CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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". <The second applicant> 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 <i.e. Article 8 para. 1 (art. 8-1)> 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)