Costa Rica 2005 Criminal Court of Cassation judgment
Condemnation of corporal punishment by parents – 2005-1062, Case No. 02-002448-0369-PE-(3)
In October 2005, the Criminal Court of Cassation of the Second Circuit Court of San Jose dismissed an appeal by a father convicted for punishing his daughter with a belt. The father’s argument was that his actions were based on “a custom that has existed for over twenty years” and that he had used a soft belt that did not have a buckle. The Court stated that legislation recognises the right and duty conferred under parental authority to, “in a moderate way, correct children” (Family Code, art. 143). However, the Court argued:
… this can in no way be interpreted as a general authorization for parents or guardians of minors to hurt them without being punished for that action or simply to dispose of their lives as they please. This concept is an atavistic approach of family relationships, according to which the father disposed of all assets, including his wife and children. On the contrary, according to the legislation in force in Costa Rica, minors are vested with rights and duties and the State must watch out for their physical and moral integrity.”
The Court quoted article 19 of the UN Convention on the Rights of the Child – the right to protection from all forms of physical or mental violence – and the recommendations of the Committee on the Rights of the Child to prohibit corporal punishment in the home. The Court also quoted Costa Rica’s domestic legislation recognising children’s right to respect for their “physical, psychological, and moral integrity” (Children and Adolescents Code, art. 24), concluding “that the rights granted to parents under the paternal rights and duties is limited by the human rights of minors and the prohibitions expressly established in the criminal laws” and stating:
In short, parents – even though vested with parental rights and duties have no ‘right’ to hurt their children. Accepting otherwise would breach the principle of equality, established in article 33 of the Political Constitution, since aggression with weapons is not allowed among adults, let alone against persons who are vulnerable and/or within the family circle. Respect for physical integrity is part of respect for human dignity, and therefore, there is no legal standing to deteriorate the human rights of the victims in this case.”
For these and other reasons the appeal was declared unfounded.
Subsequent law reform
Shortly after this judgment, Costa Rica reformed its legislation to prohibit corporal punishment of children by their parents and other adults. In June 2008, Parliament enacted the Law No. 8654 on the Rights of Children and Adolescents to Discipline Free from Corporal Punishment and Other Forms of Humiliating Treatment. Before this – and until challenged by the court ruling described above – article 143 of the Family Code which stated that “paternal authority confers rights and imposes the duty to educate, care for, watch over and, with moderation, correct the son or daughter”, was interpreted as allowing some degree of physical punishment in childrearing. The 2008 law amended this article to reflect the court ruling, so that it now states:
Parental authority confers the rights and imposes the duties to orient, educate, care, supervise and discipline the children, which in no case authorises the use of corporal punishment or any other form of degrading treatment against the minors.”
The Law also added article 24bis to the Code on Children and Adolescents 1998:
Children and adolescents have a right to receive counselling, education, care and discipline from their mother, father or tutor, as well as from their caretakers or the personnel from educational and health centres, shelters, youth detention or any other type of centres, that in no way represents an authorisation of any sort to these parties for the use of corporal punishment."