The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

                MM C.A NØRGAARD, President

                   J.A. FROWEIN

                   G. JÖRUNDSSON

                   G. TENEKIDES

                   S. TRECHSEL

                   B. KIERNAN

                   A.S. GÖZÜBÜYÜK

                   A. WEITZEL

                   J.C. SOYER

                   H.G. SCHERMERS

                   H. DANELIUS

                   G. BATLINER

                   J. CAMPINOS

               Mrs G.H. THUNE

               Sir Basil HALL

                Mr F. MARTINEZ

                Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 August 1980 by

D.W.A and D.A. against the United Kingdom and registered on 20 October

1980 under file No. 9146/80;

Having regard to:

-       the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

-       the Commission's decision of 11 December 1980 to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on admissibility and merits under

Article 3 (art. 3) of the Convention;

-       the observations submitted by the respondent Government on

1 July 1981 and the observations in reply submitted by the applicants on

12 January 1981;

-       the supplementary observations submitted by the Government on

19 March 1982 and the applicants' observations in reply, as well as

their observations in the light of the Court's judgment in the case of

Campbell and Cosans, submitted on 22 July 1982;

-       the Commission's decision of 14 October 1982 that the

Government should be invited to submit written observations on the

complaints by the first applicant under Article 2, second

sentence, of Protocol No. 1 (P1-2) to the Convention;

-       the observations on these complaints submitted by the

Government on 1 March 1983 together with the observations on the

applicants' reply of 22 July 1982.

-       the Commission's decision of 11 March 1985 to declare the

first applicant's complaint under Article 2 of Protocol No. 1 (P1-2)

to the Convention inadmissible and to adjourn the remainder of the

application;

-       the Commission's decision of 11 March 1985 to declare the

first applicant's complaints under Article 2 of Protocol No. 1

(P1-2) to the Convention inadmissible and to invite the parties to

submit written observations on the issues the application raises under

Article 8 (art. 8) of the Convention;

-       the observations submitted by the Government on 1 May 1985 and

the applicants' observations in reply submitted on 3 October 1985.

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the parties may

be summarised as follows:

The first applicant is a United Kingdom citizen and residing in

Chesterfield, Derbyshire, England.  The second applicant is his son,

who was born in February 1968.  In the proceedings before the

Commission the applicant is represented by Mr. T.M. Napier of

Messrs. Irwin Mitchell & Co., solicitors in Sheffield.

On 3 September 1979 the second applicant became a pupil at Tapton

House School, Chesterfield, Derbyshire.  It appears that he was the

third of the first applicant's children to attend this school.

On 13 September 1979 the second applicant returned from school at the

usual time informing his mother that he had been given two strokes of

the cane in the mid-morning of that day.

With respect to the reasons for the caning the applicants submit that

it was stated by the school that the second applicant was caned

because he had thrown a conker from the 4.00 p.m. bus and that the

conker had hit a lady in her face, breaking her glasses and causing

lacerations.  This incident was said to have happened on the afternoon

before the morning when the caning took place.  The following morning

the second applicant was challenged about the alleged conker throwing

in an interview with a teacher and the deputy headmaster.  The boy

denied the allegations but was not believed and the caning took place

after he had been told that it was "the cane or the police" in his

case.

The Government, however, submit that the second applicant was informed

that he was to be caned for hitting a girl in the face with a conker.

Three other boys were at the same time interviewed about the said

incident.  To the applicants' knowledge two of these boys were also

caned.  The first applicant understands that the parents of one of

these boys were contacted by the school prior to the proposed caning

to see whether they had any objections.  He does not know, on the

other hand, whether the parents of the other boys were consulted

beforehand.  However, he himself was not so consulted, nor was his

wife.

It is submitted that because the second applicant was still unable to

sit down properly and appeared still to be in a certain amount of pain

when he came home, his mother examined the caning marks and was

greatly alarmed by what she saw.  The first applicant claims that he

was himself as alarmed as his wife had been upon seeing his son's

injuries.

The Government, however, submit that the second applicant, after the

caning, was seen to the playing football later in the day, without

apparent ill-effects.

The first applicant and his wife, thereupon, brought their son to the

Accident and Emergency Department at Chesterfield Hospital where he

was examined by the Consultant in charge.  The applicants claim that

the Consultant expressed concern about the force that had been applied

to the second applicant in the punishment he had received.  The

Consultant took photographs of the injuries and recommended that the

matter be reported to the police.  The photos did not turn out

however.  He did not give any medical treatment because there was none

that could usefully be given.  In his medical report of

29 October 1979 the Consultant, inter alia wrote the following:

"On examination there were two marks across the backside.  The centre

of the marks was white but the surrounding area was red. In medical

terminology it showed what is referred to as the triple reaction.  In

measurement the top left mark was 2 3/4", the width 1/4".  The bottom

left was 2 3/4", the right bottom measured 2 1/2", the bottom one

measured 1".  The width was 1/4". attended as

an out patient until 14 September 1979.  When he attended on this date

the marks were already fading.  There was no blistering present.  He

was discharged.

Opinion:  There is no doubt in my mind that these marks are compatible

with the history of the case that they were made with a cane.  As to

the amount of force necessary to cause this type of injury, my opinion

is that there must have been some force used so that the markings were

present.

As to the ultimate prognosis, I feel that these marks should

completely disappear.  When I last saw him on 14 September 1979 they

were already fading."

After leaving the hospital on 13 September the first applicant went

together with his wife and son to the local police station in

Chesterfield to report the incident.  A Detective Constable

immediately took a statement from him and saw the boy's injuries but,

according to the applicants, it has not been possible to obtain a

statement from him to confirm what he saw.  The reason for this is,

allegedly, a letter of 4 March 1980 from the Derbyshire Constabulary

to the applicants' solicitors where it was stated, inter alia, that

"it is agreed policy that interview with police officers will only be

granted on receipt of a Certificate that appearance has been entered

in an action or, in a County Court Case, a Notice of Defence has been

delivered, or, alternatively, after service of a Subpoena." The

applicants also contend that the said Detective Constable advised the

first applicant's wife not to go to the school to complain about what

had happended but that she should leave the matter in the hands of the

police.

On 20 September 1979 a police officer and a sergeant visited the

applicants' home to ask the second applicant some more questions that

had arisen from the investigations they had made.

A few weeks later the first applicant's wife telephoned the police to

find out whether they were going to take action.  She was informed

that the file was with the Police Prosecutions Department for

consideration.  During the following week the aforementioned police

officer and sergeant again visited the first applicant's house and

informed his wife that they were not going to take any criminal

proceedings against the teacher who had caned their son.

On 11 March 1980 the first applicant lodged an application for legal

aid in order "to prosecute an action as father and next friend of his

son" in the County Court for damages for personal injuries received on

13 September 1979.

On 18 June 1980, the application was dismissed by the Local Committee

of the Law Society since the first applicant had not shown that he had

reasonable grounds for taking, defending or being a party to the

proceedings.  The Committee stated furthermore that it did not

consider that the application disclosed any cause of action and "there

was in its view no evidence that this was not a punishment lawfully

and properly carried out".

The first applicant appealed against this decision.  However, on

24 July 1980 this appeal was dismissed by the Area Committee.  The

Committee stated in its decision that it was not satisfied that there

was any reasonable prospect of successfully suing the teacher for the

injury alleged to have been caused to the first applicant's son. There

was no evidence that the punishment was unlawful or unreasonable in

degree.  Furthermore, even if it could be established that the

defendant had acted unlawfully, the amount of damages recoverable

would be too small to justify the cost of legal proceedings.

In a letter of 11 March 1980 to the headmaster of Tapton House School,

the applicants' solicitors stated that a member of his staff had

applied two strokes of the cane to the second applicant on

13 September 1979 and that this amounted to an assault which caused

serious injury because excessive force was used.  Damages were claimed

for the personal injuries sustained by the second applicant as a

result of this assault.

In a letter of 24 March 1980 the first applicant himself also

complained to the Derbyshire County Council regarding the caning of

his son.  It would appear that he also claimed damages.

In his reply of 23 April 1980 the Clerk and Chief Executive of this

council stated as follows:

"After investigation into this matter I am quite satisfied that the

punishment administered by Mr. D. was administered strictly in

accordance with the County Councils Punishment Regulations and that it

was a lawful punishment properly administered for a breach of school

discipline.  There was a witness, the Deputy Headteacher, present when

the punishment was inflicted and it would appear that the force used

was reasonable and moderate, that the punishment was not dictated by

bad motive or temper and that it was carried out by a properly

delegated teacher.  As far as I am aware there is no evidence that the

boy was excessively beaten, he received two strokes of the cane, and

indeed my evidence is that he suffered no discomfort.

I must therefore reject your claim on behalf of the County Council."

COMPLAINTS

The applicants allege that the caning of the second applicant amounts

to a violation of Article 3 (art. 3) of the Convention.

The applicants claim that they were not aware of the contents of

Derbyshire County Council's punishment regulations but insofar as

those regulations allow for the administration of corporal punishment

in schools in Derbyshire they maintain that this amounts to a breach

of the Convention.

In the applicants' view there can be no doubt that the caning of the

second applicant was unjustified.  They submit that he could not have

been responsible for throwing the conker as alleged because he had

stayed behind at school for football practice and had gone home on the

5.40 p.m. service bus instead of the 4.00 p.m. school bus.

The applicants further submit that even if the second applicant had

been responsible for the alleged act, they do not accept that it was

proper for him to be caned as a form of punishment. Moreover, the

force with which the caning was given was excessive and amounted to an

unlawful assault on the second applicant.

As to Article 26 (art. 26) of the Convention

The applicants submit that in the absence of legal aid they were

unable to take civil proceedings against the teacher responsible for

the caning and/or the school and/or Derbyshire County Council. The

same problem also applies to the bringing of a private prosecution

against the responsible teacher in the Magistrates Court.  Therefore,

the applicants lodged a complaint with the Commission.  They consider

that the last decision taken in regard to their case is the letter,

dated 24 July 1980, from the Law Society giving notice of rejection of

their appeal against the decision of the Local Legal Aid Committee.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 August 1980 and registered on

20 October 1980.  On 2 December 1983, counsel informed the Commission

that the first applicant's son, around whom the case revolves, should

also be considered as an applicant.

On 11 December 1980 the Commission decided to bring the application to

the attention of the respondent Government and invited them to submit

their observations on the admissibility and merits of the application

in so far as Article 3 (art. 3) of the Convention was concerned. The

Government were not asked to submit observations on the first

applicant's complaints under Article 2 of Protocol No. 1 (P1-2) to the

Convention, pending the decision of the European Court of Human Rights

in the Campbell and Cosans case.

The Government's observations on the Article 3 (art. 3) issues were

received on 15 July 1981, the applicant's observations in reply on

14 January 1982.

On 17 December 1981 the Commission decided to grant legal aid to the

applicants.

The Government submitted supplementary observations which were

received on 29 March 1982.

The applicant made further submissions in reply as well as in the

light of the Court's judgment in the case of Campbell and Cosans,

which were received on 29 July 1982.

On 14 October 1982, the Commission decided that the Government should

be invited to submit their observations on the complaint made by the

first applicant under Article 2 of Protocol No. 1 (P1-2).

The observations of the Government, as well as their observations on

the applicants' reply of 22 July 1982, were received on 4 March 1983.

On 14 July 1983 the Commission decided to adjourn its examination of

the application pending its consideration of Application No. 9471/81.

On 11 March 1985, the Commission declared the first applicant's

complaints under Article 2 of Protocol No. 1 (P1-2) to the Convention

inadmissible, and adjourned the remainder of the application.

SUBMISSIONS OF THE PARTIES

A.      The Government

The Government explain the organisation of education in England and

Wales and the position of the Derbyshire local education authority

with regard to corporal punishment.

The Government then comment on the facts of the case, as submitted by

the applicants.  As regards admissibility and merits, the Government

first observe that the applicants have not exhausted domestic remedies

as requried by Article 26 (art. 26) of the Convention since both

criminal and civil actions were available.

The Government further submit as follows:

Article 3 (art. 3)

The caning of the second applicant clearly did not amount to "torture"

and the Government assumes that the applicants are not contending that

it did.  As far as "inhuman" treatment or punishment is concerned it

is apparent from the Commission's case law that the treatment or

punishment must be of a particularly severe kind.  Both the Court and

the Commission were of the view that in the Tyrer case (which involved

a judicial birching consisting of three strokes of a birch on the bare

posterior) the suffering did not attain the level appropriate to

"inhuman" treatment or punishment.  In the view of the Government the

pain caused by the corporal punishment of the second applicant could

similarly not have attained the appropriate level.

As far as "degrading" treatment or punishment is concerned, the

ordinary meaning of the word "degrading" is very wide and requires to

be substantially narrowed in the context of Article 3 (art. 3).  If

this were not the case most punishments would be contrary to Article 3

(art. 3) since the fact that a person has been punished for a wrong

doing must inevitably lower a person in the eyes of others or in his

own eyes. This must be true whatever the nature of the punishment.

The Commission and the Court have for these reasons accepted that for

treatment of punishment to be regarded as "degrading" for the purposes

of Article 3 (art. 3), it must reach a certain level or threshold.

This level or threshold was expressed by the Commission in the Greek

case as follows:-

"treatment or punishment of an individual may be said to be degrading

if it grossly humiliates him before others or drives him to act

against his will or conscience."

This view was expressly re-affirmed by the Commission and by the Court

in the Irish State case.

The Court has also considered the matter in the Tyrer case. In its

judgment in that case (para. 30) the Court noted that a person may be

humiliated by the mere fact of being criminally convicted and stated

that what is relevant for the purposes of Article 3 (art. 3) is that

the person in question should be humiliated not simply by his

conviction but by the execution of the punishment which is imposed on

him.  The Court went on to note that "in fact in most if not all cases

this may be one of the effects of the judicial punishment", involving

as it does unwilling subjection to the demands of the penal system and

that -

"it would be absurd to hold that judicial punishment generally, by

reason of its usual and perhaps almost inevitable element of

humiliation is 'degrading' within the meaning of Art. 3 (art. 3).

Some further criterion must be read into the text.  Indeed Art. 3.

(art. 3) by expressly prohibiting 'inhuman' and 'degrading' punishment

implies that there is a distinction between such punishment and

punishment in general."

In the Court's view:-

"in order for punishment to be 'degrading' and in breach of Art. 3

(art. 3), the humiliation or debasement involved must attain a

particular level and must in any event be other than the usual element

of humiliation referred to in the preceding sub-paragraph."

The Court also pointed out that the assessment of the level of

humiliation or debasement:-

"is in the nature of things relative: it depends on all the

circumstances of the case and, in particular, on the nature and

context of the punishment itself and the manner and method of its

execution."

In the submission of the Government, it follows from the findings of

the Commission and the Court referred to in the preceding paragraphs

that punishment cannot in any event be "degrading" for the purposes of

Article 3 (art. 3) if the degree of humiliation resulting from it is

no more that the "usual" and "almost inevitable" element of

humiliation resulting from punishment for a wrong-doing.  It is only

if it exceeds that level by a sufficient margin that it is degrading

for the purposes of Article 3 (art. 3).  The particular level of

humiliation is required to be ascertained in the light of all the

circumstances of the particular case.

In the first instance, the Government submit that the applicants have

not shown that any humiliation resulted from the punishment or that if

any humiliation did result that it exceeded that which is the "usual"

and "almost inevitable" element of humiliation resulting from

punishment for the offending behaviour.  The Government submits that

just as the level of humiliation for the purposes of Article 3

(art. 3) needs to be judged in the light of the circumstances of the

particular case, so does the "usual" and "almost inevitable" element

of humiliation inherent in the punishment in question.  In particular

this must depend upon the seriousness of the act giving rise to the

punishment, the degree of censure which the act requires and, in turn,

the degree of humiliation and disgrace flowing from the censure.

In the present case, it is apparent from the facts that the second

applicant was guilty of serious acts of misconduct involving the risk

of physical injury to another person.  This behaviour cannot possibly

be condoned.  In the submission of the Government, any humiliation and

disgrace suffered by the second applicant would have arisen as a

natural consequence of being punished for his misbehaviour.  The facts

do not suggest that if any other form of punishment had been used

which constituted an appropriate alternative and which would have

brought home to the second applicant the seriousness of his misconduct

(such as suspension from school) the humiliation, if any, suffered by

him would have been any different. The same would be true if the

second applicant had been successfully prosecuted for assault in the

criminal courts as a result of any injuries caused.

Even if the degree of humiliation could be said to be greater by

virtue of the second applicant being caned rather than punished in

some other way, in the submission of the Government the degree of

humiliation cannot be said to have reached the required threshold.

The Court decided in the Tyrer Case that judicial birching constituted

degrading punishment for the purposes of Article 3 (art. 3). However,

in the view of the Government any humiliation suffered by the second

applicant falls far short of that present in the Tyrer case. That case

involved judicial beating - not a punishment inflicted by a person in

loco parentis and particular features not present in this case.

Briefly, these features were the "institutionalised" form of the

punishment - that is

" ... violence permitted by law, ordered by the judicial authorities of

the State and carried out by the Police Authorities of the State ..."

such "institutionalised" form being

" ... further compounded by the whole aura of official procedure

attending the punishment and the fact that those inflicting it were

total strangers to the offender ..."

The Court further found that the "institutional" nature of the

judicial corporal punishment had the further consequence of

introducing an undesirable element of delay into the procedure for

administering the punishment.

As the Court held in the Tyrer case, the question of the degree of

humiliation must be considered in the light of all the facts of the

particular case.  The Government submits that the circumstances of the

caning of the second applicant, considered as a whole, are in no way

comparable with the circumstances of the birching of Mr. Tyrer, and

especially with regard to the particular circumstances of that

birching referred to by the Court.  The punishment of the second

applicant was not an "institutional" form of punishment in the sense

in which that word was used by the Court in the Tyrer case.  It was

not a "judicial" punishment inflicted by the State for a criminal

offence but a punishment inflicted by a person in loco parentis. The

punishment had none of the "aura" of the birching of Mr. Tyrer in

that it was carried out by one teacher in the presence of another both

of whom were permanent members of the teaching staff of the second

applicant's school who were then, and continued to be, known to him.

The caning was not to the bare posterior as in the Tyrer case and

there was no delay, the punishment being carried out almost

immediately after the second applicant had been interviewed and the

offence established.

The Government submit that even if it could be shown that the second

applicant suffered humiliation of a kind to which Article 3 (art. 3)

applies (which has not been done) the humiliation suffered would have

fallen far short of the level required for the purpose of "degrading"

punishment under Article 3 (art. 3).

The Government therefore consider that the second applicant did not

suffer humiliation of a kind to which Article 3 (art. 3) applies and

that even if he did the level of humiliation suffered falls far short

of that required for the purposes of "degrading" punishment under

Article 3 (art. 3).

Article 8 (art. 8)

The Government submit that since the applicants have not sought to

allege violations of this Article (art. 8), their observations are

necessarily of a general nature.  Should the applicants subsequently

choose to allege a violation of Article 8 (art. 8), the Government

would wish to reserve the right to submit observations on the

applicants' submissions.

The Government are of the opinion that the only elements of Article 8

(art. 8) of potential relevance to the facts of this application are

respect for private and family life, and the observations are

accordingly so confined.

Respect for Family Life

The concept of family life in Article 8 (art. 8) was examined by the

Court in its judgment of 13 June 1979 in the Marckx Case (series A

no. 31).  In considering alleged discrimination (on grounds of

illegitimacy) against the child Alexandra Marckx, the Court expressed

the opinion (p. 21, para. 45) that "family life" within the meaning of

Article 8 (art. 8) "includes at least the ties between near relatives,

for instance those between grandparents and grandchildren, since such

relatives may play a considerable part in family life".  In the same

paragraph, the Court went on to say:

"'respect' for a family life so understood implies an obligation for

the State to act in a manner calculated to allow these ties to develop

normally".

In the "Belgian Linguistic" Case (judgment of 23 July 1968, Series A

no. 6, p. 33 para. 7), the Court stated that:

"this provision in no way

guarantees either a right to education or a personal right of parents

relating to the education of their children: its object is essentially

that of protecting the individual against arbitrary interference by

the public authorities in his private or family life".

This is borne out by the number of applications to the Commission

which relate to police or state supervision of one kind or another

(see, for example, the Klass Case (Judgment of 6 September 1978),

Application No. 5879/72 X v. UK and Application No. 8170/78 DR 16

p. 145).

In the case of X, Y and Z v. Sweden (5 EHRR 147), the Commission

examined the compatibility of Swedish domestic legislation prohibiting

corporal punishment with the convictions of the applicant parents that

their children should, in appropriate circumstances, be corporally

punished by their parents.  In rejecting the applicants' complaint

under Article 8 para. 1 (art. 8-1), the Commission stated (at

page 156) that:

" ... the mere fact that legislation, or the state of the law,

intervenes to regulate something which pertains to family life [does

not] constitute a breach of Article 8 (1) (art. 8-1) of the Convention

unless the intervention in question fails to respect the applicants'

right to family life."

In view of the relationship between the applicants and the fact that

they resided together at the material time it would appear beyond

question that they enjoyed a family life within the meaning of

Article 8 (art. 8), and accordingly that they are entitled to have

their right to family life respected.  In the government's submission,

however, assuming this conclusion to be correct, the facts alleged in

the application do not constitute evidence that the Government has

failed to respect any applicant's right under Article 8 (art. 8).

As the quotation above from the Belgian Linguistic case makes clear,

the Article (art. 8) is not concerned with the rights of parents

relating to the education of their children.  These are protected, in

particular by the second sentence of Article 2 of Protocol No. 1

(art. P1-2) to the Convention and in the present case the Commission

has declared the application inadmissible with regard to Article 2

(P1-2). What falls to be considered here, in the Government's

submission, is whether the administration of corporal punishment to

the second applicant amounted to action by the State in such a manner

as to impede or prevent the normal development of ties between him and

his parents.

While there may be disagreement on other questions of fact there is no

dispute that the second applicant received two strokes of the cane of

13 September 1979.  Later that day, accompanied by his parents, he

visited New Beetwell Police Station after attending at Chesterfield

Hospital.  In the Government's respectful submission, it is extremely

difficult to imagine how the administration of this punishment could

have impeded the normal development of ties between the second

applicant and his parents, or for that matter other close relatives.

His parents' prompt and solicitous response would seem, on the

contary, to suggest the strengthening of these ties.  To characterise

the invoking of a normal school disciplinary sanction on one occasion

as interference, let alone arbitrary interference, in the family life

of the second applicant would, in the Government's submission be

misconceived.

Respect for Private Life

In the case of Brüggeman and Scheuten v. Germany (Application

No. 6959/75) the Commission pointed out that the term "private life"

had not been exhaustively defined by the organs of the Convention.

Further, in the case of Van Oosterwijck v. Belgium (Application

No. 7654/76 DR 11 p. 194) the Commission noted the difficulty of

giving a general definition of "respect for private life".  In

Van Oosterwijck's Case, which concerned a trans-sexual, the Commission

repeated the statement made in the Brüggeman and Scheuten Case that

much legislation which affects the individual's capacity to develop

his personality cannot be considered as a whole as infringing the

right to private life.

The theme of the individual's capacity to develop his personality was

taken up by the Commission in the case of Andre Deklerck v. Belgium

(Application No. 8307/78 DR 21 p. 116).  The Commission stated in that

case:

"the scope of the right to respect for private life is such that it

secures to the individual a sphere within which he can freely pursue

the development and fulfilment of his personality.  In principle,

whenever the state enacts rules for the behaviour of the individual

within this sphere, it interferes with the respect for private life".

In the Government's respectful submission, while the concept of

"private life" has not been exhaustively defined by the organs of the

Convention, it is clear from the concepts of "respect" and

"interference" as explained in the jurisprudence of the Commission and

the Court that to constitute a violation of Article 8 (art. 8)

there has to be a substantial and unwarranted involvement in the

victim's private life, and the development and fulfilment of the

victim's personality must be seriously hampered by the State's action.

In the present application, it is submitted that the use of corporal

punishment on one occasion does not constitute lack of respect for, or

interference in, the applicants' respective private lives.  Further,

the Government submit that the "arbitrary" element in interference in

a person's private life is totally lacking in the facts of the two

incidents of punishment with which this application is concerned; such

punishment resulted, and resulted only, from the deliberate acts and

decisions of the persons being punished in contravention of school

discipline.  The powerlessness of the victim implicit in the

expression "interference" is completely, or largely, lacking.  The

Government accordingly reject any suggestion that this application

raises issues under Article 8 (art. 8), or that, if it does, the facts

alleged demonstrate violations of Article 8 (art. 8).

B.      The Applicants

The applicants claim that since the first applicant could not obtain

legal aid he was prevented from taking civil or criminal proceedings

in a domestic court.  Consequently, the applicants are of the opinion

that the requirement of having exhausted domestic remedies under

Article 26 (art. 26) of the Convention has been fulfilled.

Article 3 (art. 3)

The applicants submit that the punishment administered to the second

applicant did amount to degrading treatment within the meaning of

Article 3 (art. 3), because there was an undoubted element of

humiliation that was sufficient to exceed the level required, by

reference to the Irish State case and the Tyrer case.  The Government

refer to the seriousness of the act which gives rise to the punishment

administered, the degree of censure which that act requries, and the

degree of humiliation and disgrace which flows therefrom.  The

applicants point out that there is a dispute on the facts of the case,

and it is emphasised that in any event the act of throwing one conker

was insufficiently serious to require censure in the form of corporal

punishment.  As has been previously stated this fact enhances the

degree of humiliation and disgrace in this particular case.

The Government refer to "serious acts of misconduct", on the

assumption that the second applicant was guilty of more than one

incident of conker throwing, which is incorrect.  The Government refer

only to the "risk" of physical injury to another person, which appears

to be an acceptance of the fact that as claimed by the second

applicant no injury was caused by him to any third party.  The

Government's argument that any humiliation and disgrace suffered by

the second applicant would have arisen as a natural consequence of

being punished for misbehaviour is incorrect.  There were many other

more appropriate forms of censure available to punish the second

applicant for the admitted act of throwing one conker without injury.

After having been a pupil of the school for only ten days a form of

reprimand or detention, or suspension of some form of privilege would

have been appropriate, and would not have involved the inappropriate

humiliation and disgrace which resulted from the second applicant's

caning.  Further, the Commission's attention is drawn to para. 43 of

the judgment of the Court in the Tyrer case, and in particular:-

"The fact that one penalty may be preferable to, or have less adverse

effects or be less serious than another penalty does not of itself

mean that the first penalty is not "degrading" within the meaning of

Art. 3 (art. 3)."

With regard to the degree of humiliation itself in this case, the

applicants refer to the Court's judgment in the Ireland State case,

where it stated in para. 167 that treatment was degrading if it arose

in he victim "fear, anguish and inferiority capable of humiliating and

debasing".  The whole atmosphere of the inquisitorial interview held

prior to the caning was sufficient to produce anguish and fear,

particularly when the second applicant was threatened with "the cane

or the police".  There was a sufficient lapse of time between he

termination of the interview and the commencement of the caning to

increase the second applicant's anxiety and fear, which was increased

even further because he was required to wait in the corridor where he

could hear the caning of the first boy to be punished in the

headmaster's office.  The second applicant was humiliated in the eyes

of the other three boys who were caned, and in the eyes of the persons

who walked past the office whilst the second applicant was waiting

outside in the corridor prior to his caning being carried out.  After

the caning he was humiliated in the eyes of his classmates and friends

all of whom knew that he had been caned.  He was particularly

humiliated in the eyes of his friend who had actually travelled home

with him on the later bus on Wednesday, 12 September, and who was

therefore a witness to his alibi regarding the alleged conker

throwing.  Because the second applicant was under the impression that

he had in fact been caned for the alleged incident on the Wednesday,

and because this friend knew that the second applicant could not

possibly have been guilty of that offence, the humiliation of the

second applicant in the eyes of that friend was increased.

Although the caning in the second applicant's case was not

administered in a judicial set of circumstances as in the Tyrer case,

this does not detract from the degree of degradation and humiliation.

Attention is drawn to para. 33 of the judgment of the Court in that

case:-

"The very nature of judicial corporal punishment is that it involves

one human being inflicting physical violence on another human being

...  Thus, although the second applicant did not suffer any severe or

long lasting physical effects, his punishment whereby he was treated

as an object in the power of the authorities constituted an assault on

precisely that which it is one of the main purposes of Art. 3 (art. 3)

to protect, namely a persons dignity and physical integrity. Neither

can it be excluded that the punishment may have had adverse

psychological effects."

Institutionalised punishment is possible in circumstances other than

those which existed in the Tyrer case.  In fact in the present case

the second applicant's caning was accompanied by many features of

institutionalised punishment.  The caning was administered by a

teacher who was a total stranger to the second applicant, in the

presence of another total stranger.  There was a delay between the

commission of the admitted offence on the Tuesday and the caning on

the Thursday.  There was also a delay between the conclusion of the

interview in the teacher's office prior to break, and the caning

carried out after break.  The caning was administered in an atmosphere

of "official procedure", since a witness was present, and an entry was

made in the punishment book.  Even if it is argued that the teacher

concerned was not a total stranger because he was a member of the

staff of the school which the second applicant had attended for nearly

ten days, a distinction must be drawn between the relationship which

existed between this teacher and the second applicant (teacher and

pupil who were strangers to one another) and the contrasting

relationship which existed between the second applicant's parents and

himself.  The Government cannot claim that the teacher's alleged

status "in loco parentis" was sufficient to overcome the fact that as

far as the second applicant was concerned he was a total stranger. The

fact that the second applicant was not caned on his bare backside is

not conclusive.  In para. 5 of its judgment in the Tyrer case the

Court says:-

"The indignity of having the punishment administered over the bare

posterior aggravated to some extent the degrading character of the

applicant's punishment but it was not the only or determining factor."

As was emphasised by the Court in the Tyrer case judgment para. 31:-

"It is never permissible to have recourse to punishments which are

contrary to Art. 3 (art. 3), whatever their deterrent effect may be

... in the case now before it the Court cannot but be influenced by

the developments and commonly accepted standards in the penal policy

of the member States of the Council of Europe in this field."

The applicants emphasise that corporal punishment in schools has been

abolished by all the member States of the Council of Europe except the

United Kingdom.

So far the applicants have made no specific reference to the

instrument that was used to cane the second applicant.  Any such

comment is not possible until the cane, or a similar one, is actually

seen.  It should not therefore be assumed that the first applicant

necessarily accepts that the instrument used on his son was an

"appropriate" instrument.  Indeed, the applicants' case is that the

use of the cane which is designed to cause wheals and bruises as

occurred in this case cannot be other than an inappropriate

instrument.

Article 8 (art. 8)

The applicants submit that the issues raised under Article 8 (art. 8)

by the present application go beyond the right to respect for family

life and include the right to respect for home.  The applicants refer

to the case-law developed by the Commission and Court and submit that

the very existence of corporal punishment, the circumstances

surrounding its administration and its after-effects punishment do

entail grave disturbances in private or family life which are capable

of permeating directly into the home.

The applicants submit that as a result of the administration of

corporal punishment, a series of abnormal events took place in the

life of the second applicant, including a visit to the police station,

examination by a doctor, visits to a solicitor's office, media

coverage of the dispute and an element of notoriety amongst his, and

his parents', peer groups.  The applicants have further referred to

the time off school, the awareness of a conflict between his father

and the principal of the school, and the fact that the second

applicant has gone through the majority of his secondary school life

with a pending case before the Commission against the United Kingdom

in respect of the issue of corporal punishment.

It is submitted that the facts of the case reveal an arbitrary

interference, which cannot be justified under the terms of the second

paragaraph of Article 8 (art. 8).

THE LAW

1.      The applicants have alleged that the corporal punishment of

the second applicant amounted to a violation of Article 3 (art. 3)

of the Convention, which reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government have submitted that the applicants have not exhausted

domestic remedies as required by Article 26 (art. 26) of the Convention.

The Commission is of the opinion that it does not need to decide

whether the applicants can be said to have exhausted domestic

remedies, since Article 26 (art. 26) of the Convention also provides

that the Commission "may only deal with the matter ... within a period

of six months from the date on which the final decision was taken".

According to the Commission's case-law, where no domestic remedy is

available, the six months' period runs from the act alleged to

constitute a violation of the Convention, unless there is a continuing

situation, in which case the six months' period runs from the end of

that situation (c.f. No. 6852/74, Dec. 5.12.75, DR 15, p. 5).

The Commission considers that the actual caning of the second

applicant cannot be said to constitute a continuing situation.

Consequently the date to be taken into account is 13 September 1979,

whereas the application was introduced on 28 August 1980, that is more

than six months after the date of the act complained of.

It follows that this part of the application has been introduced out

of time and must be rejected under Article 27 para. 3 (art. 27-3)

of the Convention.

2.      The applicants have further complained that the caning of the

second applicant constituted interference with their right to respect

for their private and family life, and their home, contrary to

Article 8 (art. 8) of the Convention, which provides:

"1.  Everyone has the right to respect for his private and family

life, his home and his correspondence."

2.   There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law

and necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health of

morals, or for the protection of the rights and freedoms of others."

The Government have submitted that the use of corporal punishment did

not constitute an interference with the respect for either the private

or the family lives of the applicants.

The Commission is of the opinion that the applicants' complaints under

Article 8 (art. 8) of the Convention do not concern a continuing

situation. Consequently, this part of the application must also be

considered as having been introduced out of time and must be rejected

under Article 27 para. 3 (art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)