European Committee of Social Rights: Turkey

2015

(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…”

Read more from 2015

2011

(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….”

Read more from 2011

2005

(March 2005, Conclusions XVII-2)

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

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

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

Read more from 2005

2001

(1 June 2001, Addendum to Conclusions XV-2, pages 271-274)

“The Turkish Penal and Civil Codes have provisions for the protection of children from physical and mental abuse, exploitation and other similar treatment by their parents. The Committee wishes to receive further information on these, especially national case law. In particular the Committee wishes to know whether legislation prohibits all forms of corporal punishment of children in the home, in institutions, in schools and elsewhere….”

Read more from 2001
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