Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal institutions and alternative care settings.

There appears to be no confirmation in law of a “right” of parents to discipline/punish children but corporal punishment is widely used and there is no explicit prohibition in law of all corporal punishment. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that all such punishment is unlawful, however light and whoever the perpetrator.

Legislation should explicitly prohibit corporal punishment in all education settings, public and private. The law should explicitly prohibit corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law. And legislation should be enacted to explicitly prohibit corporal punishment in all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 9 of the Law on the Rights of the Child 1993 states (unofficial translation): “Every child has the right to protect their identity against all types of exploitation and abuse. The State shall ensure the inviolability of the child, it shall be protected from all forms of exploitation, including sexual exploitation, from physical and mental abuse, cruel or degrading treatment, humiliation, and sexual harassment, including on the part of the parents (or guardians) and relatives ….” The Code on Marriage and the Family 1999 states in article 65 that the family is responsible for the education, maintenance and protection of children and that the family has “the pre-emptive right and duty to determine the forms, means and methods of childrearing”; articles 66-1, 67 and 80 protect the child from cruel treatment. The Code confirms the right of children “to live in peace, security and dignity” (article 184) and “to defend their person, honour and dignity against all forms of exploitation and violence” (article 189). These provisions, as well as the protections for children in the Criminal Code 1999, the Code on Administrative Offences 2003, the Crime Prevention (Principles) Act 2009 and the Constitution 1994 are not interpreted as prohibiting all corporal punishment in childrearing.

In 2011, a draft Law on Prevention of Domestic Violence was under discussion; as at March 2013 it appears not to have been enacted. We do not know if prohibition of corporal punishment has been proposed in this context.

Schools

Corporal punishment is considered unlawful in schools under article 9 of the Rights of the Law on the Rights of the Child (see under “Home”), but there appears to be no explicit prohibition. There is no authorisation for corporal punishment in the Code on Education 2011: students are entitled to “protection of life and health in the educational process” (articles 31(1.7) and 31(4.6)); teaching staff have the right to “choose pedagogically sound forms and methods of training and education” (articles 52 and 89(1.4)) and must “respect the honour and dignity of students” (article 53). The Government has stated that corporal punishment is prohibited in educational establishment regulations (23 March 2010, CRC/C/BLR/3-4, Third/fourth state party report to the Committee on the Rights of the Child, para. 213) but we have been unable to identify explicit prohibition in regulations or law.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not among lawful sanctions in the Criminal Code 1999 and Criminal Procedure Code 1999.

Corporal punishment is considered unlawful as a disciplinary measure in penal institutions under article 9 of the Law on the Rights of the Child (see under “Home”), but it is not explicitly prohibited. Article 36 of the Law on the Rights of the Child states that children in special educational or special health care institutions, which includes children in institutions for young offenders, have the right to humane treatment. Similarly, the Law on Prevention of Neglect and Offences of Minors 2003 states that juveniles in detention have the right to be treated “humanely, without degrading treatment” (article 8). The Criminal and Executive Code 2000 does not include corporal punishment among permitted disciplinary measures in penal institutions (articles 55, 61, 129, 130 and 185), though it does provide for the use of physical force, including for “the prevention and suppression of offences” and with implements including “rubber sticks” (articles 78 and 79).

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings. Article 30 of the Law on the Rights of the Child 1993 punished “teachers and other staff of children’s homes, boarding schools and other boarding institutions who commit anti-pedagogical or immoral acts against pupils”, but this article was repealed when the Act was amended in 2008. Under the Code on Marriage and Family 1999, orphans and children left without parental care have the right to “respect for their human dignity, protection of rights and legitimate interests” (article 177), to “live in peace, security and dignity” (article 184) and to “defend their person, honour and dignity against all forms of exploitation and violence” (article 189)

Prevalence research

According to statistics collected under round 4 of the UNICEF Multiple Indicator Cluster Survey programme (MICS4), in 2011 64.5% of children aged 2-14 experienced physical punishment and/or psychological aggression. (National Statistical Commission of the Republic of Belarus (2013), Republic of Belarus Multiple Indicator Cluster Survey of Children and Women 2012: Preliminary Findings, UNICEF)

According to a UNICEF report published in 2010, 84% of children aged 2-14 experienced violent "discipline" (physical punishment and/or psychological aggression) in 2005-2006. Half experienced physical punishment, while a much smaller percentage (15%) of mothers and caregivers thought that physical punishment was necessary in childrearing; non-violent discipline was also very widely used, experienced by 94% of children. Two per cent of children experienced severe physical punishment (being hit or slapped on the face, head or ears or being hit over and over with an implement) and 78% experienced psychological aggression (being shouted at, yelled at, screamed at or insulted). Boys were more likely than girls to experience violent discipline: 87% compared with 80%. Children aged 5-9 were slightly more likely to experience violent discipline than those of other ages: 86% of children aged 5-9 compared with 85% of children aged 2-4 and 82% of children aged 10-14. Children living in larger households were more likely to experience violent discipline: 90% of children in households of 6 or more people compared with 81% of children in households of 2-3 people. No significant differences in children’s experience of violent discipline were found according to level of education of adults in the household or engagement in child labour. (UNICEF (2010), Child Disciplinary Practices at Home: Evidence from a Range of Low- and Middle-Income Countries, NY: UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting that corporal punishment is unlawful as a sentence for a crime, and that it has been prohibited in the regulations of education establishments, the Committee, nevertheless, remains concerned that corporal punishment is lawful in the home, not explicitly prohibited in institutions, including in the penal system and alternative care settings, and is widely accepted in society.  

“The Committee reiterates its recommendation (CRC/C/15/Add.180, para. 40 (d)) that the State party prohibit all forms of corporal punishment at home, in schools and other institutions and develop measures to raise awareness on the harmful effects of corporal punishment, and promote alternative forms of discipline in families, in institutions and the penal system, to be administered in a manner consistent with the child’s dignity and in conformity with the Convention. In this regard, the Committee draws the State party’s attention to its general comment No. 8 (2007) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.”
(8 April 2011, CRC/C/BLR/CO/3-4, Concluding observations on third/fourth report, paras. 39 and 40) 

“The Committee expresses its concern about the insufficient information and awareness of the ill-treatment and abuse of children in the home, in schools and in other institutions.

“In light of article 19 of the Convention and in line with its previous recommendation (ibid., para. 40), the Committee recommends that the State party: ...

d) prohibit all forms of corporal punishment at home, in schools and other institutions and develop measures to raise awareness on the harmful effects of corporal punishment, and promote alternative forms of discipline in families to be administered in a manner consistent with the child’s dignity and in conformity with the Convention….”
(13 June 2002, CRC/C/15/Add.180, Concluding observations on second report, paras. 39 and 40)

Universal Periodic Review

Belarus was examined in the first cycle of the Universal Periodic Review in 2010 (session 8). The following recommendation was made (21 June 2010, A/HRC/15/16, Report of the working group, para. 98(24)):

“Forbid corporal punishment of children and take order in that matter (Brazil)”

The Government accepted the recommendation, but stated that it was already implemented, that “there are specific provisions enshrined in Belarusian legislation prohibiting child abuse, including the corporal punishment of children” and that “the Criminal Code and the Administrative Offences Code establish criminal and administrative liability, respectively, for causing grave, moderate or minor bodily harm, torture and other forms of violence” (15 September 2010, A/HRC/15/16/Add.1, Report of the working group: Addendum, paras. 65, 66 and 67). As noted above, according to our research there is no explicit prohibition of corporal punishment in the Law on the Rights of the Child or other legislation.

Examination in the second cycle is scheduled for 2015.