JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, THÓR VILHJÁLMSSON, MATSCHER AND WILDHABER

We agree with the majority that the United Kingdom may indeed incur responsibility under the Convention on account of the administration of corporal punishment in independent schools. Primary education is compulsory in the United Kingdom as elsewhere. In such fields, the State must exercise some measure of control over private schools so as to safeguard the essence of the Convention guarantees. A State can neither shift prison administration to the private sector and thereby make corporal punishment in prisons lawful, nor can it permit the setting up of a system of private schools which are run irrespective of Convention guarantees. On the other hand, it is granted that the Convention is not applicable as such in all respects to relations between private persons. It therefore becomes a matter of balancing whether and to what extent private schools must respect Convention guarantees, in particular Articles 3 and 8 (art. 3, art. 8).

We also accept that in the circumstances of this case Article 3 (art. 3) is the first point of reference for examining a case concerning disciplinary measures in a school. Accordingly, the protection afforded by Article 8 (art. 8) to the applicant ’ s physical integrity is not wider than that contemplated by Article 3 (art. 3).

However, in the present case, the ritualised character of the corporal punishment is striking. After a three-day gap, the headmaster of the school "whacked" a lonely and insecure 7-year-old boy. A spanking on the spur of the moment might have been permissible, but in our view, the official and formalised nature of the punishment meted out, without adequate consent of the mother, was degrading to the applicant and violated Article 3 (art. 3).

At the relevant time the laws relating to corporal punishment applied to all pupils in both State and independent schools in the United Kingdom . However, reflecting developments throughout Europe , such punishment was made unlawful for pupils in State and certain independent schools. Given that such punishment was being progressively outlawed elsewhere, it must have appeared all the more degrading to those remaining pupils in independent schools whose disciplinary regimes persisted in punishing their pupils in this way.

We might add that the child ’ s rights under Article 3 (art. 3) are not diminished by balancing them against the mother ’ s rights. The parents of the boarders in Barnstaple were not adequately informed that corporal punishment was used in order to maintain discipline.

CONCURRING OPINION OF JUDGE SIR JOHN FREELAND

I have joined in voting for the findings of non-violation of the Convention. So far as Article 3 and Article 8 (art. 3, art. 8) are concerned, this is essentially because, whatever view may be taken on the general question of the acceptability in principle, by contemporary standards, of continued toleration of corporal punishment as a disciplinary sanction in part, but not all, of the English school system, that was not the question before the Court; and I have not been satisfied that, in its own particular circumstances, the nature, purpose and effects of the punishment administered to Jeremy Costello-Roberts were sufficient to bring it within what is in my view the true scope of the protection afforded by either Article (art. 3, art. 8). But it must be evident, if only from the division of opinion in the Court, that the case is at or near the borderline; and I, for my part, would emphasise the Court ’ s expression of misgivings in the penultimate sentence of paragraph 32 of the judgment and its wish, as stated in the last sentence of paragraph 36, not "to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school".

[*]  The case is numbered 89/1991/341/414.  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 .

[*]  Case no. 91/1991/343/416

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 247-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.