CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 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. 11756/85 by L. and G. S. against the United Kingdom             The European Commission of Human Rights sitting in private on 10 October 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, 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 26 October 1982 by L. and G. S. against the United Kingdom and registered on 19 September 1985 under file No. 11756/85;           Having regard to:           - reports provided for in Rule 40 of the Rules of Procedure           of the Commission;           - the Commission's decision of 17 July 1986 to bring the           application to the notice of the respondent Government           and invite them to submit written observations on its           admissibility and merits;           - the observations on admissibility submitted by the           respondent Government on 5 August 1987 and 5 February 1988           upon which the applicants had no comment;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is an Irish citizen, born in 1943, living in Worthing, England.   The second applicant is her son, born on 30 August 1969.   They are represented before the Commission by Messrs.   Wilford McBain, solicitors, of London.           The facts, as they have been submitted by the parties, may be summarised as follows:           The second applicant (the son) attended the local Church of England boys' high school.   During a German lesson on 27 April 1982 the son was reprimanded by the teacher for the poor standard of his school work.   The teacher thereafter left the room and returned with a cane, announcing that one of the pupils "was to be beaten with the cane for untidy and shoddy work".   The son understood the reference to be to him.           At the end of the lesson the teacher ordered the son to remain in the room after the rest of the class had been dismissed and informed him that he was to be punished for his poor school work.   He told the son to bend over and touch his toes and the teacher then struck the boy across the buttocks and the back of the thighs twice. The son then straightened up and began to move away, but was ordered by the teacher to resume his former posture and was thereupon struck a third time across the buttocks.   The third blow also struck the son's hand.   It appears that at least two boys could see the incident through the glass panel in the classroom door.           The son was later found by a physical education teacher, limping and bleeding and in a very distressed condition as a result of the caning.   A temporary dressing was applied to the son's cuts and the first applicant was telephoned and asked to collect her son.   On arriving at the school, the first applicant states that she became so greatly distressed that she found herself "shaking from head to foot".           The son was given a medical examination by his family doctor who found "two large linear weals across his buttocks and thighs one of which has drawn blood and has large bruises under it".   Traces of the injuries were still visible more than three months thereafter.           As a result of the incident, the husband/father wrote to the school's headmaster.   The teacher concerned was suspended from his post pending an inquiry into the incident.           The first applicant and her husband also complained to the police, as a result of which the teacher was charged with an assault upon the boy occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act 1861.   The teacher was acquitted on 22 July 1982, apparently on the grounds that his treatment of the boy amounted to no more than reasonable physical chastisement as permitted by the common law.   The applicants' representatives assert that the son became greatly distressed during the court hearing and repeatedly broke down in tears.   The first applicant also suffered anguish at having to witness her son in a distressed condition in the witness box without being able to help.   In the newspaper reports of the trial, the applicants were named and photographs of the boy were included.   It is claimed that the son's whole personality changed after the incident from being ebullient to being very subdued and introverted.           In or about June 1985 the second applicant, represented by the first, instituted civil proceedings for assault against the teacher concerned, the governors of the school and the local education authority.   These proceedings were terminated on 23 April 1986 by a settlement between the parties, the local authority agreeing to pay £300 in damages, plus costs.           As regards the school's internal inquiry into the incident, it was found that the teacher had acted in contravention of the relevant school rules which were as follows:           "1.   Corporal punishment may only be administered by         authorised members of staff, the authorisation coming         only from the Headmaster or his deputy.           2.   Canes will be kept in the Deputy Head's office, and         may be removed from there only with the express permission         of the Headmaster or the Deputy Head.           3.   The nature of the offence and the number of strokes         must be discussed with the Head or deputy prior to the         punishment.   Two strokes will be regarded as the normal         maximum.           4.   As a general guide, corporal punishment should never         be given for poor work or failure to complete homework.           5.   The punishment must be administered or witnessed by         one of the five senior staff listed below:                         Headmaster                         Deputy Head                         Senior Master                         Head of Lower School                         Head of Upper School.           6.   The appropriate entry must be recorded in full in         the punishment book (kept in the Deputy Head's office)         at the time of the administration of the punishment.           7.   The strokes must be administered on the buttocks only."   The teacher was allowed to return to the school after his acquittal on the criminal charges, but he was given a formal written warning as to his conduct under the local education authority's disciplinary procedures.   By the time the teacher returned to the school the son had been moved to another school in the area.     COMPLAINTS           The first applicant complains on behalf of herself and the second applicant that the corporal punishment of the latter constituted a violation of their rights protected by Article 3 of the Convention.   In addition it is claimed that they had no remedy, contrary to Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 26 October 1982 when the applicants' representatives wrote to the Secretary to the Commission submitting details of the complaints.   An application form was sent to them on 16 November 1982, with the request that it should be returned, duly completed.   The applicants' solicitors' next letter is dated 5 September 1985, when the application form was returned.   It was received on 19 September 1985 and registered on that date.   The application was made in the name of the first applicant, who made complaints on her own behalf and on behalf of her son, a minor at the time.           After a preliminary examination of the case by a Rapporteur, the Commission examined the case on 17 July 1986 but then adjourned it.   It renewed its examination of the case on 12 March 1987 and decided to give notice of the application, pursuant to Rule 42(2)(b) of its Rules of Procedure, to the respondent Government.           On 5 August 1987, after an extension of the time-limit, the Government expressed their wish to resolve the application by virtue of the abolition of corporal punishment in State schools by the Education (No. 2) Act 1986, which came into force on 15 August 1987, in view of the fact that the first applicant had stated in the application to the Commission that its object was, inter alia, to obtain a reform of the domestic law.   The applicants submitted no response to the Government's proposal.           On 12 December 1987 the Commission decided to invite the respondent Government to make specific proposals for the resolution of the case.   However on 5 February 1988 the Government submitted written observations on the admissibility of the application.   On 29 April 1988 the applicants' representatives informed the Commission that the applicants relied on the submissions in the original application and had no further observations to make.     SUBMISSIONS OF THE PARTIES   A.       The Government   1.       The relevant facts           The Government's observations on the facts of the case have been incorporated in THE FACTS above, particularly the information concerning the applicants' civil claim and the school's internal inquiry.   2.       The law relating to corporal punishment in schools           a. The criminal law           Under the criminal law assault is punishable under the provisions of the Offences Against the Person Act 1861.   A conviction for the least serious form of assault "common assault" is susceptible to a fine of up to £400 or two months' imprisonment.   A conviction for assault occasioning actual bodily harm is susceptible to five years' imprisonment.   An act does not constitute assault, however, if it is done in the course of lawful correction such as by a parent of a child.   Such correction must be reasonable and moderate and administered with a proper instrument and in a decent manner.   The exception for lawful correction extends to persons such as teachers who are in loco parentis.           b. The civil law           Physical assault is susceptible to an action for damages as a form of trespass to person.   It is a defence to such an action that the act of which complaint is made was reasonable chastisement in the exercise of parental or other authority.   Prior to 15 August 1987 teachers were deemed to be acting in loco parentis, since that date and the coming into force of the Education (No. 2) Act 1986 teachers may no longer claim this defence as regards pupils in State schools or in certain schools subsidised by the State or as regards certain pupils at independent schools whose fees are paid by the State.   3.       The issues under Article 25 of the Convention           The Government contend that the first applicant, and presumably, the second applicant, may no longer claim under Article 25 of the Convention to be victims of a violation of the Convention.           The Government assume that the first applicant is claiming as an indirect victim of a breach of Articles 3 and 13 of the Convention. They note that one of the objects of the application, to obtain a reform of the law, has been achieved with the Education (No. 2) Act 1986.           The Government further submit that the settlement of the applicants' civil claim on 23 April 1986 constituted adequate redress in respect of the complaints made in the application to the Commission (cf.   Nos. 5577-5583/72 Donnelly and six others v. the United Kingdom, Dec. 15.12.75, D.R. 4, p. 4; No. 6504/74 Preikhzas v.   Federal Republic of Germany Comm.   Report 13.12.78, D.R. 16 p. 5; No. 8865/80 Verband Deutscher Flugleiter e.v. v.   Federal Republic of Germany, Dec. 10.7.81, D.R. 25 p. 252 and No. 9320/81, D v.   Federal Republic of Germany, Dec. 15.3.84, D.R. 36 p. 24.   Present application distinguished on its facts from the Inze judgment, Eur.   Court H.R., judgment of 28 October 1987, Series A no. 126).           The Government contend that no question can arise in the present case as to whether the domestic remedy obtained (the settlement) was in fact adequate because it was voluntarily accepted by the applicants, who thereby renounced the possibility of obtaining higher compensation through a judgment of the domestic court.   The applicants not only received damages but the school authorities repudiated the conduct complained of and demonstrated this by suspending the teacher and subsequently issuing a formal written warning to him (cf. aforementioned Inze judgment para. 32 final sentence).   4.       Conclusion           The Government request the Commission to declare the application inadmissible since the applicants can no longer claim, under Article 25 of the Convention, to be victims of a breach of the Convention.   B.       The applicants   1.       As to Article 3           It is submitted that the caning of the son and its consequences constituted degrading treatment or punishment contrary to Article 3 of the Convention.           The applicants recall and adopt the submissions of law made by their present representatives, in regard to the scope and effect of Article 3, in the Petition filed with the Commission in No. 9471/81, Warwick v. the United Kingdom.           In the instant case the elements of degrading treatment or punishment relied upon by the applicants include:           (i)     The son's immediate physical agony and subsequent severe         pain and discomfort occasioned by a caning which not only         caused extensive wealing and bruising but which actually broke         the skin and caused bleeding externally, such physical effects         being demonstrably more serious than those produced either by         the birching complained of in the Tyrer case, which "raised,         but did not cut, the applicant's skin" (Eur.   Court H.R.,         judgment of 25 April 1978, Series A no. 26 para. 10) or the         caning complained of in No. 7907/77 where the blows apparently         did not break the skin and where the consequent marks were         said only to have "remained for about two months", as compared         with more than three months in the instant case (Dec. 12.7.78,         D.R. 14 pp. 205, 206);           (ii)    The humiliation of the son in his own eyes through his         being forced repeatedly to adopt a grotesque and unnatural         posture for the caning;           (iii)   His humiliation in the eyes of those others who         inflicted and/or witnessed and /or overheard the said caning         and its attendant elaborate ritual;           (iv)    His humiliation in the eyes of those who thereafter         witnessed the physical injuries and physical and mental         anguish occasioned by the caning;           (v)     The whole aura of official procedure attending the         punishment;           (vi)    The absence of proper safeguards (such as prior medical         examination or the presence of a doctor during the actual         punishment) in the administration of the caning;           (vii)   The relatively trivial nature of the misdemeanour or         misdemeanours for which the punishment was imposed;           (viii) The "adverse psychological effects" which were produced         upon the applicants, both in the immediate aftermath of the         punishment and by reason of the ordeal undergone by a 12 year         old boy obliged to testify and to submit to public cross-         examination in the criminal proceedings;           (ix)    The further public humiliation and consequent "adverse         psychological effects" consequent upon the authorities'         manifest failure to take any steps whatsoever to restrain, in         connection with the aforesaid criminal proceedings, personal         publicity which predictibly proved intensely distressing to         both applicants.   2.       As to Article 13           It is submitted that this case provided further evidence of the existence at the material time of practices by the United Kingdom Government connected with the use of corporal punishment in schools, which violated both Articles 3 and 13 of the Convention.   The applicants recall and adopt the submissions of law under Article 13 of the Convention made by their present representatives, particularly in regard to State practice, in the Petition filed with the Commission in No. 9471/81 Warwick v. the United Kingdom.   In the context of the alleged existence of an offensive State practice, the Commission's particular attention is drawn to the following matters which apparently emerged during the criminal proceedings in this case, as reported in various newspapers:           (i)    The son's own statement, in oral evidence, that on two         previous occasions the teacher concerned had beaten him with a         shoe for untidy work;           (ii)   The information, conveyed to the jury by counsel         prosecuting on behalf of the Crown, that boys at the high         school were habitually beaten with "bamboo canes, for         rude, disruptive behaviour and truancy", and the further         information (subsequently confirmed in the oral evidence of         the school's Senior Master) that on the morning of the son's         caning on 27 April 1982 "the teacher concerned caned four boys         in the fourth year, perfectly properly, for not attending         detention";           (iii) The information, conveyed to the jury by counsel for the         defendant teacher, that at the school "about 81 canings had         taken place during almost two years where there were no         signatures of witnesses" (with some apparent implication that         those 81 canings constituted but a part of the total recorded         in the school's punishment book which was said to have been         produced to the Crown Court);           (iv)   An allegation that the Senior Master of the school had         told the teacher "that intelligent boys who were lazy in the         classroom deserved the cane to make them work";           (v)    The existence, in the school's punishment book, of an         entry to the effect that in 1979 the headmaster of the lower         school had caned a boy for failing to hand in homework.   THE LAW   1.       The applicants complain of the caning of the son at a State school.   They allege violations of Articles 3 (Art. 3) and 13 (Art. 13) of the Convention.           The application was lodged solely in the name of the first applicant, but she complained not only in respect of a violation of her rights under the Convention but also in respect of a violation of her son's rights.   Accordingly the Commission considers that the son is also an applicant before the Commission whose complaints may be considered separately from his mother's.   2.       The Government have submitted that the applicants may no longer claim under Article 25 (Art. 25) of the Convention to be victims of a violation of Articles 3 (Art. 3) and 13 (Art. 13) because they voluntarily accepted a domestic court settlement of £300 damages, plus costs, in respect of a civil claim for assault.   The Government also point out that one of the objects of the application has been attained, namely, the reform of the relevant domestic law by the Education (No. 2) Act 1986, which came into force on 15 August 1987.           The Commission notes, however, that the domestic court settlement was agreed prior to the reform of the law, at a time when teachers had a defence to such assault claims if the punishment was deemed to be reasonable chastisement, because teachers were acting in loco parentis.   Damages would, therefore, only be awarded if the punishment was deemed excessive, and not in respect of corporal punishment as such.   Moreover the Government have not provided any examples to show that awards of damages for excessive corporal punishment would normally have been much higher than the settlement amount in the present case.   It would appear, therefore, that the applicants were not in a strong negotiating position when they accepted the £300 settlement in 1986 (cf.   Eur.   Court H.R. Inze judgment of 28 October 1987, Series A no. 126 paras. 30-34).   Finally, the Commission observes that the reform of the law in 1986/87 was of no benefit to the applicant's son in 1982 when he received the punishment of which complaint is made.           The Commission concludes that the applicants may still claim under Article 25 (Art. 25) to be victims of a violation of Articles 3 (Art. 3) and 13 (Art. 13) of the Convention.   3.       As regards the complaint of the first applicant under Article 3 (Art. 3) of the Convention, the Commission notes her statements that she was greatly distressed upon arriving at the school after her son had been caned and that she found herself "shaking from head to foot". The first applicant was also said to suffer anguish as a result of witnessing her son in a highly distressed condition, in the witness box during the criminal proceedings against the teacher concerned, whilst being unable at any time to comfort him in any way.   The applicants' representatives state that further anguish was caused to the first applicant by the authorities' complete failure to take any steps to protect the applicants from the effects of the wide publicity of the criminal proceedings.           Article 3 (Art. 3) of the Convention provides:           "No one shall be subject to torture or to inhuman or         degrading treatment or punishment".           According to the Court and the Commission's established case-law, a violation of this provision can only arise where the matters complained of attain a particular degree of severity (Eur. Court H.R. Campbell and Cosans judgment of 25 February 1982, Series A No. 48 paras. 27 and 28).   In the present case it does not appear that the first applicant's own anguish and distress attain that degree of seriousness and, accordingly, the Commission finds that no breach of this provision has been established.           The first applicant further complains that she has been denied any effective remedy before a national authority in respect of her complaints, contrary to Article 13 (Art. 13) of the Convention.           The Commission observes that this provision is only applicable when an applicant has an arguable claim that there has been a breach of other rights and freedoms contained in the Convention (cf.   Eur. Court.   H. R., Judgment of Silver and others of 25.3.83, Series A No. 61 para. 113 (a)).           The Commission finds that in view of the nature of the first applicant's personal complaint under Article 3 (Art. 3) of the Convention and the preceding considerations, she does not have an arguable claim under Article 13 (Art. 13) of the Convention.           It follows that the application in respect of the first applicant's rights under the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       As regards the complaints of the second applicant, the Commission notes that it is claimed on his behalf that he suffered immediate physical agony and subsequent severe pain and discomfort after receiving three strokes of the cane from one of his school teachers.   He felt humiliated by the punishment and was further subsequently distressed when he had to testify in criminal proceedings against the teacher, which proceedings received media publicity.           It is submitted that he is a victim of a violation of Articles 3 (Art. 3) and 13 (Art. 13) of the Convention.   The Commission notes that Article 8 (Art. 8) of the Convention is also relevant to cases of the present kind.           The Commission has examined these aspects of the application and finds that they raise important issues of law and facts which require further examination on the basis of supplementary observations from the parties.           For these reasons, the Commission           DECIDES TO ADJOURN the examination of the second         applicant's complaints;           DECLARES INADMISSIBLE the remainder of the application.       Secretary to the Commission         President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)