Communication 84/2019 N.B. v. Georgia
Corporal punishment at public kindergarten breached Article 19 CRC
On 1 June 2022, the CRC Committee issued its views concerning Georgia. The case revolves around the corporal punishment of a child at his public kindergarten by a teacher and the question of state responsibilities regarding violence against children, with a focus on the educational setting. The case note will begin by describing the facts of the case and the findings of the CRC Committee. In my commentary, I will further elaborate on the views and discuss how it aligns with relevant European human rights developments.
Facts of the case
N.B., the author of the communication, is a three-and-a-half-years old boy who allegedly suffered from corporal punishment at his kindergarten on 24 January 2017. His mother brought him to kindergarten and when she picked him up in the evening, he had red spots and scratches on his face, swelling and blue spots on both ears. In the morning he had not shown any signs of injury. The child was – unlike other days – accompanied by his teacher who asked the mother if he had any allergies, previous injuries or if he had been hit by his father since he showed red spots on his face. The mother asked her son what had happened, and he discreetly pointed at his teacher and said that she had slapped him in the face and pulled at both his ears. The teacher denied having done so. At home the boy repeated the same explanation about his teacher slapping him, arguing that it was because he had not been able to properly draw a house. His mother called the police and reported the incident. The police questioned the mother and her son and started criminal investigations. The incident was broadcasted by the media. On 25 January 2017, a social worker visited the boy and his mother for 15 minutes. Only one year later, and after a request by the mother, the social services sent her a one-and-a-half-page summary document describing the incident. The document did not include any evaluation.
The teacher was dismissed in March 2017 because of ‘gross breach of duty’ without any reference being made to the incident with N.B. The teacher contested her dismissal, and the Tbilisi City Court subsequently ordered her reinstatement. After this decision the teacher returned to the same kindergarten. In 2018, the mother requested several times that the police and the prosecutor take legal action, as the investigation was still ongoing. The mother also inquired during this period with the kindergarten management about the actions taken to investigate the incident. She was informed that none of the personnel confirmed any act of violence against N.B. Yet, the grandmother of another child in the same class claimed that her grandson was also slapped by the teacher. In August 2018 the mother was allowed to consult the investigation file which revealed multiple flaws in the investigation process. Thus, although other parents had raised allegations of corporal punishment on their children by the same teacher, there was no information about questioning those parents. No children who might have witnessed the incident were questioned either. Furthermore, the mother found out that the law enforcement agencies did not initiate any administrative proceedings against the kindergarten staff for their failure to report the incident, as required. Social services were also not notified about the launching of the criminal investigation.
N.B. alleged before the CRC Committee a violation of articles 2, 12 and 19 of the CRC. Among others, he claimed a violation of article 19 CRC on the basis that the State Party had not adopted appropriate legislative measures to ban all forms of violence against children, including corporal punishment in educational settings, as recommended by the Committee following consideration of the State Party’s fourth periodic report (para 1). The State Party's authorities did not provide him with effective measures of protection and the kindergarten failed to identify, report, and refer the incident to the proper authorities (para 2). Police and prosecutorial authorities failed to effectively investigate the incident within a reasonable timeframe (para 3a) and omitted to carry out a number of investigative actions (para 3b).
Moreover, N.B. claims that the State Party had failed to criminalise corporal punishment which is a discriminatory approach towards children based on their age (4) and accordingly this is a violation of his rights under article 2 CRC (non-discrimination). Lastly, he claims a violation of his rights under article 12 CRC because he was not given the opportunity to participate in the investigation into the incident (para 5).
Georgia considers that the communication should be declared inadmissible for non-exhaustion of both civil and criminal proceedings. The State Party claims that the author should have waited for the conclusion of the ongoing criminal investigation because the authorities performed effective and prompt investigative measures without substantial delays. 22 months was an appropriate duration for an investigation according to Georgia. On the merits, Georgia submits that it had complied with its positive obligations based on articles 2, 12 and 19 CRC. According to the State Party, N.B. was engaged sufficiently in the investigation and the alleged discriminatory nature of the Georgian Criminal Code is unfounded. Finally, the State Party underscores the efforts taken to combat violence against children and ensure effective protection against domestic violence for all children.
Findings of the CRC Committee
The CRC Committee accepted the argument of the State Party that the claims regarding articles 2 and 12 CRC should be declared inadmissible. Regarding article 2 CRC, the Committee considered that the author had failed to exhaust all available domestic remedies. N.B. did have the possibility to bring a complaint of discrimination before the domestic courts (para 6.7). The Committee concluded that the author had also failed to sufficiently substantiate his claim under article 12 CRC and declared it inadmissible, since N.B. was heard in the context of the criminal investigation and was interviewed by a psychologist (para 6.8). However, the Committee held that the claims under Article 19, which related to the insufficient protection against corporal punishment and the insufficient actions by the State Party, were substantiated and that the author had exhausted domestic remedies regarding those claims.
The CRC Committee found a violation of the obligations under article 19 CRC because the national authorities have not shown due diligence and have failed to investigate the alleged corporal punishment promptly and effectively. First, the Committee analysed the complaint in substantive terms and considered that the author’s description of the treatment to which he had allegedly been subjected at the hands of the teacher of the kindergarten was detailed and consistent and was a form of violence as defined by article 19 CRC and as defined and elaborated on in the Committee’s 2007 General Comment on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (General Comment No. 8). In this regard, the Committee stressed the particular vulnerability of the author as a three-and-a-half-year-old child at the time of the incident, the teacher’s position of authority and control, and the role of the kindergarten to provide a basic public service of general interest of caring for and educating children. Because the State Party did not account for the injuries suffered by the author while he was in the care of the public kindergarten, according to the CRC Committee the State Party’s responsibility for his injuries is engaged under article 19 CRC. In other words, the Committee underscores the vulnerable position of young children in the care of public schools and teachers who have authority.
Regarding the procedural element contained in article 19 CRC, the CRC Committee recalled that the investigation of instances of violence must be undertaken by qualified professionals with a child rights-based and child-sensitive approach. Furthermore, the Committee stressed that the investigation must be effective and rigorous. This obligation concerns an obligation of means, and not of result. The investigation should be conducted with promptness and reasonable expedition. In the case, the CRC Committee found that the investigations were significantly delayed and that it was not very child friendly. More than five years after the incident, the investigation is still pending without any significant developments. Therefore, the CRC Committee concluded that such investigations failed to comply with standards of promptness and effectiveness and no due diligence has been shown.
Finally, the CRC Committee held that Georgia is obliged to provide N.B. with an effective reparation and to take all necessary steps to prevent similar violations from occurring in the future.
This View of the CRC Committee clearly points out that State Parties are responsible to protect children against all forms of violence, including corporal punishment, as is emphasized in its (General Comment No. 8, para 7.2). This obligation encompasses both legislative and other measures. All States have criminal laws to protect citizens from assault and many states have legislation reflecting the right to protection from torture and cruel, inhuman or degrading treatment or punishment, but according to the CRC Committee, such legislative provisions may not adequately guarantee the protection of children from corporal punishment in all settings (General Comment No. 8, para. 30). This can be explained by social perceptions that parents and other carers, such as teachers in kindergarten, should be legitimized to ‘discipline’ their children. Traditional attitudes also sometimes imply that corporal punishment is permitted. Therefore, it has been a long way for the CRC Committee and other international human and children’s rights bodies to stimulate State Parties to prohibit corporal punishment in all settings and to take other measures, such as awareness-raising campaigns, to combat this practice. The reluctance of State Parties to take action in this regard is also visible in Georgia’s fourth periodic report. The CRC Committee mentioned this report in the View and expressed strong concerns regarding the prevalence of corporal punishment in schools and institutions, the lack of legislation criminalizing corporal punishment, insufficient awareness-raising activities, and limited implementation of the child protection referral system with regard to kindergartens (Concluding Observations on the fourth periodic report of Georgia, para 21). Since then, Georgia has banned corporal punishment in 2020 by introducing a legislative prohibition. Therewith, Georgia has joined 63 states worldwide that prohibit all corporal punishment of children (End Corporal Punishment, Progress).
The role of professionals
The case presents the many challenges of combatting corporal punishment employed by parents and teachers to discipline children. Legislative reform is only a first, albeit critical, step in the battle to eradicate corporal punishment in all settings. But equally important are social perceptions and norms about the use of corporal punishment. In Georgia, half of the population considers violent discipline an acceptable social norm. This means that there’s a world to win with awareness-raising programs and training, especially for professionals working with and for children. In this case, it has become clear that the kindergarten management did not take all steps needed; the teacher was first fired, but after a court decision the teacher was welcomed again by the kindergarten staff. Furthermore, the child protection referral system was not adhered to. Referral systems are an important tool to combat violence against children. Professionals are in a pivotal position to identify signs of violence and start combating this by way of reporting, after which interventions can begin in order to both stop the violence and support the child victim. Many forms and incidences of violence against children remain largely underreported and undetected and children in vulnerable situations are at a heightened risk of experiencing violence (Report of the independent expert for the United Nations study on violence against children 2006, para. 25-27). This is particularly the case when considering young children (General Comment No. 7, para. 36). It is predominantly professionals working for and with children, such as educational staff, health personnel and social workers, who spot and identify signs of violence and are in a position to report reasonable suspicions to the relevant authorities. Therefore, children should be able to count on professionals to protect them against all forms of violence. Effective reporting systems as part of an integrated child protection system are vital to effectively combat violence against children, including corporal punishment. Therefore, the Council of Europe is currently drafting a new Recommendation on Strengthening reporting systems on violence against children.
Violation of Article 19 CRC
The CRC Committee clearly concludes that Georgia has not fulfilled its obligations regarding corporal punishment in schools (para 7.5). The substantive limb of the View focuses on the evidence of corporal punishment by the teacher at the kindergarten: the author's description was detailed and consistent and was supported by an eyewitness testimony of a grandmother of another child who confirmed that the same teacher had often hit her grandson. Furthermore, a forensic medical report confirmed the injuries of the author. With this in mind, the CRC Committee rightly finds that the State Party did not account for the injuries and that the State Party’s responsibility is engaged.
In a similar vein, the CRC Committee concluded that the procedural guarantees included in article 19 CRC have not been met by the State Party, due to a lack of an effective criminal investigation and to a lack of due diligence (para 7.8). It is not clear what the CRC Committee exactly means with the wording ‘due diligence’. The definition of ‘due diligence’ in the context of law is according to the Merriam-Webster “the care that a reasonable person exercises to avoid harm to other persons or their property”. With this in mind, due diligence could mean that, apart from a prompt criminal investigation, the actions before and during a criminal investigation take into account the best interests of the child, are child-friendly and avoid any harm to the child victim. The CRC Committee raises the question whether the child’s interview by a specialized investigator, in the presence of a psychologist, was video recorded to safeguard the child’s testimony for its possible use in subsequent court proceedings. The video recording of child victims’ interviews could be considered an example of due diligence. Moreover, the claim of the author that his views were not included in the inquiry of the management of the kindergarten (para. 3.5) could also be seen as a lack of due diligence. But the CRC Committee decided in the context of this claim under Article 12 CRC to not touch upon this complaint and concluded that the author had not sufficiently substantiated this claim (para. 6.8)
The most important element of the conclusion of the CRC Committee concerns the lack of a rigorous and prompt investigation within a reasonable time. The Committee’s View is not a surprise, because more than five years after the incident the investigation is still pending, without significant developments. This clearly does not amount to a speedy investigation within a reasonable time and results in a violation of State Party’s obligations under Article 19 CRC. This View is in line with recent relevant decisions of the European Court on Human Rights (ECtHR). In a similar case that concerned a situation of violence in a nursery school against a child, the ECtHR found that the State Party was in violation of Article 3 ECHR (V.K. v. Russia (2017)). The ECtHR concluded that teachers in nursery schools could be regarded as State agents. In that case, a young boy was ill-treated during school hours by teachers while fulfilling their duty of care for him. As the acts were connected to their role as teachers, the State bore direct responsibility for the wrongful acts. More importantly, the ECtHR has developed a clear trend towards viewing all corporal punishment as a violation of the child’s dignity and right to physical integrity and has defined clear procedural obligations of State Parties to adhere to article 3 ECHR. When analysing the case-law, it becomes clear that professional attitudes regarding corporal punishment influence investigation procedures and sometimes lead to situations in which investigations continue for many years (O’Mahony, C. (2019). Is time running out for corporal punishment under the ECHR? European Human Rights Law Review, (1), 55–65). This can be explained by professionals’ attitude in this regard to not prioritize criminal investigations in cases involving corporal punishment. In the ECtHR D.M.D. v. Romania (2017) case, a mother reported to the police that her husband was abusing her three-year-old son. Little or nothing was done following the complaint about the father to the child protection authorities, and actions were very slow after the first four criminal complaints of the child and his mother to the police or in the three years and six months it took to investigate and indict the father. The ECtHR found that the overall length of the proceedings in that case - eight years and four months - has been excessive and that the 'blame' for the delay could in no way be attributed to the applicant. The CRC Committee’s View aligns with this ECtHR judgment.
Overall, this is not a landmark View by the CRC Committee. Still, it corresponds well with relevant international children’s rights standards and similar cases that were brought before the ECtHR. Moreover, the CRC Committee took an important step in this View by emphasizing that State Parties have obligations to eradicate corporal punishment in nurseries and schools. The obligations do not only encompass legislative action, on the contrary, much more is needed to combat corporal punishment. Awareness-raising and professional training are key elements and are vital especially in countries in which the social perception approves of corporal punishment.