5 questions on the “right of correction”, this “custom” which resists | EUROtoday

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LThe Court of Appeal of Metz (Moselle) rendered a stunning choice on April 18, which a number of youngster protection associations additionally contemplate “scandalous”. Its correctional appeals chamber acquitted a father who, at first occasion, had been closely sentenced by the Thionville felony courtroom (18 months' imprisonment, with a probationary suspension) for acts of violence towards his youngsters, aged 10 and 13.

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The defendant, a former police officer, admitted to having a “strict and harsh” upbringing. During their listening to in 2022, the kids described one other actuality. “When my father is angry with me, he strangles me and pins me against the wall. Me and my little brother, we are terrified to a point that you cannot imagine,” the eldest is alleged to have declared in an affidavit reported by BFMTV.

READ ALSO What does psychoanalysis say about authority? The Court of Appeal doesn’t contest these acts of violence, contemplating the victims' testimonies “consistent and corroborated”. But she mentions, in her judgment, a “right of correction recognized to parents”, which might authorize the felony decide to waive sanctioning the creator of violence dedicated towards his youngsters, “as long as it remains proportionate to the breach committed and that 'they do not present a humiliating character'.

The public prosecutor's office, which had requested confirmation of the sentence pronounced by the “first judges”, immediately filed an appeal in cassation against this decision, as did the lawyers for the mother and children.

1. What “right of correction” is the Metz Court of Appeal referring to?

Until 1935, the Civil Code offered “means of correction” to the father – parental authority was not yet joint – if he had “very serious grounds for dissatisfaction” with the conduct of one of his children. He could, according to the provisions of the Civil Code of 1804, “have him detained”, from the age of 16 and for a time which could not exceed one month, in a supervised education house or a penal colony, without the the president of the district court, which had to be referred, could not object – the child did, however, have a right of appeal.

This paternal right of correction went hand in hand with the “right of marital correction” that a man could exercise over his wife, in ancient law. This right had disappeared from the Civil Code of 1804 which, however, stated that “the husband [devait] protection for his wife [et] the wife obedience to her husband. Jurisprudence will use this article for a long time to maintain this custom from another age which, in the 19the century and until the 20the century, thus legitimized domestic violence.

Inherited from the Ancien Régime, the paternal right of correction was abolished in 1935. Corporal punishment of minors was then theoretically prohibited but, in fact, parents remained attached to it and used it. Society resists, reinforced by the judges who then invoke “custom”, to exonerate the perpetrators of ordinary “educational violence” from criminal responsibility. On the other hand, the courts punish excessive violence when it does not have an educational purpose, when it is “degrading or humiliating” or when the person claiming it does not have the “right of correction”. For the rest, this is therefore maintained, in the name of supposedly “educational” virtues. “A good spanking never hurt anyone,” says popular common sense.

In 2008, the Douai Court of Appeal acquitted in this spirit a father prosecuted for having administered slaps and spankings to his two daughters aged 13 and 16, affirming that “the violence acknowledged by the defendant was mild, uncommon and never had not gone past the train of the straightforward proper of correction”.

The time period “right of correction” is from one other time. This is a horrible step backwards, particularly for the reason that details had been established and the person had been convicted at first occasion.Senator Marie-Pierre de la Gontrie

This customized was acknowledged till very not too long ago by the Court of Cassation. Thus, in a judgment of October 29, 2014, the excessive courtroom nonetheless famous a “right of correction recognized to parents”, whereas setting its limits: “the absence of damage caused to the child”, the correction should stay “proportionate to the breach committed and not be humiliating in nature”.

It is that this case legislation that the Metz Court of Appeal adopted, nearly phrase for phrase, in its judgment of April 18. It needs to be famous that this customary proper of correction and self-discipline was additionally acknowledged for lecturers, within the twentiethe century, “provided that it is carried out in a harmless manner and responds to an educational necessity”. Quite not too long ago, a trainer who had grabbed a scholar by his sweatshirt, to be able to unceremoniously drag him to his workplace, two flooring larger, was acquitted within the title of this tradition by the Caen Court of Appeal (4 May 1998).

2. Does customized have the pressure of legislation?

Since the Revolution and the consecration of the precept of felony legality (“No one can be punished except by virtue of a law established and promulgated prior to the offense”), felony legislation has been the duty of Parliament, and of Parliament alone.

Defined as a rule ensuing from basic and extended use, customized can’t, in concept, create, modify or abrogate a felony norm. “But it can be used to interpret the law… Thus, the permission of custom legitimizes the right of parents to moderate manual correction of their children,” write of their Criminal legislation treatise (Cujas, 1997) the jurists Roger Merle and André Vitu.

Provided it’s not opposite to written legislation, customized can due to this fact, on the margin, be a supply of legislation and “retained as a supporting fact” [circonstances qui justifient ou légitiment une infraction, exonérant son auteur de sa responsabilité pénale, NDLR]observes one other professor of felony legislation, Jean-Paul Doucet.

And that is the entire debate raised by the judgment of the Metz Court of Appeal.

3. Is the customized on the parental proper of correction opposite to the legislation?

This is what most attorneys and all youngster protection associations preserve right now.

The Penal Code severely punishes violence towards minors (underneath) 15 years previous, even when it has not resulted in any ITT (whole incapacity for work): the penalty incurred is, on this case, three years' imprisonment and 45,000 euros fantastic. The penalty is elevated when this violence was dedicated by a respectable, pure or adoptive ascendant (one of many mother and father), the penalty then rising to five years of imprisonment.

Criminal legislation is strictly interpreted; we are able to due to this fact contemplate that the customized legitimizing mother and father' proper to appropriate their youngsters, regardless of the type of violence (spanking, slapping, ethical violence and different humiliations, and so forth.), is “contra legem”, opposite to the legislation.

Parental authority is exercised with out bodily or psychological violence (artwork. 371-1 of the Civil Code)

4. Has the legislation definitively buried the customized?

This is what youngster advocates and jurists conscious of this trigger had been hoping for, who applauded with each arms the promulgation, on July 19, 2019, of the legislation “relating to the prohibition of ordinary educational violence”. This textual content, learn right now throughout marriage ceremony ceremonies, was speculated to sound the demise knell for parental proper of correction. “A major step forward,” welcomed Cnape, a federation of kid safety associations.

The legislation – we now have spoken of an “anti-spanking law” – introduces a brand new paragraph to article 371-1 of the Civil Code regarding parental authority. This now states that “parental authority is exercised without physical or psychological violence”.

With delay, France thus stored its worldwide commitments, after having been referred to as to order on a number of events by the Council of Europe, the United Nations Committee on the Rights of the Child but in addition, internally, by the Defender Rights.

In 2015, the European Committee of Social Rights, invoking Article 17 of the European Social Charter, condemned France because of “the absence [dans sa législation] a complete, explicit and effective ban on all corporal punishment of children in family, school and other settings.” Pointing out “an uncertainty as to the existence of a right of correction recognized by the courts [française] », the Council of Europe ordered our country to put in place “provisions that are sufficiently clear, binding and precise so as not to leave the judge the possibility of refusing to apply them”.

Likewise, in 2016, the UN reformulated for the fourth time its request to France to expressly prohibit corporal punishment in all settings (family, school, daycare, health center, etc.), under the International Convention of the Rights of the Child of 1989.

With the law of July 19, 2019, France therefore ended up complying with international law. The new wording of article 371-1 of the Civil Code “will no longer allow case law to hide behind an implicit attribute of parental authority to justify the invocation of a right of correction”, welcomed Marie-Pierre. de La Gontrie, rapporteur of the bill in the Senate, on the day of its adoption – unanimously.

Two years earlier, the lawyer Martine Herzog-Evans had signed a resounding article in the journal Dalloz (“The unworthy “right” to hit children still has a bright future ahead of it”), in which she denounced the odious French “cultural exception”, maintained by means of “legal manipulation” claiming to distinguish “light punishments” and educational” and less light violence. A first reform, defended by Manuel Valls, had just been censored by the Constitutional Council, under conditions that this jurist described in her article as “shameful”. The government wanted to have a paragraph included in the Civil Code stating that the rights of parents would be limited to “the exclusion of any cruel, degrading or humiliating treatment, including any recourse to physical violence”. But the nine wise men had censored the text, for purely formal reasons (decision of January 26, 2017).

The unworthy right to strike still has a bright future ahead of itMs. Herzog-Evans

“Since the legislator clearly prohibited any use of physical violence, jurisprudence would no longer have been able to claim that there existed a customary norm, still present in positive law, authorizing parents to correct their children,” had hoped Mme Herzog-Evans. “The unworthy right to strike still has a bright future ahead of it,” she concluded bitterly, after the censorship of the nine “wise men.”

5. Why is the Metz Court of Appeal resisting?

The judge is the guardian of the law but also of international conventions. The intention of the legislator who, in 2019, had it engraved in stone in the Civil Code that parental authority is exercised “without physical or psychological violence” was clear: it was indeed a question of putting an end to the right to correction.

In an article printed on the Public Senate web site, Senator Marie-Pierre de La Gontrie says she is “shocked” by the choice of the Metz magistrates, which she considers “contrary to the law”. “With the 2019 law, we took a step forward. Today, we feel like we are taking three steps backwards. The term “right of correction” is from one other time. “It’s a terrible step backwards, especially since the facts were established and the man was convicted at first instance,” she denounces.

The Court of Cassation, which till ten years in the past nonetheless clung to this previous customized, is seized of three appeals within the case judged in Metz. It is an understatement to say that its place is anticipated, {that a} clarification of its jurisprudence is hoped for.