European Committee of Social Rights: Malta

2015

(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.”

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2011

(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…."

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2005

(March 2005, Conclusions XVII-2)

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

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

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

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

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2001

(1 June 2001, Addendum to Conclusions XV-2, pages 125-127)

"The Committee asks whether legislation prohibits all forms of corporal punishment of children, in the home, in schools, in institutions, and elsewhere…."

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