CEDH · CASELAW;REPORTS;ENG — 18 septembre 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 25599/94                                  A                               against                         the United Kingdom                      REPORT OF THE COMMISSION                   (adopted on 18 September 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-26) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-19). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 20-26). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 27-75) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaints declared admissible           (para. 27). . . . . . . . . . . . . . . . . . . . .8        B.    Points at issue           (para. 28). . . . . . . . . . . . . . . . . . . . .8        C.    As regards Article 3 of the Convention           (paras. 29-56). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 56). . . . . . . . . . . . . . . . . . . . 15        D.    As regards Article 8 of the Convention           (paras. 57-61). . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 61). . . . . . . . . . . . . . . . . . . . 16        E.    As regards Article 13 of the Convention           (paras. 62-67). . . . . . . . . . . . . . . . . . 16             CONCLUSION           (para. 67). . . . . . . . . . . . . . . . . . . . 17                          TABLE OF CONTENTS                                                             Page        F.    As regards Article 14 of the Convention,           taken together with Articles 3 and 8 of the Convention           (paras. 68-71). . . . . . . . . . . . . . . . . . 17             CONCLUSION           (para. 71). . . . . . . . . . . . . . . . . . . . 17        G.    Recapitulation           (paras. 72-75). . . . . . . . . . . . . . . . . . 17   CONCURRING OPINION OF Mr. L. LOUCAIDES. . . . . . . . . . . 19   CONCURRING OPINION OF Mr. E.A. ALKEMA . . . . . . . . . . . 20   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 21   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 United Kingdom citizen, born in 1984.   He was represented before the Commission by Mr. M. Gardner, solicitor, of Messrs. Morgan Bruce Binks Stern, London.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr. Martin Eaton, of the Foreign and Commonwealth Office, London.   4.    The case concerns the corporal punishment of the applicant by his stepfather.   The applicant invokes Articles 3, 8, 13 and 14 of the Convention.   B.    The proceedings   5.    The application was introduced on 15 July 1994 by the applicant and his father and registered on 7 November 1994.   6.    On 26 June 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 12 October 1995 after an extension of the time-limit fixed for this purpose.   The applicants replied on 29 December 1995 after an extension of the time-limit.   On 5 December 1995, the Commission granted the applicants legal aid for the representation of their case.   8.    On 13 May 1996 the Commission decided to hold a hearing of the parties.   The hearing was held on 9 September 1996.   The Government were represented by MM. Martin R. Eaton, Agent of the Government, David Pannick, QC and Mark Shaw, Counsel, Ms. Caroline Price, Adviser, Home Office, Ms. Sue Ryan and Ms. Sue Ball, Advisers, Department of Health and Ms. Betty Moxon, Adviser, Home Office. The applicants were represented by MM. Allan Levy, QC and Mr. Peter Duffy, Counsel, Michael Gardner, Solicitor, Peter Newell, Adviser and Nicholas Grief, Pupil Barrister.   9.    On 9 September 1996 the Commission declared the application admissible to the extent that it was brought by the applicant, and inadmissible to the extent that it was brought by the applicant's father.   10.   The text of the Commission's decision on admissibility was sent to the parties on 18 September 1996 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted observations on 21 October 1996. No observations were submitted by the Government.   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 of the Convention and after deliberations and votes, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   H. DANELIUS                L. LOUCAIDES                M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                A. PERENIC                P. LORENZEN                K. HERNDL                E.A. ALKEMA   13.   The text of this Report was adopted on 18 September 1997 by the Commission 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 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, 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.   The applicant and his brother were placed on the local Child Protection Register in May 1990.   The applicant was put on the Register because of "known physical abuse".   After the co-habitee of the applicant's mother admitted hitting the applicant with a cane, he was given a police caution.   Both boys were removed from the Child Protection Register in November 1991.   The co-habitee subsequently married the applicant's mother and became his stepfather.   18.   In February 1993, the headteacher at the applicant's school reported to the local Social Services Department that the applicant's brother had disclosed that the applicant was being hit with a stick by his stepfather.   The stepfather was arrested on 5 February 1993.   He was released on bail the next day.   19.   The stepfather was charged with assault occasioning actual bodily harm and tried in February 1994.   The judge's summing-up refers to the evidence and the relevant issues as follows:        "... What is it the prosecution must prove?   If a man      deliberately and unjustifiably hits another and causes some      bodily injury, bruising or swelling will do, he is guilty of      actual bodily harm.   What does unjustifiably mean in the context      of this case?   It is a perfectly good defence that the alleged      assault was merely the correcting of a child by its parent, in      this case the stepfather, provided that the correction be      moderate in the manner, the instrument and the quantity of it.      Or, put another way, reasonable.   It is not for the defendant to      prove it was lawful correction.   It is for the prosecution to      prove it was not.        This case is not about whether you should punish a very difficult      boy.   It is about whether what was done here was reasonable or      not and you must judge that...        ... What are the two arguments put before you?   The prosecution      say this boy was caned.   He was caned hard as is evidenced, they      say, by the bruises.   That it occurred over the period of a week      before his examination on 5 February of last year.   They say on      several occasions.   They say never in front of the boy's mother.      They say it was excessive, no matter how difficult a nine year      old was and that it was not lawful correction.   That is their      case.        The defence say here was a boy who on all accounts was very, very      difficult to handle.   He would not respond to school discipline.      He was not helped by ... Doctor B.   He would not respond to      anything that the social services could do and he could not be      controlled at home. They do not deny, effectively, the repeated      caning.   They say it was necessary, justified and reasonable and      he may have bruised more easily because of the drugs he was      prescribed for asthma or because he simply bruised more easily.      Those are the two arguments to consider, condensed I hope, to the      minimum.        What was the evidence for the prosecution first of all?   On      5 February last year [the applicant] was examined by an      experienced consultant paediatrician at the ... Hospital ...      Doctor V.   She noticed a number of bruises on his body.   You now      have a photocopy of that diagram that she drew at the time      putting them actually on the body...        First she referred to a fresh red linear bruise on the back of      the right thigh.   She thought that was a single blow.   She      described the blood being squeezed out of the capillaries, do you      remember, to cause those two lines on either side.   She thought      it was consistent with a blow from a garden cane that we have      heard about and she thought it was an injury which occurred      within twenty-four hours of that examination on the 5th but she      said it is very difficult to be sure and to estimate.   She could      be out on that.        The second injury that she saw which you may think relevant was      a double bruise on the back of the left calf, also linear.   She      thought that looked a little bit older than the first one.   She      said it showed two separate linear lines and that meant two      separate blows.   I am not going to remind you of the third injury      she referred to.   If you think they are important, obviously you      will consider them but they were the irregular brownish bruises      that did not fit in with the caning.   At the very most and there      is no evidence of it, poking with the end of the cane.   No one      suggested that happened in this case.        The fourth injury that she described two feint lines on the back      of the left thigh.   They looked similar to the other in type.      Two blows she thought had caused them.   'I think they were      one-two days old.'        The fifth injury then.   Linear bruises on the right bottom. They      were linear.   There were three at different ages.   'I thought      they were older than the ones on the thigh and the left calf.      I thought they were up to one week old.   I thought they were      caused possibly at different times to each other.'   That is the      three she was referring to.   Those three bruises caused at      different times to each other. 'They were oblique and suggested      3 separate times.'        Finally number six, she referred to the two circular brownish      bruises but again, you may think they have nothing to do with the      case.   It is a matter for you, but she also included in the      number six a fading linear bruise, probably several days old.      She said in general terms, 'I thought the bruising was consistent      with the use of a garden cane and more than one time because the      bruises were at different stages.   Two was an absolute - twice      that is - was an absolute minimum.'   The most recent bruises she      put within twenty-four hours.   The oldest, about one week.   She      said that for a cane to cause bruising it must be used with      considerable force.   'It squeezes blood out of the capillaries.      A cane used with less force would not cause bruising.   If it was      used over clothing that would soften the blow considerably      because it would spread the force.'        She confirmed, as you know that Doctor C. was treating the      [applicant] as a consultant for asthma and for behaviour problems      and it seems to be agreed all round that this little boy at that      time at any rate was a difficult little boy.   She was asked by      Mr. B. about vitamin C deficiency, scurvy and said she had never      seen a child with scurvy in her whole career.   Vitamin K      deficiency, again, it was suggested that would cause a tendency      to bruise in children.   She said, 'Yes, in children with liver      disease or babies,' but [the applicant] in her opinion was not      suffering from it.   She said, 'I felt the general bruises on his      body were not excessive.'   That was her explanation if you      remember as to why she did not conduct any blood tests on the      boy.        ... [S]he said of Prednisolone [which the applicant was taking]:      'They are steroids.   They can affect a child's behaviour but it      is more likely to do that if it is given in long courses and in      high doses for a long time.   It can cause skin thinning.'   But      she said, 'I think if there was a bruising problem it would have      shown itself in the places where children are usually bruised in      the rough and tumble of life.'   She said of Prednisolone. 'I      don't think it would have any effect on [the applicant's]      bruising in short courses.'        ... [Doctor B.] said in terms, in answer to [prosecuting counsel]      ultimately, that fifty Prednisolone tablets prescribed in      December 1992 would not lead to skin thinning or cause [the      applicant] to bruise more easily.        So what did [the applicant] tell you?   His evidence was not      really in dispute, was it? ...   He was asked about the visit to      hospital.   'Something had happened before I went to hospital.      I had the stick at home.   X. gave me the stick.   He gave it to      me more than once.   I can't remember how many times.   Sometimes      he would hit my legs.   It hurt a lot when he did this.   It made      me cry.   It was a stick out of the garden.   X. kept it in a      cupboard in the house.   I don't know why X. gave me the stick.      He didn't say anything.   It hurt a bit and a lot when I was given      the stick.   I can't remember how long before that visit to      hospital X. gave me the stick.   Sometimes it was daytime.      Sometimes it was nighttime.   It was always at home.'        The little boy confirmed ... that the head master ... spoke to      him about stealing from his friends ...   He confirmed there was      an incident when he had got hold of a knife and taken it over to      the two year old ... 'Mummy and X. were cross.   X. hit me with      a stick only after [he] had warned me many times about being      naughty. I can't remember what naughty thing I had done before      I went to see the Doctor.'        ... The defence did call a witness, [the applicant's mother] ...      She said that [the applicant] had been, my words, 'real trouble      really ever since he was two years old.'   She used the      expression: 'He was a handful.' ...   She said: '[The applicant]      has always been one to have a lot of bruises.   My mother and I      bruise easily.   We are asthmatics.   [The applicant] always has      a lot of bruises.'        ... She said that she was unaware that her husband had been      caning [the applicant].   She did know that the cane was in the      house.   She had never seen him actually use it.   She had seen him      threatened with it.   'I had seen the defendant hold the cane to      [the applicant], though I hadn't done so.   I did approve of my      husband threatening [the applicant] with the cane, but not      beating him with the cane.   I don't know when I slap [the      applicant] if I bruise him or not.'"        The jury found the applicant's stepfather not guilty of assault occasioning actual bodily harm by a majority verdict.   B.    Relevant domestic law and practice   20.   "Assault occasioning actual bodily harm" (a more serious form of assault than "common assault") is made an offence by Section 47 of the Offences against the Person Act 1861, as amended.   For the purpose of this section an assault includes an act by which a person intentionally or recklessly inflicts personal violence upon another.   "Actual bodily harm" for the purposes of the section includes any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling.   Prosecutions under the section are normally undertaken by the Crown and the penalty on conviction is a maximum of five years' imprisonment.   21.   In addition, it is an offence under Section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health.   The maximum penalty on conviction is a fine of ten years' imprisonment.   22.   Under the civil law, if no criminal prosecution has been brought for common assault, physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages.   23.   A summary of the then current domestic law and practice relating to the use of corporal punishment on a child by a parent or a person in loco parentis, including a teacher, is set out in the judgment of the European Court of Human Rights in the Costello-Roberts case (Eur. Court HR, Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, pp. 54-56, paras. 13-21).   As is there noted, it was a defence to both criminal charges and civil claims for assault that the person against whom the charges or claim was made was a parent or teacher administering reasonable and moderate physical punishment with a proper instrument in a decent manner.   24.   Since the Court's judgment in the Costello-Roberts case the law as regards the use of corporal punishment by teachers has been amended by Section 293 of the Education Act 1993.   According to the new provisions (Section 47 (1A) and (1B) of the Education (No. 2) Act 1986), corporal punishment by a teacher cannot be justified if the punishment is inhuman or degrading.   In determining whether punishment is inhuman or degrading, regard is to be had to "all the circumstances of the case, including the reason for giving it, how soon after the event it is given, its nature, the manner and circumstances in which it is given, the persons involved and its mental and physical effects".   25.   The law relating to the use of corporal punishment on a child by a parent or other persons in loco parentis remains unchanged:   they are protected by the law when the punishment is moderate and reasonable in the circumstances.   The concept of "reasonableness" permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.   26.   In criminal proceedings for assault, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, that an assault was unlawful.   The prosecution must prove that the harm was not the result of reasonable punishment by someone entitled to administer it.   In civil proceedings for assault, whilst the substantive law test is the same, the burden of proof of establishing that punishment was reasonable is on the defendant, on a balance of probabilities.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   27.   The Commission has declared admissible the applicant's complaints concerning the caning of the applicant by his stepfather.   B.    Points at issue   28.   The points at issue in the present case are:   -     whether there has been a violation of Article 3 (Art. 3) of the      Convention;   -     whether there has been a violation of Article 8 (Art. 8) of the      Convention;   -     whether there has been a violation of Article 13 (Art. 13) of the      Convention;   -     whether there has been a violation of Article 14 (Art. 14), taken      together with Article 3 (Art. 3) or Article 8 (Art. 8) of the      Convention.   C.    As regards Article 3 (Art. 3) of the Convention   29.   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."   30.   The applicant contends that the corporal punishment to which he was subjected by his stepfather in the present case amounted to degrading punishment within the meaning of Article 3 (Art. 3) of the Convention.   The applicant further contends that State responsibility attaches in respect of the violation of Article 3 (Art. 3) by reason of the failure of the United Kingdom through its domestic legal system adequately to protect children within its jurisdiction from degrading treatment or punishment by parents or those in loco parentis.   He relies in this regard on the provisions of Article 1 (Art. 1) of the Convention and on the Commission's Report in the case of Costello-Roberts in which the Commission held that an obligation was imposed on Contracting States by Article 1 (Art. 1) of the Convention to secure the rights guaranteed by Article 3 (Art. 3) of the Convention.   31.   The Government dispute that the punishment to which the applicant was subjected attained the minimum level of severity to amount to degrading treatment for the purposes of Article 3 (Art. 3) of the Convention.   The Government further contend that no responsibility can in any event attach to the United Kingdom under Article 3 (Art. 3) in respect of the punishment administered by the applicant's stepfather. The Government argue that no direct responsibility can attach to the State under the Article in respect of the acts of a parent or step-parent within the home and, in this regard, contrast the position with that of the use of corporal punishment in school, where States are under an obligation to provide education and hence have a direct responsibility for a school's disciplinary system, including that operating within a private school (see Eur. Court HR, Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, pp. 57-58, paras. 26-28, hereafter "the Costello-Roberts judgment"). It is further denied by the Government that any State responsibility could be founded in the present case on the decision of the jury to acquit the applicant's stepfather.   As to the applicant's contention that State responsibility attaches through the failure of the legal system adequately to protect the applicant, the Government dispute that the content of the relevant law failed to secure the rights guaranteed by Article 3 (Art. 3) of the Convention.   32.   The applicant's complaint under Article 3 (Art. 3) of the Convention accordingly gives rise to two principal issues:   whether the applicant was subjected to degrading treatment or punishment within the meaning of Article 3 (Art. 3) and, if so, whether State responsibility attaches to the United Kingdom in respect of such treatment or punishment, with the consequence that there has been a violation of that Article in the present case.   33.   As to the nature of the treatment to which the applicant was subjected, the Commission notes that, in his summing up at the close of the trial of the applicant's stepfather, the judge referred to six injuries which had been found on examination of the applicant.   One of the injuries (the third referred to) was almost certainly unconnected with the case.   The others were:   -     a fresh red linear bruise on the back of the right thigh,      estimated to have occurred within 24 hours of the examination;   -     a double bruise on the back of the left calf, also linear, a      little older than the first one;   -     two feint lines on the back of the left thigh, which were similar      in type to the others, and which were thought to be one or two      days old;   -     a fading linear bruise, probably several days old.   34.   It was not contested by the defence at the trial that the injuries found on the applicant and described by the trial judge had been caused by the applicant's stepfather with the use of a garden cane.   The Commission, accordingly, finds it established that the above injuries were inflicted on the applicant by his stepfather.   35.   The applicant underlines that the physical treatment in the present case, which resulted in these injuries, was considerably more serious than in the Costello-Roberts case, which was itself regarded as a borderline case by the European Court of Human Rights.   He sees no reason to expect lower standards of protection for children in the home that at school, and considers that there is nothing inherently less inhuman or degrading when a child is corporally punished in the home than in an "institutionalised" setting.   He argues that, for example, no-one would expect a woman to have less legal protection from assault in the home than, say, in the workplace.   He also submits a report from his special needs co-ordinator which shows that since he has been with his father, and has no longer been subjected to the discipline of his stepfather, his appearance and behaviour have improved greatly.   36.   The Government submit that there is a very real difference between corporal punishment in the home and corporal punishment in school.   They submit that corporal punishment in the home is far less likely to involve the ritualised elements and public humiliation which may establish a breach of Article 3 (Art. 3).   The Government also underline that there is no suggestion in the present case that the corporal punishment caused injury more severe than minor bruising or that it had any severe or long lasting effects:   in this regard, reliance is placed on the evidence before the jury that even this minor bruising did not establish that the applicant had been hit very hard, since he bruised easily.   As to the report from the applicant's special needs co-ordinator, the Government note that the report does not suggest that his difficult behaviour was caused by the corporal punishment, but indicates only that the applicant's behaviour has improved since he moved to live with his father.   37.   In its Costello-Roberts judgment (p. 59, para. 30), the Court recalled that it had already held that corporal punishment may constitute an assault on a person's dignity and physical integrity as protected under Article 3 (Art. 3).   However, the Court also recalled that, in order for punishment to be "degrading" and in breach of Article 3 (Art. 3), the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment:        "The assessment of this minimum level of severity depends on all      the circumstances of the case.   Factors such as the nature and      context of the punishment, the manner and method of its      execution, its duration, its physical and mental effects and, in      some instances, the sex, age and state of health of the victim      must all be taken into account" (ibid., the Court citing its      Ireland v. the United Kingdom judgment of 18 January 1978, Series      A no. 25, p. 65, para. 162, Tyrer v. the United Kingdom judgment      of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30 and      Soering v. the United Kingdom judgment of 7 July 1989, Series A      no. 161, p. 39, para. 100).   38.   In the Costello-Roberts case itself, both the Commission and the Court found that the punishment of the 7 year-old applicant, which consisted of three smacks on the buttocks, through shorts, with a soft-soled shoe apparently causing no visible injury, did not attain the minimum level of severity to amount to a violation of Article 3 (Art. 3).   By contrast, in two cases involving corporal punishment in the school context, the Commission found that the punishment had attained the Article 3 (Art. 3) threshold of severity.   In the case of Warwick (Comm. Rep. 18.7.86, D.R. 60, p. 5) the Commission found that the administering of one stroke of the cane to the hand of a 16 year-old girl by a man, in the presence of another man, and which left physical injury the effects of which were visible for over a week, was "degrading ... punishment" within the meaning of Article 3 (Art. 3).   In the case of Y v. the United Kingdom (Comm. Rep. 8.10.91, Eur. Court HR, Series A no. 247-A, p. 14, paras. 44, 45), the Commission found that the caning - four times, on the buttocks through trousers - of a 15 year-old schoolboy, which left marks for some time, amounted to "degrading treatment and punishment" within the meaning of Article 3 (Art. 3).   39.   The Commission notes that the punishment to which the applicant, a 9 year-old boy, was subjected in the present case was considerably more severe in degree and in its effects than that in the Costello-Roberts case.   It appears from the uncontested evidence before the criminal court that the applicant was beaten with a garden cane on two or, more probably, three occasions in the course of one week and that at least some of the strokes were inflicted directly onto the bare skin.   As in the cases of Warwick and Y, the strokes were severe enough to leave bruises which, in the present case, were visible several days later.   According to the doctor who examined the applicant, for a cane to cause bruising, it must be used with considerable force, particularly if it is administered over clothing.   As to the contention that there was evidence that the applicant bruised easily the Commission observes that the same doctor expressly rejected the suggestion that a vitamin deficiency or the taking of asthma tablets might have caused the applicant to bruise more easily, noting that, if the applicant had been prone to bruising, bruises would have been expected on other parts of the body "where children are usually bruised in the rough and tumble of life".   The Commission further notes the applicant's own evidence at the trial to the effect that the beatings were frequent and "hurt a lot", particularly when he was beaten on the legs.   The severity of the punishment to which the applicant was subjected is further borne out by the fact that, in contrast to the case of Costello-Roberts, the prosecuting authorities deemed the applicant's injuries to be sufficiently serious to merit the initiation of criminal proceedings against the applicant's stepfather.   40.   The Government place emphasis on the fact that the caning of the applicant was not administered in school or by public authorities but in the applicant's home by his stepfather and thus lacked the element of "institutionalised violence" which the Court in its above-mentioned Tyrer judgment regarded as an aggravating factor (p. 16, para. 33). While it is true that the punishment was administered privately at home, rather than in the institutional setting of a school, this fact cannot in the view of the Commission be determinative.   As the Commission observed in its Report in the case of Y, the injuries inflicted on the applicant (in this case, a young boy) are unacceptable "whoever were to inflict the punishment, be it parent or teacher" (para. 44).   41.   The Commission accordingly considers that, having regard to the circumstances of the present case, the corporal punishment inflicted on the applicant caused him significant physical injury, pain and humiliation which attained such a level of seriousness that it constituted degrading treatment or punishment within the meaning of Article 3 (Art. 3) of the Convention.   42.   The question remains whether the State may be held responsible for such treatment or punishment, administered as it was not by an agent of the State or by a teacher but by the applicant's stepfather.   43.   The Commission observes in the first place that no direct responsibility can attach to the United Kingdom under the Convention for the acts of the applicant's stepfather.   In this respect the position differs from that involving the use of corporal punishment by a teacher in school, whether a State or independent school.   In concluding in the Costello-Roberts case that the direct responsibility of the United Kingdom was engaged under Article 3 (Art. 3) of the Convention for the acts of the headmaster of a private school, the Court placed emphasis on three factors:   (1) the State had an obligation to secure to children their right to education under Article 2 of Protocol No. 1 (P1-2), and functions relating to the internal administration of a school, such as discipline, could not be said to be merely ancillary to the educational process; (2) the fundamental right of everyone to education was a right guaranteed equally to pupils in State and independent schools, no distinction being made between the two; (3) a State could not absolve itself from responsibility by delegating its obligations to private bodies or individuals.   These factors led the Court to conclude that        "... in the present case, which relates to the particular domain      of school discipline, the treatment complained of although it was      the act of a headmaster of an independent school, is none the      less such as may engage the responsibility of the United Kingdom      under the Convention if it proves to be incompatible with      Article 3 (Art. 3) or Article 8 (Art. 8) or both" (p. 58,      paras. 27-28).   44.   No similar reasoning can in the view of the Commission apply in a case where the acts complained of are those of a parent or step-parent.   Moreover, no direct responsibility for the treatment in question can attach to the State by reason of the jury's acquittal of the applicant's stepfather.   In this regard a distinction is to be drawn between a case where the verdict or decision of a jury directly infringes a Convention right (as, for example, by an excessive award of damages:   Eur. Court HR, Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B) and a case such as the present where a substantive right in the Convention is violated by a private individual who is acquitted in criminal proceedings by the verdict of a jury.   45.   The Commission recalls, however, that it has previously held that, even in the absence of any direct responsibility for the acts of a private individual under Article 3 (Art. 3) of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by Article 1 (Art. 1) of the Convention "to secure ... the rights and freedoms defined in Section 1 of this Convention".   In its Report in the Costello-Roberts case, the Commission recalled that it had held in its decision on admissibility 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 for children's physical and emotional integrity" (para. 37).   The Commission went on to quote from its admissibility decision in which it had found 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" (ibid).   While, as noted above, the Court in its Costello-Roberts judgment preferred to found its decision as to State responsibility on the direct responsibility of the United Kingdom for the disciplinary system operating within schools, the Court, too, observed that it had        "... consistently held that the responsibility of a State is      engaged if a violation of one of the rights and freedoms defined      in the Convention is the result of non-observance by that State      of its obligation under Article 1 (Art. 1) to secure those rights      and freedoms in its domestic law to everyone within its      jurisdiction" (p. 57, para. 26; see mutatis mutandis, the Young,      James and Webster v. the United Kingdom judgment of      13 August 1981, Series A no. 44, p. 20 para. 49).   46.   As in the Costello-Roberts case, the Government accept for the purposes of the present proceedings that such an obligation existed as regards securing the rights guaranteed by Articles 3 and 8 (Art. 3, 8). However, it is disputed that the content of the relevant law failed to secure the rights guaranteed by either Article.   The Government underline that the content of the criminal law, which allows corporal punishment only where carried out in a moderate and reasonable manner, is consistent with Article 3 (Art. 3) which does not per se prohibit corporal punishment.   It is contended that the circumstances of the present case do not show that the domestic law is inadequate to protect the rights guaranteed by the Article; the only inference which can be drawn from an acquittal is that the jury were not satisfied beyond a reasonable doubt that the punishment administered to the applicant was not moderate and reasonable.   The Government point to a series of cases involving corporal punishment in which criminal convictions have resulted and argue that the jury, who heard the evidence, are far better placed than the Commission to assess whether the punishment exceeded what is reasonable and moderate in all the circumstances. Finally, the Government emphasise that the criminal law is not the only form of legal control:   in addition, there exists civil liability for assault if a parent inflicts corporal punishment which is not moderate or reasonable.   It is pointed out that in a civil action, by contrast with a criminal trial, the burden of proof in relation to the reasonableness of the punishment lies on the defendant on a balance of probabilities.   In addition, there exist other legal controls, in the form of care orders and supervision orders under Section 31 of the Children Act 1989, which it is claimed are better adapted to promoting the welfare of the child than criminal proceedings.   47.   The Commission observes at the outset that, while the choice of means designed to secure compliance with Convention rights in the sphere of the re