Resolution CM/ResChS(2015)11: Association for the Protection of All Children (APPROACH) Ltd v. Czech Republic, Complaint No. 96/2013

Resolution CM/ResChS(2015)11
Association for the Protection of All Children (APPROACH) Ltd v. Czech Republic,
Complaint No. 96/2013

(Adopted by the Committee of Ministers on 17 June 2015 at the 1231st meeting of the Ministers’ Deputies)

The Committee of Ministers,

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 4 February 2013 by Association for the Protection of All Children (APPROACH) Ltd against the Czech Republic;

Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded unanimously:

– that there is a violation of Article 17 § 1 of the Charter

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. Reference is made, in particular, in this respect to the General Comment Nos. 8 and 13 of the Committee on the Rights of the Child.

Most recently, the following interpretation of Article 17 of the Charter as regards the corporal punishment of children was made in the decision 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 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 provisions of the domestic law referred to in the context of this complaint prohibit serious acts of violence against children and 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 revised legislation may be read as permitting corporal punishment for educational reasons, contrary to the Charter.

Nothing in the legislation or domestic case law indicates that all corporal punishment would be automatically prohibited. The government does not contest this. On the contrary, bodily harm needs to attain a specific threshold of gravity before it amounts to corporal punishment, and physical punishment is allowed as long as it does not reach the prohibited level of intensity.

Having regard to the information communicated by the Czech delegation on 31 March 2015,

1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights (see Appendix to this resolution);

2. looks forward to the Czech Republic reporting, at the time of the submission of the next report concerning the relevant provision of the Revised European Social Charter, on progress made.

Appendix to the Resolution CM/ResChS(2015)11

Address by the Representative of the Czech Republic at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 31 March 2015 – Association for the Protection of All Children (APPROACH) Ltd v. the Czech Republic, Complaint No. 96/2013

The Government of the Czech Republic (hereinafter referred to as “the government”) has received the decision of the European Committee of Social Rights (hereinafter referred to as “the Committee”) of 20 January 2015, which reached the conclusion that the Czech Republic violates Article 17 of the European Social Charter of 1961 (hereinafter referred to as “1961 Charter”) on the grounds that there is no explicit and effective prohibition of all corporal punishment of children in Czech legislation.

The government has always perceived the outstanding importance of social and economic rights and the need to advocate their full use and enjoyment by all human beings, in particular those most vulnerable. The issue of combating violence against children is one of the fundamental priorities of the government.

The Czech Republic sees the collective complaints procedure as an important tool for more effective safeguarding of social and economic rights in the Council of Europe member States and the Czech Republic takes seriously its commitments arising from the European Social Charter and makes every effort to guarantee full access to rights to all the citizens of the Czech Republic as well as the other Contracted Parties of the Charter.

However, with regards to Article 17 of the 1961 Charter, the government is confident that it does not include an obligation on the State Parties explicitly to prohibit all forms of corporal punishment of children in the national legislation. This firm opinion is supported, among other arguments, by the Explanatory Report to the European Social Charter (revised), according to which Article 17 of the 1961 Charter concentrates in particular on the protection of rights at work and rights related to work, contrary to the revised Charter. The text of the Explanatory Report stipulates literally: “Whereas the general protection of children in the Charter is contained in Article 7, which refers almost exclusively to the protection of children at work, Article 17 of the Revised Charter offers protection for children and young persons outside the context of work and addresses the special needs arising from their vulnerability”.

The government has already in the past referred to the extensive interpretation adopted by the Committee in Article 17, which has led to the Czech Republic being requested to fulfil its obligations arising from instruments which were not binding for it. The government repeatedly pointed out that the Czech Republic is not a Contracting Party to the revised Charter, where the requirement for the protection of children and young persons against negligence, violence or exploitation is stipulated. The government maintains its position that such an extensive interpretation of the 1961 Charter goes far beyond the original contractual obligation, leads to uncertainty about the true subject matter of the international law commitments entered into by a member State in good faith and on a voluntary basis and is not compatible with fundamental principles for the interpretation of international treaties in the frame of international public law.

In connection with the objection just expressed, it should be highlighted that this relates only to the legal issues in the matter. In practice, the government has been dealing with the protection of children, including the issue of corporal punishment, intensely, in the long term and with due care, both on the national and international levels. Due to its efforts, the government believes that the existing Czech legislation provides for only such educational methods which do not allow the endangering of the child’s dignity, physical health or mental or emotional development and offer a sufficiently broad and adequate scope for the effective protection of children and youth.

The government is convinced that if the protection of children is to be comprehensive and efficient, it is not sufficient to prohibit corporal punishment only, as the protection of children against both corporal and mental forms of punishment is needed. This approach is pursued by the Czech Republic in the long term, and such protection is fully guaranteed through the comprehensive wording of the prohibition of undignified treatment, followed by legal regulations stipulating penalties for such behaviour.

The government has submitted to the Committee the detailed position, including evidence concerning prevention, legislation in force, practise and activities adopted with regards to the protection of children against corporal and mental punishment, even if due to negligence. It included also the Supreme Court decisions and information on prepared changes of law aiming at strengthening the rights of children. The government has also established that national legislation protects children against violence at all levels and strongly rejects the allegation of widespread tolerance of corporal punishment.

Moreover, the government continues to raise awareness in society in relation to the topic of violence against children. Also, a bill is currently being prepared by the Ministry of Labour and Social Affairs providing for support to vulnerable families, foster care and the system of children protection. This legislative proposal, scheduled to be submitted to the government in June 2015, will set out the principal activities carried out by the authorities in the field of the protection of the rights of children and rights of persons concerned, in particular with regard to the Convention on the Rights of the Child, General Comments of the Committee on the Rights of the Child, conventions and strategic materials of the Council of Europe and recommendations of the Parliamentary Assembly and the Committee of Ministers. It will also stipulate the rights and obligations of institutional care facilities and the rights of children placed in residential care.

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