THE FACTS

The facts of the case may be summarised as follows:

The first applicant is a United Kingdom citizen, born in 1957 and

resident at C., Isle of Man. The second applicant was born in 1956. He

is equally a United Kingdom citizen and resident at C. on the Isle of

Man. Both applicants are represented by Mr. G., Legal Officer of the

National Council of Civil Liberties, who is acting under authorities

from the applicants,dated 5 and 6 September 1972 respectively. The

applicants' parents have given their consent to the bringing of the

applications.

From the statements submitted by the applicants it appears that on ..

March 1972 they pleaded guilty at C. Juvenile Court, Isle of Man, to

unlawful assault occasioning actual bodily harm to one M., a prefect

at R.in C., contrary to Section 60 of the Criminal Code 1872. On the

same day they were sentenced to strokes of the birch under Sections 8

and 10 of the Summary Jurisdiction Act 1960 (Isle of Man, the first

applicant to five strokes and the second applicant to three strokes.

Only the second applicant appealed against his sentence to the Staff

of Government Division at the Manx Court of Criminal Appeal. The appeal

was heard on .. April 1972 and the Court, after having ordered the

applicant's medical examination, dismissed the appeal on the same day.

The Court found that the attack on the prefect, who had reported the

applicants to the headmaster for taking beer into school, had been very

serious and that the sentence was lawful, no question having been

raised as to its legality.

The first applicant stated that he did not challenge his sentence as

an appeal did not stand much chance of success, his elder brother

already having been birched two years earlier.

On .. March 1972 the first applicant received three strokes of the

birch, the police doctor examined him and advised the giving of three

strokes only. The second applicant received three strokes on .. April

1972. Doctors were present at both birchings.

Complaints

The applicants' complaints were directed against Section 8 of the

Summary Jurisdiction Act 1960 (Isle of Man) as well as other sections

of the Act and other legislation in force in the United Kingdom, its

Islands, Colonies or other territories or possessions to which the

Convention applies.

They complained in particular, that

- The corporal punishment imposed on them constituted degrading

  treatment within the meaning of Article 3 of the Convention;

- such punishment was destructive of family well-being and therefore

  contrary to Article 8 of the Convention;

- no remedies existed to rectify the violation which was inconsistent

  with Article 13 of the Convention;

- the punishment was discriminatory within the meaning of Article 14

  of the Convention in that it was primarily pronounced on persons from

  financially and socially deprived homes;

- the violation of Article 3 of the Convention also constituted a

  violation of Article 1 of the Convention.

The first applicant also alleged a violation of Article 6 of the

Convention but did not give any particulars in this respect. This

applicant further submitted that Article 26 was not applicable in his

case, the scope of which was to determine the compatibility with the

Convention of legislative measures and judicial practices in the Isle

of Man. He referred in this respect to Application No. 176/56

(Yearbook, Vol. 2, pp. 174, 184). Furthermore, the undoubtedly lawful

sentence was per se degrading treatment contrary to Article 3 against

which no remedy could be available, and an appeal against sentence

would, in this case, have been no more than an appeal for clemency

which was not a remedy to be exhausted under Article 26 (cf.Application

No. 458/59, Yearbook, Vol. 3, p. 234). Apart from this, an appeal would

have been ineffective, as evidenced by the unsuccessful appeal of the

second applicant and in view of the fact that there were no special

circumstances justifying a higher court's interference with corporal

punishment. Furthermore, the applicant did not wish to prolong the

profound mental agony on him and his family occasioned by the delay

until the "birching" would have been administered.

Both applicants claimed damages as well as repeal of the legislation

concerned. They requested that their applications should be joined.

Proceedings before the Commission

The Commission examined the applications on 19 December 1973 and

decided that they should be joined in accordance with Rule 39 of its

Rules of Procedure . It further decided that, in accordance with Rule

46, 2 b) of the Rules of Procedure, notice should be given to the

Government of the United Kingdom of the applications and that the

Government should be invited to submit their observations in writing

on the admissibility of the issues under Articles 3 and 14 of the

Convention arising in these applications. The Commission considered

that it did not require observations in regard to the applicants

complaints under Articles 1, 8 and 13 of the Convention.

The Government submitted their observations on 24 April 1974 and the

applicants' lawyer replied on 10 June 1974.

Submissions of the Parties

1.   The respondent Government submitted that the whole of the first

applicant's application No. 5775/72 was inadmissible for non-exhaustion

of domestic remedies and that the applications were manifestly

ill-founded on the issue raised under Article 14 of the Convention. On

the other hand, the Government did not wish to contest the

admissibility of the question whether the punishment by birching

inflicted on the applicants constituted degrading treatment within the

meaning of Article 3 of the Convention, but reserved their position in

this respect to the proceedings on the merits.

Explaining their position in the case the Government first gave an

outline of the relevant constitutional law and practice. The Isle of

Man was not a part of the United Kingdom, but a dependency of the Crown

with its own legislative assembly, courts of law and administrative and

fiscal systems. However, the United Kingdom Government were responsible

for the Island's defence and international relations and the Crown

acted through the Privy Council on the recommendation of Ministers of

the United Kingdom Government in their capacity as Privy Counsellors.

The Home Secretary was the Privy Counsellor charged with prime

responsibility for Island affairs.

The legislative assembly of the Isle of Man was the Court of Tynwald.

It consisted of the Lieutenant Governor who was appointed by, and was

the representative of the Crown, of 24 members elected by adult

universal suffrage constituting the House of Keys, and of seven members

elected by the House of Keys who, with three ex-officio members,

constituted the Legislative Council. The Court of Tynwald legislated

for the Island in domestic matters, such legislation requiring

ratification by Her Majesty in Council. It was the responsibility of

the Home Secretary to advise the Privy Council in each instance whether

or not to recommend to Her Majesty that an Island law should be

ratified.

The United Kingdom Parliament had power to legislate for the Isle of

Man but not use that power, in the ordinary course, without the

concurrence of the Isle of Man Government, in respect of matters which

were entirely domestic to the Isle of Man.

The Government next set out the relevant penal law and practice on the

Isle of Man (see Annex) as well as the facts of the case as they have

been stated above.

As regards the admissibility of the applications the Government

maintained that no evidence had been put forward in support of the

contention that corporal punishment was primarily pronounced on persons

from financially and socially deprived homes and that Article 14 of the

Convention was therefore violated. Moreover, there was no ground for

supposing that sentences imposing corporal punishment have in any way

been influenced by considerations of social origin, or by any of the

other considerations declared by Article 14 of the Convention to

constitute discrimination.

Finally, as regards Article 26 of the Convention which the respondent

Government invoked in respect of the first applicant's application, it

was submitted that this applicant had failed to exercise his right to

appeal against his sentence to the Staff of Government Division of the

High Court of Justice of the Isle of Man. The requirement of Article

26 was in mandatory terms, and the Commission had frequently held that

the possibility, or even likelihood, of an appeal being unsuccessful,

was not a valid reason for failing to exhaust the remedies (cf.

Application No. 2257/64, Yearbook, Vol. 11, p. 180 and Application No.

3485/68, Yearbook, Vol. 12, p. 288).

2.   The applicants, in their reply, first withdrew their applications

in respect of the issue raised under Article 14 of the Convention.

Furthermore, since the admissibility of the second applicant's

application was conceded by the respondent Government, the further

observations referred only to the first applicant's case and to the

question of exhaustion of domestic remedies in accordance with Article

26 of the Convention.

The Commission had always recognised that an exception to the general

rule contained in Article 26 was made where the remedy available was

not an effective remedy and in respect of "special circumstances which

might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at his disposal" (cf. Application No. 3485/68, loc. cit.). The

applicant maintained that in his case appeal to the Staff of Government

Division would not have been an effective remedy or, in the

alternative, the special facts of his case absolved him from the

necessity of pursuing this particular remedy. Referring also to his

previous submissions he pointed out, in particular, that

- the second applicant had pursued such an appeal and failed;

- there were no special circumstances why the first applicant should

  have received more favourable treatment on appeal;

- indeed, the trial court had considered the first applicant to be the

  ringleader so that no appeal court could have taken a lighter view

  of the acts of the first applicant than was taken of those of the

  second applicant;

- the first applicant was therefore faced with the impossibility of a

  successful appeal;

- furthermore, this application concerned a judicially and

  legislatively sanctioned administrative practice and as such fell

  outside the restrictions of Article 26 of the Convention.

The Commission was therefore urged to declare both applications

admissible with respect to the issues raised under Article 3 of the

Convention.

THE LAW

1. Both applicants have withdrawn their applications in respect of the

issue raised by them under Article 14 (Art. 14) of the Convention,

namely that their punishment was discriminatory within the meaning of

that provision in that it was primarily pronounced on persons from

financially and socially deprived homes.

The Commission observes that there are no reasons of a general

character affecting the observance of the Convention which would

necessitate a further examination of these complaints. It therefore

decides not to proceed with the examination of these parts of the

applications which have been with drawn by the applicant.

2. The Commission has next considered the remainder of the first

applicant's application (No. 5775/72) in which he complained that the

corporal punishment imposed on him and the circumstances connected

therewith constituted breaches of Articles 1, 3, 6, 8 and 13

(Art. 1, 3, 6, 8, 13) of the Convention.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of these provisions as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case it is uncontested that this applicant failed to

appeal against his sentence to the staff of Government Division of the

High Court of Justice of the Isle of Man in accordance with Section 1

of the Summary Jurisdiction Act 1956 (Isle of Man). He has, therefore,

not exhausted the remedies available to him under the domestic law.

Moreover, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at this disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and the remainder of his

application must be rejected under Article 27 (3) (Art. 27-3), of the

Convention.

3. The Commission has then considered the remainder of the second

applicant's application (No. 5856/72) concerning his punishment by

birching to which he was sentenced by the C. Juvenile Court, Isle of

Man. This sentence was confirmed on appeal by the Staff of Government

Division at the Manx Court of Criminal Appeal, Isle of Man.

a) In this connection the applicant has first complained that the

corporal punishment imposed on him constituted a breach of Article 3

(Art. 3) of the Convention.

The respondent Government have not contested the admissibility of this

part of the application, but have reserved to the proceedings on the

merits their position as to whether or not the punishment inflicted on

the applicant constituted treatment contrary to Article 3 (Art. 3) of

the Convention.

Article 3 (Art. 3) protects everyone against "torture or inhuman or

degrading treatment or punishment" and the Commission considers that

the question of corporal punishment raises as such an issue under that

provision. The Commission has further considered ex officio that,

insofar as the Summary Jurisdiction Act 1960 (Isle of Man) provides for

such punishment only with regard to male children and male young

persons, issues arise as to whether or not this constitutes

discrimination on grounds of sex and/or age, contrary to Article 14

(Art. 14) of the Convention, read in conjunction with Article 3

(Art. 3).

b) This applicant has further complained that the violation of Article

3 (Art. 3) also constituted a violation of Article 1 (Art. 1) of the

Convention; that such punishment was destructive of family well-being

and therefore contrary to Article 8 (Art. 8) of the Convention; and

that no remedies existed to rectify the violations, which was

inconsistent with Article 13 (Art. 13) of the Convention. However, the

Commission finds that there is no such substance in these allegations.

Insofar as Article 1 (Art. 1) of the Convention is concerned, the

applicant, having alleged breaches of Section I of the Convention, has

not shown any reason for a separate consideration of Article 1

(Art. 1).

Insofar as Article 8 (Art. 8) of the Convention is concerned, it is

true that this provision protects, subject to certain limitations,

everyone's right to respect for his private and family life, his home

and his correspondence. However, an examination by the Commission of

this complaint as it has been submitted does not disclose any

appearance of a violation of the above rights and freedoms in the

present case.

Finally, insofar as Article 13 (Art. 13) of the Convention is

concerned, this Article provides that everyone "whose rights and

freedoms as set forth in this Convention are violated shall have an

effective remedy before a national authority notwithstanding that the

violation has been committed by persons acting in an official

capacity". Therefore, insofar as this application is inadmissible,

there is no basis for the application of Article 13 (Art. 13).

On the other hand, insofar as the application is admissible, and even

assuming that a violation of Article 3 (Art. 3) of the Convention

either alone or read in conjunction with Article 14 (Art. 14) can

eventually be established by the applicant, the Commission notes that

his case has in fact been heard by an appeal tribunal which dealt with

the question of his sentence, Article 13 (Art. 13) has therefore been

satisfied.

It follows that these parts of the application are manifestly

ill-founded and must be rejected in accordance with Article 27,

paragraph (2) (Art. 27-2), of the Convention.

For these reasons the Commission

1.   DECIDES NOT TO PROCEED FURTHER with an examination of both

applicants' complaints under Article 14 (Art. 14) of the Convention as

they have been formulated by them and withdrawn.

2.   DECLARES INADMISSIBLE the remainder of Application No. 5775/72.

3.   DECLARES ADMISSIBLE and retains, without in any way prejudging

their merits, those parts of Application No. 5856/72 which raise issues

under Article 3 (Art. 3) of the Convention, either alone or in

conjunction with Article 14 (Art. 14).

4.   DECLARES INADMISSIBLE the remainder of Application No. 5856/72.