Summary of law reform necessary to achieve full prohibition

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

We have been unable to establish whether or not legislation confirms a right of parents and others with parental authority to administer physical punishment, but legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in “disciplining” children necessitates a clear statement in law that all corporal punishment, however “light”, is prohibited.

Explicit prohibition should be enacted in legislation applicable to all institutions accommodating children in conflict with the law and to 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. Provisions against violence and abuse in the Child’s Rights Law N. 345-II (2002, amended 2004), the Marriage and Family Law N. 321-I (1998, amended 2004), the Criminal Code (1997, amended 2004) and the Law on Domestic Violence (2009) are not interpreted as prohibiting all corporal punishment of children.

Schools

Corporal punishment is considered unlawful in schools under the Child’s Rights Law and the Education Law N. 389-I (1999, amended 2004), though we have been unable to establish whether prohibition is explicit. It is not explicitly prohibited in military schools.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for judicial corporal punishment in the Criminal Code.

Corporal punishment is unlawful as a disciplinary measure in penal institutions, including special educational or medical-educational institutions, under the Code for the Execution of Criminal Penalties (information unconfirmed).

Alternative care

Violence, including corporal punishment, is unlawful in other institutions and forms of childcare under Special Law No. 113-11 About children’s villages of family type and youth homes (2000, amended 2004), Decree N. 1613 Statute on the family in children’s villages (2001), the Order by the Head of the Health Agency N. 228 “On operational procedures in infant homes” (2000), Law No. 343-II On social, medical and pedagogical correctional support of children with special needs (2002, amended 2004), the Child’s Rights Law, Law N. 591-II On prevention of crimes among youth and prophylaxis of child abandonment and street children (2004), Law N. 430-II On the health system (2003, amended 2004), the Education Law, and Ministerial Order N. 08-1/31 Guidelines on registering children, citizens of Kazakhstan, adopted by foreigners (2003). There is no explicit prohibition of corporal punishment in foster care or kinship care.

Prevalence research

According to statistics from UNICEF on violence in the family, 52% of children aged 2-14 experienced physical punishment and/or psychological aggression in 2005-2006: 19% experienced physical punishment and psychological aggression, 29% experienced psychological aggression only and 4% experienced physical punishment only. In total, 23% of children experienced physical punishment, while only 7% of mothers and caregivers believe that physical punishment is necessary in childrearing. Of girls and women aged 15-49, 10% think that a husband is justified in hitting or beating his wife under certain circumstances. (UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF)

A nationwide survey on violence against children was conducted in 2002 by the Association of Social Scientists and Politologists with the support of UNICEF, using anonymous questionnaires for parents and for children and in-depth interviews with education, health and childcare specialists. 1,100 children aged 7-18 years living with their parents, in institutions and on the street, 1,100 parents of children aged 5-18 years, and 220 specialists were included in the research. Specialists estimated that 60-80% of children are subject to violence by parents, adults and children, and the number is increasing. Health workers reported an increase in the number of children coming to their facilities as a result of beating and torture in families. Interviews showed that most often the victims were from “troublesome” families (49.5%) and families with a low level of education (28.7%), and children of all ages were susceptible. “Educational” measures reported by parents on their children included explanations (32%), reprimands (29.1%), moral punishment or bans (17.6%), scolding (16.4%) and physical punishment (2.3%). Scolding and physical punishment were most common for low-income families. One third (33%) of children reported encountering violence – on average 3.3% constantly suffer from brutal treatment, 16.3% frequently, 66.6% sometimes and 13.8% never. The perpetrators of the violence were reported as older children (44.5%), parents/relatives (23.9%), policemen (9.6%), teachers and educators (9.6%), youth groups (8.2%), and hooligans and bandits (4.2%). In all settings (at home, with relatives, boarding school, orphanage, remand centre, and special school), violence was most commonly carried out by older children followed by parents and relatives. (Association of Social Scientists and Politologists/UNICEF, 2002, Violence against Children in the Republic of Kazakhstan February – March 2002, Almaty: ASSAP/UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee appreciates that corporal punishment is unlawful in schools, the penal system and alternative care. However, the Committee regrets that there is no specific legal prohibition of corporal punishment in foster care, military schools, kinship care and the workplace, and that despite legal prohibitions for some areas, the de facto situation is that children are still victims of corporal punishment.

“The Committee urges the State party, while taking into account its general comment No. 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/GC/2006/8), to:

1. explicitly prohibit in law corporal punishment of children in all settings;
2. undertake public and professional awareness-raising;
3. promote non-violent, positive, participatory methods of childrearing and education and knowledge among children of their right to protection from all forms of corporal punishment; and
4. Seek assistance from, inter alia, UNICEF and WHO.”

(19 June 2007, CRC/C/KAZ/CO/3, Concluding observations on second/third report paras. 36 and 37)

“The Committee also notes that corporal punishment is forbidden in educational institutions but remains concerned that inappropriate methods of discipline, including corporal punishment, continue to be used in such institutions. The Committee is further concerned that appropriate measures have not been taken to effectively prevent and combat any form of ill-treatment and corporal punishment of children within the family.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment, within the family, schools and other institutions. The Committee further recommends that the State party, through, for example, public awareness campaigns, promote positive non-violent forms of discipline as an alternative to corporal punishment, especially in families, the schools and other institutions.”
(10 July 2003, CRC/C/15/Add.213, Concluding observations on initial report, paras. 37 and 39)