The case of N.B. v. Georgia. Views of the Committee on the Rights of the Child dated June 1, 2022. Message No. 84/2019.
In 2020, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Georgia.
The Human Rights Committee considered that the corporal punishment to which the author was subjected in kindergarten was a form of violence against a child, as defined in article 19 of the Convention on the Rights of the Child. Given the author's particular vulnerability as a child aged 3.5 years, the status of a teacher with authority and control over the author, as well as the role of the kindergarten in providing basic public services of common interest and consisting in the care of children and their education, the Committee concluded: the State party did not take into account the injuries received the author, when he was under the care of a State kindergarten, and that therefore the State party's responsibility for his injuries comes in accordance with article 19 of the Convention. The Committee also concluded that the national authorities did not make adequate efforts and did not conduct a prompt and effective investigation into alleged corporal punishment in violation of the State party's obligations under article 19 of the Convention on the Rights of the Child.
As seen from the text of the Considerations, the author of the communication claimed, among other things, a violation of his rights under article 19 of the Convention on the Rights of the Child. He argued that the State party had not taken appropriate legislative measures to prohibit all forms of violence against children, including corporal punishment, as recommended by the Committee on the Rights of the Child after consideration of the State party's fourth periodic report. He pointed out that there was no explicit prohibition of corporal punishment in official institutions for the care of young children and considered that the treatment of corporal punishment to which the author was subjected in kindergarten was a form of violence against a child, as defined in article 19 of the Convention on the Rights of the Child. Given the author's particular vulnerability as a child aged 3.5 years, the status of a teacher with authority and control over the author, as well as the role of the kindergarten in providing basic public services of common interest and consisting in the care of children and their education, the Committee concluded: the State party did not take into account the injuries received the author, when he was under the care of a State kindergarten, and that therefore the State party's responsibility for his injuries comes in accordance with article 19 of the Convention. The Committee also summarized: the national authorities did not make adequate efforts and did not conduct a prompt and effective investigation into alleged corporal punishment in violation of the State party's obligations under article 19 of the Convention on the Rights of the Child or in official day care facilities for older children (paragraph 3.2 of the Views).
The Committee's legal position: Recalling its general comment No. 8, the Committee clarified that the wording of article 19 of the Convention is based on article 4 and clearly indicates the need for legislative as well as other measures to comply with the obligation of States to protect children from all forms of violence, including corporal punishment (paragraph 7.2 of the Views).
Article 19 of the Convention on the Rights of the Child is formulated both materially and procedurally (paragraph 7.3 of the Views).
The Committee defines "corporal" or "physical" punishment as any punishment in which physical force is used and which is intended to cause some pain or discomfort, no matter how light they may be. In most cases, this involves hitting children ("spanking", "spanking", "spanking") with a hand or some object (whip, stick, belt, shoe or wooden spoon) (paragraph 7.4 of the Considerations).
The burden of proof cannot be placed solely on the author of the communication, especially given that the author and the State party do not always have equal opportunities to obtain evidence, and often only the State party has relevant information (paragraph 7.4 of the Views).
The investigation of cases of violence reported by a child, his representative or a third party should be conducted by qualified specialists who have received specialized and comprehensive training, and requires an approach based on the rights and characteristics of the child. Serious but child-sensitive proceedings help ensure that cases of violence are properly identified and evidence is found for administrative, civil, child protection and criminal proceedings. The Committee recalls that this obligation is not about results, but about means. The authorities must take reasonable measures available to them to provide evidence relating to the incident. In addition, the investigation should be conducted promptly and within a reasonable time (paragraph 7.6 of the Considerations).
The investigation of the case of child abuse should be effective in the sense that it should lead to the establishment of whether the author was subjected to corporal punishment in kindergarten and to the identification of the perpetrators (paragraph 7.6 of the Considerations).
The Committee's assessment of the factual circumstances of the case: it was necessary to determine whether the alleged corporal punishment to which the author was subjected on 24 January 2017 at the hands of his teacher and the alleged lack of an effective investigation into such treatment constituted a violation by the State party of its obligations under article 19 of the Convention (paragraph 7.3 of the Views).
Regarding the substantive element of article 19 of the Convention on the Rights of the Child, the Committee noted that the author entered kindergarten on the morning of 24 January 2017 without any signs of facial injury. However, when his mother came to take him home that day, he had purple bruises on the lobes of his left and right ear, on his right cheek and left lower jaw. According to the conclusion of the forensic medical examination and the author's own story, the injuries were sustained as a result of being hit and dragged by the ears by a kindergarten teacher (paragraph 7.4 of the Considerations).
The Committee found that the author had been taken into the care of a State kindergarten without any pre-existing facial injuries. No plausible explanation has been provided for the injuries to his ears and face, allegedly caused by punishment by a State kindergarten teacher on the kindergarten grounds and while the author was under the care of a State institution. The Committee considered that the author's description of the treatment he was allegedly subjected to by the kindergarten staff was detailed and consistent. It was partially confirmed by the testimony of the grandmother of another child, who showed that the teacher often used corporal punishment on her grandson. The statement of the author's teacher that the child could suffer from allergies is not supported by any evidence. The conclusion of the forensic medical examination dated January 27, 2017 indicated that the injuries were caused by a blunt object, without mentioning that they could be the result of allergies. On the basis of all the materials submitted to it and in the light of the fact that the State party's authorities were unable to provide an alternative explanation, the Committee concluded: the treatment the author suffered was a form of violence against a child, as defined in article 19 of the Convention on the Rights of the Child. Given the author's particular vulnerability as a child aged 3.5 years, the status of a teacher who had power and control over the author, as well as the role of the kindergarten in providing basic public services of common interest and consisting in the care of children and their education, the Committee considered that the State party had not taken into account the injuries received the author was under the care of a State kindergarten, and therefore the State party's responsibility for his injuries arises in accordance with article 19 (paragraph 1) of the Convention (paragraph 7.5 of the Considerations).
The Committee stressed that, although the author was interviewed by a specialized investigator in the presence of his father and a psychologist, the State party did not indicate whether the interview was videotaped in order to preserve the child's testimony for possible use in subsequent court proceedings and whether the child was instructed on the importance of telling the truth. The Committee further noted that although the police launched a criminal investigation without delay, it took the investigating authorities almost 10 months to hear from two staff members who complained about the accused teacher and 15 months to contact parents whose children were under the supervision of the same teacher. The State party has not explained these delays. The Committee pointed out that it was only on 22 August 2018, that is, 19 months after the incident, that the author's lawyer was allowed to review the case file. Finally, the Committee stressed that, more than five years after the incident, the investigation is still ongoing without any meaningful progress. Regardless of the possible final outcome of the investigation and without considering whether the information and evidence contained in the case file were sufficient to initiate criminal proceedings, the Committee considered that the investigation did not meet the standards of speed and efficiency (paragraph 7.7 of the Considerations).
The Committee's conclusions: The national authorities did not make adequate efforts and did not conduct a prompt and effective investigation into alleged corporal punishment in violation of the State party's obligations under article 19 of the Convention on the Rights of the Child (paragraph 7.8 of the Views).