CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1988

.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 }    AS TO THE ADMISSIBILITY OF       Application No. 12937/87 by Maureen and Duncan AMPLEFORD against the United Kingdom             The European Commission of Human Rights sitting in private on 8 September 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   J. RAYMOND, Deputy Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 14 July 1986 by by Maureen and Duncan AMPLEFORD against the United Kingdom and registered on 30 April 1987 under file No. 12937/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants, United Kingdom citizens, are a mother and son living in London.   They are represented before the Commission by Messrs.   Binks Stern and Partners, solicitors of London.   The facts of their case, as submitted by their representatives, may be summarised as follows:           The second applicant was born on 14 April 1975.   At the relevant time, he attended, as a boarder, an independent school in Sussex.           On 2 October 1985 at about 7:30 p.m. the second applicant was sitting with other boys doing homework in a classroom.   He was crying because he was homesick.   The headmaster entered the room and walked over to the second applicant's desk and shouted at him, "Shut up, shut up".   The headmaster took hold of the boy's shirt collar and pulled him over the desk and hit him on the bottom through his shorts with his bare hands.   The headmaster then returned him to his seat and shouted at him again, "Shut up, shut up".   He then hit the second applicant over the head with the exercise book he was working from. The headmaster sat in the room a further five minutes watching and then left.           On 5 October 1985 the second applicant was sitting with two other boys watching television when the headmaster walked in and said to him in a soft voice, "Come here".   He followed the headmaster to the headmaster's bedroom.   Once they had both entered, the headmaster shut the door and locked it with a bolt.   He then accused the second applicant of copying from another boy's Latin book, which he denied. The headmaster then said to him, "You know what's going to happen to you, don't you?"   He replied, "Yes, sir", anticipating a beating.           The headmaster took down the second applicant's shorts and underpants and put him across his knee and hit him six times on his bare bottom with his bare hand.   The other hand was placed on his back.   Afterwards the second applicant was crying and the headmaster said to him, "It serves you right".   The second applicant pulled up his underpants and shorts and the headmaster sat him on his knee and for several minutes rubbed his bottom and cuddled him.   There was a knock at the door and the headmaster opened it and spoke to two older boys for a few minutes.   After they had gone he told the second applicant, "Forget about it; forget about it".           The second applicant left the room and later showered.   Three friends noticed the red marks on his bottom; the marks stayed for nearly a week.           Within a few days after the beating the second applicant wrote to the first applicant asking her to take him away from school.   The boy was removed from the school a few weeks later, apparently by the end of the school term in December.           On 12 December 1985 the second applicant made a statement to the police and there was a subsequent police investigation involving the interview of a number of pupils at the school.   The applicants wrote to the Commission on 14 July 1986 stating that they intended to lodge an application with the Commission in respect of the corporal punishment inflicted on the second applicant.   They stated they would do this as soon as the police confirmed that they would not be charging the headmaster with any offence in relation to the second applicant.   Charges were brought by the police against the headmaster for assault but none of these charges related to any incident involving the second applicant.   The Sussex Police wrote to the applicants on 24 June 1986 stating that on or about 30 April 1986 the Chief Prosecution Solicitor had decided not to proceed with charges in connection with the boy's beating.   However the police stated in this letter as follows:           " ... our Counsel may wish to make use of the evidence which         we accrued in relation to <the second applicant> when         presenting the case at Crown Court and indeed he may make         a decision to add further counts to the indictment.   You         will, therefore, appreciate that we cannot say that no         prosecution or action is being brought against <the         headmaster> concerning <the second applicant> until after         the final hearing when he is dealt with at Chichester         Crown Court."           The Headmaster's trial ended on 20 November 1986 when he was convicted on two counts of assault, neither of which related to the second applicant.   He was apparently sentenced to three months' imprisonment.     COMPLAINTS   1.       The applicants allege a violation of Article 3 of the Convention in respect of the punishment of the second applicant.   They quote, inter alia, the cases of Campbell and Cosans (Eur.   Court H.R., Campbell and Cosans judgment of 25 February 1982, Series A no. 48, p.     para. 26), in which the Court observed that "provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 may itself be in conflict with that provision".   They also cite the Tyrer case (Eur.   Court H.R., Tyrer judgment of 25 April 1978, Series A no. 26, p.    paras. 32 and 33), referring to the apparent similarities of that case with the present application, namely, the humiliation involved, the lack of medical safeguards, the institutional character and the "aura of official procedure", the emotional and psychological effects and the assault on both the dignity and physical integrity of the victim.           The applicants contend that the respondent Government are responsible for acts which violate the Convention when they occur not only in State schools but also in independent schools as well.           They quote, inter alia, the Commission's Report in the Swedish Engine Drivers' Union case (Comm.   Report 27.5.74, Eur.   Court H.R., Series B no 18, p. 41 para. 62), in which the Commission observed that a State may "be obliged to protect individuals through appropriate measures taken against some forms of interference by other individuals, groups or organisations".           Moreover, the applicants contend that independent schooling is regulated by statute and the respondent Government ultimately have the power to permit or prevent the operation of an independent school through the registration process, and that this amounts to a broad spectrum of legal, practical and moral responsibility for independent schooling which cannot exclude the use of corporal punishment where it allegedly violates the Convention.   2.       A violation of Article 8 of the Convention is alleged in respect of the first applicant ("family life") and the second applicant ("private and family life").   3.       The applicants also allege that they had no effective remedy, contrary to Article 13 of the Convention.   4.       Finally they complain that as of the date of implementation of the Education (No. 2) Act 1986, sections 47 and 48, on 15 August 1987, children in independent schools will be afforded less protection than their fellow school pupils in State schools against corporal punishment, and that this difference in treatment amounts to discrimination contrary to Article 14 of the Convention.   5.       With regard to Article 26 of the Convention, the applicants' representatives draw the Commission's attention to the applicants' letter dated 14 July 1986 in which the applicants stated that they would be lodging an application once it was known categorically whether or not the headmaster would be charged by the police with any offence in relation to the second applicant.   The applicants submit that the date for the purposes of Article 26 should be 20 November 1986, the date on which the trial of the headmaster, in relation to other charges, ended.   If this date is not accepted, the applicants contend that the relevant date should be 24 June 1986, the date when the police decision not to bring charges in relation to the boy's beatings was communicated to the applicants.   Whichever date is chosen, the applicants contend that their letter of 14 July 1986 to the Commission was within six months of the final decision.     THE LAW           The applicants have complained that the corporal punishment of the second applicant at an independent school on 5 October 1985 constituted degrading treatment, contrary to Article 3 (Art. 3) of the Convention, a violation of their right to respect for family life ensured by Article 8 (Art. 8) of the Convention, and discrimination contrary to Article 14 (Art. 14) of the Convention, for which complaints they had no effective domestic remedies, contrary to Article 13 (Art. 13) of the Convention.           However, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of these provisions as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken". English law provides a civil court remedy for assault.   Given the seriousness of the headmaster's conduct in the present case it would appear that such a remedy might have proved successful, with compensation being awarded to the applicants.   The Commission considers, therefore, that the case could be rejected for non-exhaustion of domestic remedies.   However, the applicants have claimed that it would have been ineffective (cf. No. 7907/77 Mrs.   X v. the United Kingdom, Dec. 12.7.78, D.R. 14 p. 205 at p. 210).   In that case, assuming that the applicants' contention is correct, the final decision for the purposes of the aforementioned six months' rule is the date of the incident about which complaint is made (cf.   No. 5759/72, Dec. 20.5.76, D.R. 6 p. 15).   Accordingly, in the present case the six month period runs from the date of the punishment of the second applicant, namely 5 October 1985, or, if allowance is made for his young age at the material time, a few days later, when apparently the first applicant received the second applicant's letter of complaint about the incident.   Moreover once the second applicant was withdrawn from the school before the end of December 1985 he risked no further punishment of this kind.   However, the application was lodged with the Commission on 14 July 1986, more than six months after any of these dates.   The Commission concludes, therefore, that the application must be rejected for non-observance of the six months' rule, pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Deputy Secretary to the Commission         President of the Commission                     (J. RAYMOND)                          (C.A. NØRGAARD)