CEDH · CASELAW;REPORTS;ENG — 8 octobre 1991

.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 }  Application No. 14229/88   Y.   against   the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 8 October 1991)   TABLE OF CONTENTS                                                               page     I.       INTRODUCTION (paras. 1-15)                            1-3           A.   The application (paras. 2-4)                       1           B.   The proceedings (paras. 5-11)                     1-2           C.   The present Report (paras. 12-16)                 2-3     II.      ESTABLISHMENT OF THE FACTS (paras. 17-33)             4-7           A.   The particular circumstances of the case          4-5             (paras. 17-25)           B.   The relevant domestic law and practice            5-7             (paras. 26-33)     III.     OPINION OF THE COMMISSION (paras. 34-60)              8-13           A.   Complaints declared admissible                     8             (para. 34)           B.   Points at issue (para. 35)                         8           C.   State responsibility (para. 36)                   8-9           D.   As regards Article 3 of the Convention            9-11             (paras. 37-46)                   Conclusion (para. 46)                          11           E.   As regards Article 8 of the Convention           11-12             (paras. 47-52)                   Conclusion (para. 52)                         12           F.   As regards Article 13 of the Convention          12-13             (paras. 53-57)                   Conclusion (para. 57)                         13           G.   Recapitulation (paras. 58-60)                     13   Dissenting opinion of Mr.   Frowein                             14   Dissenting opinion of Mr.   Schermers                          15-16   Partly concurring, partly dissenting                          17 opinion of Mrs.   Liddy   APPENDIX I      History of the proceedings                    18-19   APPENDIX II     Decision on the admissibility                 20-28                of the application 13.12.90   I.       INTRODUCTION   1.      The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.      The applicant is a citizen of the United Kingdom, born in 1968 and resident in Hove, Sussex.   He was represented before the Commission by Messrs.   Binks Stern and Partners, Solicitors, London.   3.      The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr.   M.C. Wood, succeeded by Mrs.   A.F. Glover, both of the Foreign and Commonwealth Office.   4.      The case concerns the corporal punishment of the applicant when he was 15 years old by the headmaster of a private school where he was a pupil.   The application raises issues under Articles 3, 8 and 13 of the Convention.     B.       The proceedings   5.      The application was introduced on 2 September 1986 and registered on 20 September 1988.   (Registration was not effected earlier due to delays by the applicant in returning the application form and replying to requests for information.)   It was originally lodged by the applicant and his mother.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 9 May 1989.   It decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the case.   The Government submitted their observations, after two extensions of the time-limit, on 10 November 1989.   The applicant submitted his observations, after an extension of the time-limit, on 15 March 1990.   6.      On 6 October 1990 the Commission decided to invite the parties to an oral hearing on admissibility and merits on the same day as a hearing in a similar application, No. 13134/87, Wendy and Jeremy Costello-Roberts v. the United Kingdom.   7.      The hearing was held on 13 December 1990.   The Government were represented by Mrs.   A. Glover, Agent, Foreign and Commonwealth Office, Mr.   N. Bratza, QC, Counsel, and MM. A.D. Preston, L.B. Webb and A.W. Wilshaw, advisers from the Department of Education.   The applicant was represented by Mr.   M.D. Gardner, Solicitor, Messrs.   Binks Stern and Partners, Ms.   J. Beale, Counsel, and Mr.   M. Rosenbaum, adviser.   8.      At the hearing an original complaint under Article 14 of the Convention was withdrawn by the applicant's representatives.   9.      Following the hearing, the Commission declared the applicant's complaints under Articles 3, 8 and 13 of the Convention admissible. It declared inadmissible that part of the application brought by the applicant's mother.   10.      On 17 January 1991 the parties were sent the text of the Commission's decision on admissibility and they were invited to submit any further evidence or additional observations on the merits which they wished.   On 19 March 1991 the Government informed the Commission that they did not wish to submit further evidence or observations on the case.   No further evidence or observations were submitted by the applicant's representatives.   11.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   12.      The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      J.C. GEUS                      M.P. PELLONPÄÄ   13.      The text of this Report was adopted by the Commission on 8 October 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)   to establish the facts, and           2)   to state an opinion as to whether the facts found             disclose a breach by the State concerned of its             obligations under the Convention.   15.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   16.      The pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission. II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   17.      In 1983 the applicant, then 15 years old, was a fifth form pupil at BC, an independent private school.   18.      On 29 September 1983 the applicant was knocked to the floor by a fellow pupil who was chasing a younger boy.   On the morning of the following day the applicant defaced the cover of a file of his fellow pupil with a pair of compasses.   The latter reported this damage to the housemaster and the applicant was sent to the headmaster for punishment.   The Government state that the applicant had a history of bullying the fellow pupil concerned and that he was punished for this behaviour, not just for vandalising the file.   19.      The applicant stated that he was caned through his trousers four times, the headmaster taking several steps back and running at the boy before hitting him.   The Government denied that the headmaster administered the punishment in this manner.   The applicant claimed that after the caning he was in tears and considerable pain.   He sat alone for about an hour, feeling unable to walk and was excused rugby tackling practice.   (He was the captain of the rugby team.)   The Government stated that the applicant had not been in tears when he left the headmaster's office and subsequently showed off the marks of his punishment to other boys with pride.   20.      The applicant returned home from school around 17.45 hrs..   He only showed his injuries to his mother after they had been noticed by his sister, who drew their mother's attention to them.   The mother stated that she was horrified and took him straight to the family doctor.   The doctor found that the applicant had four, still painful wheals across both buttocks, showing heavy bruising and swelling.   He suggested that the applicant's parents take the matter up with the school and, if necessary, the police.   This they did that same evening, showing those concerned the injuries.   The police advised that the injuries amounted to evidence of assault occasioning actual bodily harm.   21.      On 3 October 1983 the parents received a letter from the housemaster stating that the applicant had been caned for "wanton vandalism".   The same day they had interviews with the housemaster and headmaster at the school, but the parents were not satisfied with the outcome.   The parents put the matter fully in the hands of the police, who subsequently decided not to prosecute the headmaster.   The parents then initiated civil proceedings claiming damages for assault and loss of the term's school fees because the applicant was withdrawn from the school.   22.      The County Court rejected the claims on 28 July 1986. Evidence was given by a senior police surgeon at the hearing.   He expressed the view that, from studying the photographs taken of the applicant's injuries, the injuries were "entirely consistent with normal caning to that part of the body which has come to be regarded as the customary site for such punishment ...   The extent of the injuries sustained compares with what might be expected ...   It (was) most unlikely that excessive force was used at the time."   He conceded that the boy would have been unable to walk for an hour afterwards.   23.      In the applicant's evidence at the hearing he acknowledged that he had been previously caned at preparatory school - apparently without complaint or ill effects.   24.      The County Court judge held that the parents had entered a binding contract with the school in which it had been agreed, inter alia, that the school was authorised to cane pupils as a disciplinary punishment.   The use of such punishment was indicated to all parents in the school's prospectus and regulations.   The force used in such punishment must nevertheless be reasonable and will inevitably leave marks and bruising.   He found nothing unusual or excessive in the caning and considered that the parents had overreacted to the incident.   25.      The applicant claimed that the proceedings cost his parents £4513.36.   They did not appeal against the County Court decision as they were advised by counsel that such an appeal had no prospects of success whatsoever and would only involve them in even greater expense.     B.       The relevant domestic law and practice   26.      The lawful bounds of corporal punishment were as generally described for all English schools prior to 15 August 1987 in Halsbury's Laws of England (Fourth Edition Volume 15) as follows:           "66. Position of school-teachers.   The authority of a         school-teacher is, while it exists, the same as that of         parent.   When a parent sends his child to a school he         delegates to the head teacher his own authority so far as         is necessary for the child's welfare and so far as is         necessary to maintain discipline with regard to the child         in the child's interests and those of the school as a whole.         The head teacher's right to punish a child extends to a         responsible assistant teacher.           67. Corporal punishment.   As delegate of the parental         authority, a head teacher and a responsible assistant teacher         have the right to inflict moderate and reasonable corporal         punishment, using a proper instrument.   If, however, the         punishment administered does not satisfy these criteria the         teacher is liable in criminal proceedings and he or his         employers are liable to a civil action for damages."   27.      The criminal law of assault sanctions corporal punishment which is not reasonable, moderate or administered with a proper instrument in a decent manner.   The least serious offence is common assault pursuant to section 42 of the Offences against the Persons Act 1861.   Prosecutions are usually left to the aggrieved party.   The   maximum penalty for common assault is a £400 fine or two months' imprisonment.   The 1861 Act provides for more serious offences of assault occasioning actual or grievous bodily harm.   The maximum penalty for causing actual bodily harm is five years' imprisonment.   28.      Physical assault is actionable in civil law as a form of trespass to the person for which damages may be recovered.   Parents are however entitled to use reasonable physical punishment on their children and at the material time in the present case teachers were deemed to be "in loco parentis" and thereby had a defence to civil claims involving the moderate corporal punishment of children.   Since the coming into force of sections 47 and 48 of the Education (No. 2) Act 1986 on 15 August 1987 this defence no longer avails teachers in State schools.   The present case, however, involves an independent school, whose teachers may still administer reasonable corporal punishment to pupils.   The concept of reasonableness permits the courts to apply prevailing contemporary standards.   29.      An independent (or private) school is one at which full-time education is provided for 5 or more pupils of compulsory school age, not being a special school (i.e. one specifically organised to provide education for pupils with learning difficulties) or a school maintained by a public authority (section 114 (1) Education Act 1944).   30.      Independent schools must apply for registration to the Registrar of Independent Schools, an officer of the Department of Education and Science.   Registration is subject to the provision of suitable safety, health and educational standards, but, the Government contend, generally the State has no power to permit or prevent the operation of independent schools.   Such schools are not subject to such strict maintenance standards as State subsidised schools; nor need they employ qualified teachers, follow the State teachers' salary scales or prepare pupils for particular examinations.   They are free to use corporal punishment, within the bounds of the civil and criminal law, except, since 1986, on pupils whose place is paid for by the State under the Assisted Places Scheme.   Excessive corporal punishment (involving successful criminal prosecutions) may provoke the Secretary of State to use his powers under section 71 (1) of the Education Act 1944 to initiate a complaints procedure which may result in an independent school being struck off the register, whereupon it becomes a criminal offence to continue running the school.   No such issue has arisen in the past ten years.   31.      The State provides little direct funding to independent schools, except for three out of 2,341 schools, and the payment of certain pupils' school fees in full or in part in some 226 independent schools.   A total of 33,336 places are thus offered out of a total of 533,977 full time pupils in independent schools (January 1988 statistics).   However such schools enjoy charitable status and are thereby relieved from the payment of certain rates and taxes.   Many independent schools could not operate without such tax relief.   32.      The present school participates in the Assisted Places Scheme providing a total of 20 places for pupils whose fees are met by the State.   33.      Parents have a duty under the Education Act 1944 to educate their children, a duty reinforced by criminal sanctions.   They have the choice whether to provide suitable education at home or in private or State schools.   The Secretary of State has a duty under the same Act to ensure certain educational standards.   III.     OPINION OF THE COMMISSION   A.       Complaints declared admissible   34.      The Commission declared admissible the applicant's complaints that his corporal punishment at school constituted breaches of his rights under Articles 3, 8 and 13 (Art. 3, 8, 13) of the Convention.     B.       Points at issue   35.      The following are the points at issue in the present application:   -        whether the corporal punishment of the applicant was degrading treatment in violation of Article 3 (Art. 3) of the Convention;   -        whether that punishment also constituted an unjustified interference with the applicant's right to respect for his private life and family life in violation of Article 8 (Art. 8) of the Convention;   -        whether the applicant had effective domestic remedies for his Convention claims pursuant to Article 13 (Art. 13) of the Convention.     C.       State responsibility   36.      The Commission recalls that the punishment of the applicant was administered by the headmaster of a private school for whose disciplinary regime the Government had declined responsibility under the Convention.   The Commission held in its decision on admissibility in the present case that the United Kingdom was responsible under the Convention, Articles 1, 3 and 8 (Art. 1, 3, 8) of which having imposed a positive obligation on High Contracting Parties to ensure a legal system which provides adequate protection to children's physical and emotional integrity (see p. 26 below):           "The Commission considers that Contracting States do have         an obligation under Article 1 (Art. 1) of the Convention to secure         that children within their jurisdiction are not subjected         to torture, inhuman or degrading treatment or punishment,         contrary to Article 3 (Art. 3) of the Convention.   This duty is         recognised in English law which provides certain criminal         and civil law safeguards against assault or unreasonable         punishment.   Moreover, children subjected to, or at risk         of being subjected to ill-treatment by their parents,         including excessive corporal punishment, may be removed         from their parents' custody and placed in local authority         care.   The Commission also notes that the State obliges         parents to educate their children, or have them educated         in schools, and that the State has the function of         supervising educational standards and the suitability of         teaching staff even in independent schools.   Furthermore,         the effect of compulsory education is that parents are         normally obliged to put their children in charge of teachers.         If parents choose a private school, the teachers assume the         parental role in matters of discipline under the national         law while the children are in their care, by virtue of the         'in loco parentis' doctrine.   In these circumstances the         Commission considers that the United Kingdom has a duty         under the Convention to secure that all pupils, including         pupils at private schools, are not exposed to treatment         contrary to Article 3 (Art. 3) of the Convention.   The Commission         considers that the United Kingdom's liability also extends         to Article 8 (Art. 8) of the Convention in order to protect the         right to respect for private life of pupils in private         schools to the extent that corporal punishment in such         schools may involve an unjustified interference with         children's physical and emotional integrity."     D.       As regards Article 3 (Art. 3) of the Convention   37.      Article 3 (Art. 3) of the Convention provides as follows:           "No one shall be subjected to torture or to inhuman or         degrading treatment or punishment."   38.      The applicant contended that the punishment inflicted on him by the headmaster at his school constituted degrading treatment contrary to Article 3 (Art. 3) of the Convention.   He relied on the Court's condemnation of the judicial corporal punishment of a teenager in the Tyrer case as a precedent for his claim (Eur.   Court H.R., Tyrer judgment of 25 April 1978, Series A No. 26).   He also relied on the Commission's conclusion in the Warwick case in which a less severe punishment to a teenage girl's hand was deemed in breach of Article 3 (Art. 3) of the Convention (No. 9471/81, Maxine and Karen Warwick v. the United Kingdom, Comm.   Report 18.7.86, paras. 86-88).   39.      The applicant's representatives placed emphasis on the manner in which the punishment was administered with a cane - a hard, thin, flexible weapon designed to cause acute pain on contact and to cause continuing pain for some time thereafter.   The applicant suffered injury as a result of being forcefully hit four times with the cane, which left four painful wheals and caused bruising and swelling lasting for some time afterwards.   The applicant also submitted that his punishment was a form of institutionalised violence with elements of a normal, official procedure designed to humiliate, particularly given the added indignity of being hit on the buttocks.   It was claimed that the applicant's own behaviour which brought the punishment on him was irrelevant to the Article 3 (Art. 3) issue.   40.      The Government contended that the punishment in this case was moderate and reasonable and did not attain the high level of severity condemned by the Court in the Tyrer case (ibid p. 15, para. 30).   They denied that the punishment administered to the applicant constituted any kind of institutionalised violence like judicial corporal punishment.   The present case had none of the aggravating features of judicial corporal punishment, such as the long delay between the sentence and the administration of the punishment by a person who was a total stranger to the offender.   The punishment of the present applicant was moderate and the chastisement was administered with the minimum of formality, without any of the official aura of judicial corporal punishment, by a teacher within a school community as a disciplinary measure for a breach of the disciplinary rules of the community.   Nor did the present case present any of the distinctive aggravating features identified by the Commission in the aforementioned Warwick case.   41.      The Government denied that the punishment of the present applicant had been administered with considerable force causing significant injury.   They pointed out that these claims were fully examined but rejected by the County Court, and were not supported by the medical evidence which showed that the marks on the applicant's buttocks were consistent with a normal caning through clothing without excessive force.   42.      The Commission recalls that the Court held in the aforementioned Tyrer case that for corporal punishment to be degrading, within the meaning of Article 3 (Art. 3) of the Convention, the humiliation and debasement involved must attain a particular level of severity over and above the usual element of humiliation involved in any kind of punishment.   The assessment of such matters is necessarily relative: it depends upon 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 (ibid p. 15, para. 30).   Similar considerations were deemed to be relevant in a case concerning corporal punishment in Scottish State schools (Eur.   Court H.R., Campbell and Cosans judgment of 25 February 1982, Series A no. 48, p. 13, para. 29).   However, the Commission, to date, has not found that moderate corporal punishment in schools constitutes, as a general principle, institutionalised violence of the kind observed in the Tyrer case which would be in breach of Article 3 (Art. 3) of the Convention. The Commission, like the Court, has always assessed claims of the present kind on the basis of the particular circumstances of the individual case (cf.   No. 9471/81 Maxine and Karen Warwick v. the United Kingdom, Comm.   Report 18.7.86, in which the Commission expressed the opinion that the hand caning and injury of Karen Warwick, then 16 years of age, by her school headmaster in the presence of another male teacher, had been in breach of Article 3 (Art. 3) of the Convention).   43.      The Commission has had regard to the distinctive circumstances of the present case.   Although the County Court deemed the actual punishment of the applicant moderate and reasonable, the Commission considers that the injuries inflicted on the aplicant cannot be dismissed as trivial.   The applicant was hit with such force with the cane that four wheals appeared on his buttocks, with swelling and bruising, causing considerable pain for some time after the act itself. 44.      The Commission considers that such injury to a teenage boy is unacceptable whoever were to inflict the punishment, be it parent or teacher.   The Commission sees no justification for treating the applicant in this way.   In particular it can find no pedagogical reason for dealing with the applicant's bullying behaviour with a punishment on the same bullying level, i.e. the use of superior strength to hurt and degrade another.   The Commission notes that little pedagogical justification was put forward by the Government on the school's behalf.   45.      Accordingly, considering the circumstances of the present case as a whole, the Commission is of the opinion that the corporal punishment inflicted on the applicant caused him significant physical injury and humiliation which attained such a level of seriousness that it constituted degrading treatment and punishment within the meaning of Article 3 (Art. 3) of the Convention.   The Commission also considers, for the reasons given above (para. 36), that the State is responsible for this ill-treatment insofar as the English legal system authorised it and provided no effective redress.           Conclusion   46.      The Commission concludes, by 11 votes to 2, that there has been a violation of Article 3 (Art. 3) of the Convention.     E.       As regards Article 8 (Art. 8) of the Convention   47.      The relevant part of Article 8 (Art. 8) of the Convention provides as follows:           "1.   Everyone has the right to respect for his private         and family life ...           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 is necessary in a democratic         society ... for the protection of health or morals, or         for the protection of the rights and freedoms of others."   48.      The applicant submitted that the corporal punishment which he suffered constituted an unjustified interference with his right to respect for private and family life.   He contended that it was irrelevant to the issue whether he had accepted the caning or what the reasons were for his being punished, i.e. his bullying behaviour.   The punishment in itself was an act of bullying and was hardly conducive to him learning respect for persons weaker than himself.   The applicant's parents had accepted corporal punishment as part of the disciplinary regime at the school, but not to the extent inflicted on the applicant.   However, it was submitted that their consent was irrelevant to the applicant's Article 8 (Art. 8) rights.   49.      The Government conceded that the concept of private life is a broad one, embracing all aspects of physical and moral integrity. However, they considered that in the domain of corporal punishment Article 3 (Art. 3) of the Convention is the lex specialis and no more extensive interpretation should be given to Article 8 (Art. 8) as the lex generalis in this sphere than is given to Article 3 (Art. 3).   The concept of respect for private life in Article 8 (Art. 8) is a flexible one and questions of interference depend on the circumstances of the individual case, which in the present instance include the reasons for the punishment, its severity, the manner of its execution, whether corporal punishment was an established and accepted part of the school's disciplinary procedures and the express or implied consent of the parents to those procedures.   The Government emphasised the clear parental consent in this case to the use of corporal punishment as part of the school's disciplinary arrangements.   They also emphasised the applicant's persistent bullying behaviour which had deserved the serious punishment of caning, as the applicant had openly admitted at the County Court hearing.   It was submitted that the punishment was moderate and reasonable in the circumstances.   This was borne out by the findings of the County Court.   50.      The Government could find no concrete evidence of any interference with the applicant's right to respect for family life.   51.      The Commission refers to its finding above (para. 45) that the present case discloses a violation of Article 3 (Art. 3) of the Convention. The Commission considers that in the circumstances of the present case the Article 8 (Art. 8) issue is absorbed by that finding and that there is no need to pursue a separate examination of the applicant's claims of an unjustified interference with his right to respect for private and family life.           Conclusion   52.      The Commission concludes, by 11 votes to 2, that no separate issue arises under Article 8 (Art. 8)) of the Convention.     F.       As regards Article 13 (Art. 13) of the Convention   53.      Article 13 (Art. 13) of the Convention provides as follows:           "Everyone whose rights and freedoms as set forth in         this Convention are violated shall have an effective         remedy before a national authority notwithstanding that         the violation has been committed by persons acting in an         official capacity."   54.      The applicant submitted that, contrary to Article 13 (Art. 13) of the Convention, he had no effective domestic remedies for his claim of breaches of Articles 3 and 8 (Art. 3, 8).   The treatment he received was lawful under English law, as was shown by the County Court decision of 28 July 1986 in his case.   The applicant also relied on the Commission's conclusion that Article 13 (Art. 13) had been breached in the similar circumstances of Application No. 9471/81, Maxine and Karen Warwick v. the United Kingdom (Comm.   Report 18.7.86, paras. 94-102).   55.      The Government contended that the applicant had an effective remedy in substance in the English law of assault, a remedy matching the Articles 3 and 8 (3, 8) rights and adequately guaranteeing them. The fact that the applicant's assault claim before the County Court failed on the grounds that the punishment in question was neither unreasonable nor excessive in all the circumstances does not suggest that the remedy itself is either inadequate or ineffective for the purposes of Article 13 (Art. 13) of the Convention.   56.      The Commission refers to the aforementioned Warwick case in which a less severe punishment than that inflicted on the applicant was deemed lawful under the English law of assault by a County Court, but such a remedy was not considered by the Commission to be effective for the purposes of Article 13 (Art. 13) of the Convention for the Convention claims of Maxine and Karen Warwick.   It is also clear from the facts of the present case that what is considered to be moderate and reasonable punishment for pupils in private schools under the English law of assault can nevertheless constitute degrading treatment contrary to Article 3 of the Convention.   In these circumstances the Commission finds that the assault remedy was inadequate for the applicant's Convention claims.   In particular, the Commission is of the opinion that the applicant did not have an effective remedy before a national authority in respect of his complaint that he suffered degrading treatment or punishment.           Conclusion   57.      The Commission concludes, by 11 votes to 2, that there has been a violation of Article 13 (Art. 13) of the Convention.     G.       Recapitulation   58.      The Commission concludes, by 11 votes to 2, that there has been a violation of Article 3 (Art. 3) of the Convention (para. 46 above).   59.      The Commission concludes, by 11 votes to 2, that no separate issue arises under Article 8 (Art. 8) of the Convention (para. 52 above).   60.      The Commission concludes, by 11 votes to 2, that there has been a violation of Article 13 (Art. 13) of the Convention (para. 57 above).         Secretary to the Commission             President of the Commission              (H.C. KRÜGER)                           (C.A. NØRGAARD)   Dissenting opinion of Mr.   Frowein           I regret that I am unable to share the view of the majority of the Commission.   A private school is not an agent of the Government. There is no direct responsibility of the United Kingdom for acts of teachers in private schools.   Although I accept that States have an obligation to guarantee by law, be it legislation or common law, the rights under Articles 3 and 8 of the Convention to pupils in private schools, no failure by the United Kingdom in this respect has been established.   The existence, in 1985, before the abolition of corporal punishment in State schools, of legal rules providing for corporal punishment in private schools cannot, in my view, create a violation of the Convention.   Dissenting opinion of Mr.   Schermers             The main complaint in this case is that the United Kingdom violated Article 3 of the Convention by permitting corporal punishment in a private school.   To find fault with the United Kingdom Government two conditions must be fulfilled:   (1) the Government must be responsible and (2) the punishment used must fall under Article 3. With respect to both conditions I have severe doubts.   These cumulative doubts prevented me from finding a violation of the Convention.   (1)      The responsibility of the Government           Education is a governmental task.   The Government bear responsibility for it and they must supervise the national school system.   However, the Convention does not prohibit the delegation of governmental tasks to private institutions.   To some extent, the Government will remain responsible for maintaining adequate educational standards, but their responsibility for methods of teaching and for matters of discipline will be less for private schools than for public education.   Under Article 2 of the First Protocol the Government must respect the right of parents to ensure education in conformity with their religious and philosophical convictions.   They must, therefore, leave some discretion to parents with respect to the methods of education.   Only when schools treat their pupils in a clearly unacceptable way are the Government to interfere.           It is of some relevance in the present case that the parents of the applicant had entered a binding contract with the school, in which contract it had been agreed that the school was authorised to cane pupils as a disciplinary punishment.   It is also relevant that the applicant himself knew of the possibility of caning and had apparently not protested against studying under such conditions.   The element of free choice of those concerned diminishes further any obligation of the Government to interfere.           I consider that there has been no violation of the Convention in the present case, partly for the reason that the Government cannot be held responsible for the disciplinary acts committed by the management of a private school, and partly for the reason that, insofar as there may be Government responsibility, their abstaining from interference in the management of the private school in question is not of such gravity that it leads to a violation of the Convention.   (2)      Responsibility presumed           Even assuming the responsibility of the Government is engaged in this case, I would query whether all corporal punishment is proscribed by the Convention.   In my personal opinion all corporal punishment is wrong from an educational point of view.   The use of violence breeds violence.   A person having been subjected to violence in his education will be more inclined to use violence against others, than a person educated without physical force.   On the other hand, it must be accepted that some people are of the opinion that corporal punishment can help to promote discipline and discipline is important in education, in particular in schools.   As Article 2 of the First Protocol guarantees a right of parents to decide on the education of their children, one must respect the right of parents to use moderate corporal punishment against their children or to send their children to a school which uses such punishment.   A total prohibition of all corporal punishment does not yet seem to be called for by present Western European standards.           Of course, there must be limits.   Corporal punishment may never be of such a nature that it infringes Article 3 of the Convention.   In many cases the Court and the Commission have held that acts of ill-treatment must be of a particularly serious nature to fall foul of Article 3.   The main question in the present case is whether the punishment was of such a serious nature that it infringed Article 3.   It is a matter of where one sets the threshold.   In the present case the County Court rejected a claim for damages for assault on the grounds that the punishment inflicted on the applicant had been moderate and reasonable.   Apparently it accepted the view expressed by a senior police surgeon that the injuries were "entirely consistent with normal caning" (whatever that may be).   The rejection of the claim for damages demonstrates that the County Court considered the corporal punishment in this case of a severity falling short of the Article 3 threshold on the domestic level.   The majority of the Commission thinks otherwise, mainly on the basis of the submissions of the applicant, as the Government were unable to offer more factual data.