conformity with the Charter as not all forms of corporal punishment were explicitly prohibited in the home.

“According to the report, the Government’s position is unchanged. The Government takes the view that it should not be a crime for parents to give their children a mild smack. The law in Northern Ireland on the physical punishment of children is based on the concept of ‘reasonable chastisement’. If a parent or adult smacks a child and is prosecuted, they can defend themselves in terms of reasonable chastisement but only if the harm is minor.

“In interpreting Article 17 of the Charter, the Committee has held that the prohibition of any form of corporal punishment of children is an important measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable form of corporal punishment and what is not (General Introduction to Conclusions XV-2). The Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal (Complaint No. 34/2006, decision on the merits of 5 December 2006; §§19-21):

“To comply with Article 17, states’ domestic law must prohibit and penalize 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 Charter contains comprehensive provisions protecting the fundamental rights and human dignity of children – that is persons aged under 18 (Defence for Children International v. the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, §§ 25-26). It enhances the European Convention on Human Rights in this regard. It also reflects the provisions of the United Nations Convention on the Rights of the Child, on which in particular Article 17 is based.

“The Committee has noted that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comments Nos. 8 and 13 of the Committee on the Rights of the Child (Complaint No 93/2013 Association for the Protection of All Children (APPROACH) v. Ireland , decision on the merits of 2 December 2014, §§45-47).

“The Committee considers 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 the ground that not all forms of corporal punishment of children are prohibited in the home.”

“The Committee concludes that the situation in United Kingdom is not in conformity with Article 17 of the 1961 Charter on the grounds that:

  • not all forms of corporal punishment are prohibited in the home…”

Ukraine

(January 2016, Conclusions 2015)

“The Committee notes from the Global Initiative to End Corporal Punishment that corporal punishment is prohibited in all settings – in the home, in schools and in institutions.”

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