3d assessment of follow-up: Association for the Protection of all Children Ltd. (APPROACH) v. Czech Republic, Complaint No. 96/2013, decision on the merits of 20 January 2015, Resolution ResChS(2015)11

3d assessment of follow-up: Association for the Protection of all Children Ltd. (APPROACH) v. Czech Republic, Complaint No. 96/2013, decision on the merits of 20 January 2015, Resolution ResChS(2015)11 Violation of Article … Decision of the Committee on the merits of the complaint

Resolution ResChS(2015)11

The Committee concluded that Article 17 of the 1961 Charter had been violated on the ground that not all forms of corporal punishment that is likely to affect the physical integrity, dignity, development or psychological well-being of children, were prohibited.

Information provided by the Government

In the report the Government indicates the latest changes in the legislation.

Firstly, it concerns the Act No. 250/2016 Coll., stipulating liability for misdemeanour and on proceedings concerning them which was adopted with effect from 1 July 2018. It defines a misdemeanor and determines an attempt to commit a misdemeanour.

Secondly, Act No. 251/2016 Coll., determines certain misdemeanours, effective as of 1 July 2017, with regard to protected interests such as health, personal rights and honour of an individual, interest in peaceful coexistence. Unlike the previous legislation, a misdemeanour was extended by other reasons of discrimination of selected groups of people (age and disability). To commit a misdemeanour, negligent fault is sufficient. Due to the principle of subsidiarity of criminal prosecution, an act will be considered as a misdemeanour on the condition that it is not a criminal offence under Section 146 (bodily harm), or Section 148 (negligent infliction of bodily injury) of Act No. 40/2009 Coll., Criminal Code, as amended.

The perpetrator of a misdemeanour may be any person who, by virtue of law, court decision or other decisive factors, is responsible for childcare, i.e. not only the parents, but also other persons responsible for child upbringing, school and pre-school staff, staff of institutional and protective education, staff for children requiring immediate help, etc.

Lastly, as of July 1, 2017, a misdemeanour committed by operators of facilities for children requiring immediate assistance under Act No. 359/1999 Coll., on social and legal protection of children, came into effect, and stipulates that the operator of the facility commits a misdemeanour if he/she does not follow the defined quality standards in the implementation of social and legal protection of children in childcare facilities requiring immediate assistance (Section 59g Subsection 1 k). A misdemeanour is punishable by a penalty of up to CZK 50, 000 (Section 59g, Subsection 2). The provision is supplemented by the wording of Section 59 Subsection 1 h), which states that a natural, legal or an entrepreneurial natural person commits a misdemeanour by applying inadequate educational means1 or restrictions to the child.

Furthermore, the prohibition on the use of inadequate means of education in the Czech legal order is explicitly defined in Act No. 247/2014 Coll., regulating the provision of child care, where Section 10 Subsection 2 determines: “It is forbidden to apply to a child any inadequate educational means or restrictions, or any educational means affecting the dignity of a child, or which in any way jeopardize the child’s health, physical, emotional, intellectual and moral development.”

The newly adopted legal regulations thus supplement the Act No. 109/2002 Coll., regulating the performance of institutional education or protective education in school facilities and on preventive educational care in school facilities and on change of other acts, by defining an explicit closed list of measures applicable in education (Section 21).

The scope of prosecution of corporal punishment remains in the criminal law in the full range:

criminal offence of bodily injury according to Article 146 of the Criminal Code,

negligent infliction of bodily injury (Article 148 of the Criminal Code), which in the qualified body implies a stricter punishment for the perpetrator who committed an offence to a child under the age of 15.

the crime of abuse battering a person entrusted to his/her care according to the provisions of Article 198 of the Criminal Code. Such behaviour is considered as maltreatment of entrusted person which is perceived by this person as harsh sufferings;

the criminal offence of battering a person in the same household under Article 199 of the Criminal Code.

Legal regulation in the area of criminal law affects effectively and comprehensively the crimes in the area of corporal punishment and is effectively enforced.

Prosecution of corporal punishment of children under civil legislation:

The rights and duties of parents (other persons who are in charge of the child’s education) to the child are governed in particular by Act No. 89/2012 Coll., Civil Code, as amended, in particular in the second part, which regulates the family law.

The Civil Code defines education and educational means in Section 884, “Educational means are by no means understood only as the negative measures (sanctions), and especially not as corporal punishment. Educational means should be understood primarily as means of activation and prevention.”

Special protection against domestic violence, which due to the high intensity of emotions among close family members is one of the most dangerous forms of aggression, is defined in Articles 751 to 753 of the Civil Code.

The court may, in accordance with Article 751-753, limit or prohibit the presence of the other spouse in the household for a specified period of time in order to prevent violence against the other partner or other members of the household up to six months, even repeatedly.

Act No. 99/1963 Coll., Code of Civil Procedure, in Article 76 a provides the child with procedural protection against corporal punishment and other negative conduct in the family and outside the family by means of a preliminary ruling by the court to place the endangered child into a suitable environment/facility or into foster care for a temporary period as necessary. A preliminary ruling can protect the interests of the child to the highest extend also in accordance with Article 76 b of Civil Procedure Code and can expel the abuser out of the common household and immediate neighborhood.

Finally, the report states that the Czech Republic is very attentive to the obligation resulting from Article 17 of the Charter. According to the authorities, although progress has been made to implement the decision previously taken by the Committee, further steps need to be taken to adapt the existing legal framework.

Assessment of the follow-up

The Committee notes the developments of Czech legislation aiming at strengthening the protection of children against all forms of violence.

The Committee considers that the legislative amendments in 2017 and 2018 are a step forward, but they do not constitute a total, clear and explicit prohibition of all forms of corporal punishment of children that are likely to harm their physical integrity, dignity, development or mental well-being. National legislation does not explicitly prohibit corporal punishment of children in the family home and of children in institutions. In its report the government does not dispute this situation.

The Committee recalls that it has already assessed the provisions of national law referred to in paragraph 26 and following in the context of the present complaint (see §§49 to 51 of the decision) and noted that they prohibit severe violence against children, and that national courts convict perpetrators of corporal punishment provided that they reach a certain threshold of seriousness.

The report cites no clear and precise case law that comprehensively prohibits the practice of corporal punishment. The Committee recalls that it has observed in particular that existing legislation could also be interpreted as distinguishing all forms of corporal punishment from the notion of “educational measures”, thus allowing corporal punishment for educational purposes, which is contrary to the Charter.

The Committee further notes that according to the latest report (April 2019) of the Global Initiative to End All Corporal Punishment of Children http://www.endcorpor alpunishment.org/wp-content/uploads/country-reports/CzechRepublic.pdf corporal punishment is still not prohibited in the family home, in alternative care settings, day-care centres and penal institutions. Moreover, in its Concluding observations published on 6 December 2019, the UN Human Rights Committee’ invited the Czech Republic to take practical steps, including through legislative measures where appropriate, to explicitly prohibit corporal punishment in all settings, including the home.

Legislation on violence and abuse are not interpreted as prohibiting all corporal punishment. However, it should be possible for courts to apply various legislation to clearly and explicitly prohibit all forms of corporal punishment. The Committee invites the authorities to keep it informed of any legislative and jurisprudential developments that would redress the violation found.

Meanwhile, the Committee therefore considers that the situation has not been brought into conformity with the 1961 Charter.

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