Lexploria

In the case of Y v. the United Kingdom*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court, as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr R. Macdonald,

Mr F. Bigi,

Sir John Freeland,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 September and

28 October 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 91/1991/343/416. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 7 December 1991, within the

three-month period laid down in Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 14229/88) against the United Kingdom of Great

Britain and Northern Ireland lodged with the Commission under

Article 25 (art. 25) on 2 September 1986 by two British citizens,

Mrs X and her son Y. The expression "the applicant" hereinafter

designates Y, his mother's complaints having been declared

inadmissible by the Commission (see paragraph 13 below).

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United

Kingdom recognised the compulsory jurisdiction of the Court

(Article 46) (art. 46). The object of the request was to obtain a

decision as to whether the facts of the case disclosed a breach by

the respondent State of its obligations under Articles 3, 8 and 13

(art. 3, art. 8, art. 13) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyers

who would represent him (Rule 30).

3. On 24 January 1992 the President of the Court decided that,

pursuant to Rule 21 para. 6 and in the interests of the proper

administration of justice, this case and the case of

Costello-Roberts v. the United Kingdom* should be heard by the same

Chamber.

_______________

* Case no. 89/1991/341/414.

_______________

4. The Chamber to be constituted for this purpose included ex

officio Sir John Freeland, the elected judge of British nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 24 January 1992

the President drew by lot, in the presence of the Registrar, the

names of the other seven members, namely Mr J. Cremona,

Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr R. Macdonald,

Mr R. Bernhardt, Mr F. Bigi and Mr L. Wildhaber (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43). Subsequently

Mr F. Matscher, substitute judge, replaced Mr Cremona, whose term

of office had expired and whose successor had taken up his duties

before the hearing (Rules 2 para. 3 and 22 para. 1).

5. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Government of the United Kingdom ("the Government"), the

Delegate of the Commission and the applicant's representative on

the organisation of the procedure (Rules 37 para. 1 and 38). In

accordance with the order made in consequence, the Registrar

received, on 23 June 1992, the applicant's memorial and, on

22 July, the Government's. By letter of 17 August 1992, the

Secretary to the Commission informed him that the Delegate would

submit his observations at the hearing.

6. Attempts to reach a friendly settlement gave rise, between

10 February and 18 September 1992, to a series of letters and

telephone conversations between the Government, the applicant's

solicitors and the Registrar.

7. On 9 and 21 September 1992 the Government and the applicant's

solicitors informed the Registrar of the terms of settlement agreed

between them.

The Delegate of the Commission was consulted (Rule 49 para. 2)

and submitted his observations on 21 September 1992.

8. On 25 September the Court decided to dispense with a hearing

in the case, having satisfied itself that the conditions for this

derogation from its usual procedure had been met (Rules 26 and 38).

9. By letter of 17 September, a federation of non-governmental

organisations, Epoch Worldwide, had requested leave to submit

written comments pursuant to Rule 37 para. 2 on the appropriateness

or otherwise of striking this case out of the list. The President

refused to grant such leave on 6 October.

AS TO THE FACTS

10. In 1983, Y, then aged fifteen, was a day pupil at an

independent school in England. On 29 September he was knocked to

the floor at the school by a fellow pupil who was chasing a younger

boy. On the morning of the following day the applicant defaced the

cover of the fellow pupil's file. He was sent for punishment to

the headmaster who caned him four times on his bottom through his

trousers.

11. On his return from school at about 5.45 p.m., Y's sister

noticed his injuries and drew their mother's attention to them.

She took him straight to the family doctor who found that he had

four wheals across both buttocks, each wheal approximately 15cm in

length and 1.23cm in width. There was heavy bruising and swelling

of both buttocks. The doctor prescribed appropriate treatment and

suggested that if the applicant's parents wished to pursue the

matter, they should show the injuries to the headmaster and to the

police that evening, which they duly did.

12. The police initially advised that the injuries amounted to

evidence of assault occasioning actual bodily harm, but after

further investigation decided not to prosecute the headmaster. The

parents then initiated civil proceedings in the County Court

claiming, inter alia, damages for assault.

On 28 July 1986 the County Court judge rejected the claims.

He held that the parents had entered into a binding contract with

the school in which it had been agreed that the school was

authorised to cane pupils as a disciplinary punishment. The force

used in such punishment, which would inevitably leave marks and

bruising, had nevertheless to be reasonable. He found nothing

unusual or excessive in the caning and considered that the parents

had overreacted to the incident.

The parents did not appeal against the County Court decision

as they were advised by counsel that such an appeal had no

prospects of success.

PROCEEDINGS BEFORE THE COMMISSION

13. In their application (no. 14229/88) lodged with the Commission

on 2 September 1986, Mrs X and her son Y contended that his

corporal punishment constituted a breach of Article 3 (art. 3) of

the Convention and also violated the right of each of them to

respect for her or his private and family life guaranteed by

Article 8 (art. 8). In addition, they alleged that, contrary to

Article 13 (art. 13), they had no effective domestic remedies for

these Convention complaints. An original complaint under

Article 14 (art. 14) was subsequently withdrawn.

On 13 December 1990 the Commission declared the mother's

complaints inadmissible and the son's admissible. In its report of

8 October 1991 (drawn up in accordance with Article 31) (art. 31),

the Commission expressed the opinion, by eleven votes to two, that

there had been a violation of Articles 3 and 13 (art. 3, art. 13),

and that no separate issue arose under Article 8 (art. 8). The

full text of the Commission's opinion and of the three separate

opinions contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 247-A

of Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

AS TO THE LAW

14. The Registrar of the Court was notified on 9 September 1992 by

the Government that the applicant had accepted the following

proposals for a friendly settlement:

"Without any admission by the Government that a breach of the

Convention has occurred and on condition that the case is

withdrawn from the Court and no further cases are instituted

against the Government in respect of this matter in any

national or international court, the Government propose to:

1. pay the applicant £8,000;

2. pay the applicant's costs, namely

(a) County Court proceedings £4,516.38 plus interest

(b) Solicitors' fees £2,750 plus VAT

(c) Counsel's fees £1,000 plus VAT

(d) Mr Rosenbaum [an adviser]'s fees £750 plus VAT

provided that itemised bills are produced and the rate of

interest is indicated so that the amounts claimed can be

looked at by the Treasury Solicitors Costs Branch."

15. Acceptance of these proposals was confirmed by the applicant's

solicitors in a letter received by the registry on 21 September.

Payment in accordance with the agreed terms has since been made by

the Government.

16. The Delegate of the Commission was consulted in accordance

with Rule 49 para. 2 and on 21 September the Secretary to the

Commission submitted the following comments:

"I am instructed by the Delegate to inform you that it is with

some surprise and regret that he learns that Y is

contemplating a mere financial settlement of his case at such

a late stage in the proceedings. Y's case is the more

impressive of the two applications concerning private school

corporal punishment and clearly demonstrates the inadequacy of

the civil remedy for treatment which, in the Commission's

view, was in breach of Article 3 (art. 3) of the Convention.

However, it is fair to say that part of the general interest

raised by the Y application is maintained in the

Costello-Roberts case, particularly the question of State

responsibility for an act of a private school headmaster which

is allegedly in breach of the Convention. Moreover it is

understandable that Y wishes to put an end to these matters

after so many years have gone by, his school days being far

behind him. The Government's offer seems reasonable and it is

quite normal that Y does not wish to ignore it.

The Delegate therefore concludes, albeit reluctantly, that he

has no formal objection to make should the Court, in its

wisdom, decide to endorse the settlement and strike the case

off its list."

17. The Court takes formal note of the friendly settlement reached

by the Government and the applicant. It discerns no reason of

public policy (ordre public) why the case should not be struck out

of the list (Rule 49 paras. 2 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

29 October 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

Menu

CASE OF Y v. THE UNITED KINGDOM

CASE OF Y v. THE UNITED KINGDOM