Interim Resolution ResDH (2004)39

concerning the judgment of the European Court of Human Rights

of 23 September 1998

in the case of A. against the United Kingdom

(Adopted by the Committee of Ministers on 2 June 2004 at the 885th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of A. against the United Kingdom, delivered on 23 September 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the undertaking of the High Contracting Parties to abide by the Court’s judgments in accordance with this provision implies, inter alia , an obligation to take general measures in order to prevent effectively new violations of the Convention similar to those found in the Court’s judgments;

Having invited the Government of the United Kingdom to inform it of the measures taken in consequence of the judgment;

Recalling that the case involved the acquittal, on the basis of the defence of reasonable chastisement, of a man charged with assault occasioning actual bodily harm after having beaten his nine-year-old stepson with a garden cane, which had been applied with considerable force on more than one occasion;

Recalling also that the Court, in its judgment, considered that treatment of this kind reaches the level of severity prohibited by Article 3, emphasised that children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against ill treatment in breach of Article 3 of the Convention, found that the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3 and held that the failure to provide adequate protection constituted a violation of Article 3 of the Convention;

Having regard to the fact that, before the Court, the United Kingdom admitted that there had been a violation of Article 3 of the Convention and committed itself to amending its domestic law to ensure that the corporal punishment of children would be unlawful under domestic law if it breached the standards required by the Article 3 of the Convention;

Noting that, upon the coming into force of the Human Rights Act 1998 on 2 October 2000, the Convention rights became directly applicable by domestic courts in cases of alleged violations of the Convention arising after that date;

Noting also that, subsequently, the Court of Appeal found in its judgment of 25 April 2001 in the case of R v H that domestic courts were now obliged to take account of the criteria applied by the European Court of Human Rights in determining whether certain treatment falls within the scope of treatment prohibited by Article 3 of the Convention, and that this judgment has been reported in a number of law reports;

Recalling that the case involved acquittal of a father who had admitted hitting his four and a half year old son across the back with a belt, several times, causing bruising, as a punishment for refusing to write his name;

Having been informed by the United Kingdom authorities that, in the light of the coming into force of the Human Rights Act 1998 and of the aforementioned decision of the Court of Appeal, they do not intend to legislate on this matter and consider that the current state of the law in the United Kingdom complies with the Court’s judgment in the present case;

Noting in this context that the possibility for criminal liability to be extended through case-law has been recognised by the European Court of Human Rights, provided that such developments occur in accordance with the requirements of the Convention;

Considering, however, that a debate has arisen as to whether the application of the criteria enunciated by the Court of Appeal by the domestic courts in the case of R v H itself and in subsequent case-law clearly demonstrates that the corporal punishment of children in breach of the standards required by the Article 3 of the Convention is now unlawful under domestic law in the United Kingdom, or whether this fact has been effectively brought to the knowledge of the public so as to achieve the necessary deterrence;

Considering, therefore, that it is not at present able to conclude whether United Kingdom law complies with this judgment;

DECIDES to resume its consideration of the present case at a forthcoming meeting not later than 12 months hence, in the light of the measures taken to date and any further developments.