The European Commission of Human Rights sitting in private on
13 October 1986, the following members being present:

                MM C.A NØRGAARD, President
                   J.A. FROWEIN
                   G. JÖRUNDSSON
                   G. TENEKIDES
                   S. TRECHSEL
                   B. KIERNAN
                   A.S. GÖZÜBÜYÜK
                   A. WEITZEL
                   J.C. SOYER
                   H.G. SCHERMERS
                   H. DANELIUS
                   G. BATLINER
                   J. CAMPINOS
               Mrs G.H. THUNE
               Sir Basil HALL
                Mr F. MARTINEZ

                Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 August 1980 by
D.W.A and D.A. against the United Kingdom and registered on 20 October
1980 under file No. 9146/80;

Having regard to:

-       the report provided for in Rule 40 of the Rules of Procedure
of the Commission;

-       the Commission's decision of 11 December 1980 to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on admissibility and merits under
Article 3 (art. 3) of the Convention;

-       the observations submitted by the respondent Government on
1 July 1981 and the observations in reply submitted by the applicants on
12 January 1981;

-       the supplementary observations submitted by the Government on
19 March 1982 and the applicants' observations in reply, as well as
their observations in the light of the Court's judgment in the case of
Campbell and Cosans, submitted on 22 July 1982;

-       the Commission's decision of 14 October 1982 that the
Government should be invited to submit written observations on the
complaints by the first applicant under Article 2, second
sentence, of Protocol No. 1 (P1-2) to the Convention;

-       the observations on these complaints submitted by the
Government on 1 March 1983 together with the observations on the
applicants' reply of 22 July 1982.

-       the Commission's decision of 11 March 1985 to declare the
first applicant's complaint under Article 2 of Protocol No. 1 (P1-2)
to the Convention inadmissible and to adjourn the remainder of the
application;

-       the Commission's decision of 11 March 1985 to declare the
first applicant's complaints under Article 2 of Protocol No. 1
(P1-2) to the Convention inadmissible and to invite the parties to
submit written observations on the issues the application raises under
Article 8 (art. 8) of the Convention;

-       the observations submitted by the Government on 1 May 1985 and
the applicants' observations in reply submitted on 3 October 1985.

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the parties may
be summarised as follows:

The first applicant is a United Kingdom citizen and residing in
Chesterfield, Derbyshire, England.  The second applicant is his son,
who was born in February 1968.  In the proceedings before the
Commission the applicant is represented by Mr. T.M. Napier of
Messrs. Irwin Mitchell & Co., solicitors in Sheffield.

On 3 September 1979 the second applicant became a pupil at Tapton
House School, Chesterfield, Derbyshire.  It appears that he was the
third of the first applicant's children to attend this school.

On 13 September 1979 the second applicant returned from school at the
usual time informing his mother that he had been given two strokes of
the cane in the mid-morning of that day.

With respect to the reasons for the caning the applicants submit that
it was stated by the school that the second applicant was caned
because he had thrown a conker from the 4.00 p.m. bus and that the
conker had hit a lady in her face, breaking her glasses and causing
lacerations.  This incident was said to have happened on the afternoon
before the morning when the caning took place.  The following morning
the second applicant was challenged about the alleged conker throwing
in an interview with a teacher and the deputy headmaster.  The boy
denied the allegations but was not believed and the caning took place
after he had been told that it was "the cane or the police" in his
case.

The Government, however, submit that the second applicant was informed
that he was to be caned for hitting a girl in the face with a conker.

Three other boys were at the same time interviewed about the said
incident.  To the applicants' knowledge two of these boys were also
caned.  The first applicant understands that the parents of one of
these boys were contacted by the school prior to the proposed caning
to see whether they had any objections.  He does not know, on the
other hand, whether the parents of the other boys were consulted
beforehand.  However, he himself was not so consulted, nor was his
wife.

It is submitted that because the second applicant was still unable to
sit down properly and appeared still to be in a certain amount of pain
when he came home, his mother examined the caning marks and was
greatly alarmed by what she saw.  The first applicant claims that he
was himself as alarmed as his wife had been upon seeing his son's
injuries.

The Government, however, submit that the second applicant, after the
caning, was seen to the playing football later in the day, without
apparent ill-effects.

The first applicant and his wife, thereupon, brought their son to the
Accident and Emergency Department at Chesterfield Hospital where he
was examined by the Consultant in charge.  The applicants claim that
the Consultant expressed concern about the force that had been applied
to the second applicant in the punishment he had received.  The
Consultant took photographs of the injuries and recommended that the
matter be reported to the police.  The photos did not turn out
however.  He did not give any medical treatment because there was none
that could usefully be given.  In his medical report of
29 October 1979 the Consultant, inter alia wrote the following:

"On examination there were two marks across the backside.  The centre
of the marks was white but the surrounding area was red. In medical
terminology it showed what is referred to as the triple reaction.  In
measurement the top left mark was 2 3/4", the width 1/4".  The bottom
left was 2 3/4", the right bottom measured 2 1/2", the bottom one
measured 1".  The width was 1/4". <The second applicant> attended as
an out patient until 14 September 1979.  When he attended on this date
the marks were already fading.  There was no blistering present.  He
was discharged.

Opinion:  There is no doubt in my mind that these marks are compatible
with the history of the case that they were made with a cane.  As to
the amount of force necessary to cause this type of injury, my opinion
is that there must have been some force used so that the markings were
present.

As to the ultimate prognosis, I feel that these marks should
completely disappear.  When I last saw him on 14 September 1979 they
were already fading."

After leaving the hospital on 13 September the first applicant went
together with his wife and son to the local police station in
Chesterfield to report the incident.  A Detective Constable
immediately took a statement from him and saw the boy's injuries but,
according to the applicants, it has not been possible to obtain a
statement from him to confirm what he saw.  The reason for this is,
allegedly, a letter of 4 March 1980 from the Derbyshire Constabulary
to the applicants' solicitors where it was stated, inter alia, that
"it is agreed policy that interview with police officers will only be
granted on receipt of a Certificate that appearance has been entered
in an action or, in a County Court Case, a Notice of Defence has been
delivered, or, alternatively, after service of a Subpoena." The
applicants also contend that the said Detective Constable advised the
first applicant's wife not to go to the school to complain about what
had happended but that she should leave the matter in the hands of the
police.

On 20 September 1979 a police officer and a sergeant visited the
applicants' home to ask the second applicant some more questions that
had arisen from the investigations they had made.

A few weeks later the first applicant's wife telephoned the police to
find out whether they were going to take action.  She was informed
that the file was with the Police Prosecutions Department for
consideration.  During the following week the aforementioned police
officer and sergeant again visited the first applicant's house and
informed his wife that they were not going to take any criminal
proceedings against the teacher who had caned their son.

On 11 March 1980 the first applicant lodged an application for legal
aid in order "to prosecute an action as father and next friend of his
son" in the County Court for damages for personal injuries received on
13 September 1979.

On 18 June 1980, the application was dismissed by the Local Committee
of the Law Society since the first applicant had not shown that he had
reasonable grounds for taking, defending or being a party to the
proceedings.  The Committee stated furthermore that it did not
consider that the application disclosed any cause of action and "there
was in its view no evidence that this was not a punishment lawfully
and properly carried out".

The first applicant appealed against this decision.  However, on
24 July 1980 this appeal was dismissed by the Area Committee.  The
Committee stated in its decision that it was not satisfied that there
was any reasonable prospect of successfully suing the teacher for the
injury alleged to have been caused to the first applicant's son. There
was no evidence that the punishment was unlawful or unreasonable in
degree.  Furthermore, even if it could be established that the
defendant had acted unlawfully, the amount of damages recoverable
would be too small to justify the cost of legal proceedings.

In a letter of 11 March 1980 to the headmaster of Tapton House School,
the applicants' solicitors stated that a member of his staff had
applied two strokes of the cane to the second applicant on
13 September 1979 and that this amounted to an assault which caused
serious injury because excessive force was used.  Damages were claimed
for the personal injuries sustained by the second applicant as a
result of this assault.

In a letter of 24 March 1980 the first applicant himself also
complained to the Derbyshire County Council regarding the caning of
his son.  It would appear that he also claimed damages.

In his reply of 23 April 1980 the Clerk and Chief Executive of this
council stated as follows:

"After investigation into this matter I am quite satisfied that the
punishment administered by Mr. D. was administered strictly in
accordance with the County Councils Punishment Regulations and that it
was a lawful punishment properly administered for a breach of school
discipline.  There was a witness, the Deputy Headteacher, present when
the punishment was inflicted and it would appear that the force used
was reasonable and moderate, that the punishment was not dictated by
bad motive or temper and that it was carried out by a properly
delegated teacher.  As far as I am aware there is no evidence that the
boy was excessively beaten, he received two strokes of the cane, and
indeed my evidence is that he suffered no discomfort.

I must therefore reject your claim on behalf of the County Council."

COMPLAINTS

The applicants allege that the caning of the second applicant amounts
to a violation of Article 3 (art. 3) of the Convention.

The applicants claim that they were not aware of the contents of
Derbyshire County Council's punishment regulations but insofar as
those regulations allow for the administration of corporal punishment
in schools in Derbyshire they maintain that this amounts to a breach
of the Convention.

In the applicants' view there can be no doubt that the caning of the
second applicant was unjustified.  They submit that he could not have
been responsible for throwing the conker as alleged because he had
stayed behind at school for football practice and had gone home on the
5.40 p.m. service bus instead of the 4.00 p.m. school bus.

The applicants further submit that even if the second applicant had
been responsible for the alleged act, they do not accept that it was
proper for him to be caned as a form of punishment. Moreover, the
force with which the caning was given was excessive and amounted to an
unlawful assault on the second applicant.

As to Article 26 (art. 26) of the Convention

The applicants submit that in the absence of legal aid they were
unable to take civil proceedings against the teacher responsible for
the caning and/or the school and/or Derbyshire County Council. The
same problem also applies to the bringing of a private prosecution
against the responsible teacher in the Magistrates Court.  Therefore,
the applicants lodged a complaint with the Commission.  They consider
that the last decision taken in regard to their case is the letter,
dated 24 July 1980, from the Law Society giving notice of rejection of
their appeal against the decision of the Local Legal Aid Committee.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 August 1980 and registered on
20 October 1980.  On 2 December 1983, counsel informed the Commission
that the first applicant's son, around whom the case revolves, should
also be considered as an applicant.

On 11 December 1980 the Commission decided to bring the application to
the attention of the respondent Government and invited them to submit
their observations on the admissibility and merits of the application
in so far as Article 3 (art. 3) of the Convention was concerned. The
Government were not asked to submit observations on the first
applicant's complaints under Article 2 of Protocol No. 1 (P1-2) to the
Convention, pending the decision of the European Court of Human Rights
in the Campbell and Cosans case.

The Government's observations on the Article 3 (art. 3) issues were
received on 15 July 1981, the applicant's observations in reply on
14 January 1982.

On 17 December 1981 the Commission decided to grant legal aid to the
applicants.

The Government submitted supplementary observations which were
received on 29 March 1982.

The applicant made further submissions in reply as well as in the
light of the Court's judgment in the case of Campbell and Cosans,
which were received on 29 July 1982.

On 14 October 1982, the Commission decided that the Government should
be invited to submit their observations on the complaint made by the
first applicant under Article 2 of Protocol No. 1 (P1-2).

The observations of the Government, as well as their observations on
the applicants' reply of 22 July 1982, were received on 4 March 1983.

On 14 July 1983 the Commission decided to adjourn its examination of
the application pending its consideration of Application No. 9471/81.

On 11 March 1985, the Commission declared the first applicant's
complaints under Article 2 of Protocol No. 1 (P1-2) to the Convention
inadmissible, and adjourned the remainder of the application.

SUBMISSIONS OF THE PARTIES

A.      The Government

The Government explain the organisation of education in England and
Wales and the position of the Derbyshire local education authority
with regard to corporal punishment.

The Government then comment on the facts of the case, as submitted by
the applicants.  As regards admissibility and merits, the Government
first observe that the applicants have not exhausted domestic remedies
as requried by Article 26 (art. 26) of the Convention since both
criminal and civil actions were available.

The Government further submit as follows:

Article 3 (art. 3)

The caning of the second applicant clearly did not amount to "torture"
and the Government assumes that the applicants are not contending that
it did.  As far as "inhuman" treatment or punishment is concerned it
is apparent from the Commission's case law that the treatment or
punishment must be of a particularly severe kind.  Both the Court and
the Commission were of the view that in the Tyrer case (which involved
a judicial birching consisting of three strokes of a birch on the bare
posterior) the suffering did not attain the level appropriate to
"inhuman" treatment or punishment.  In the view of the Government the
pain caused by the corporal punishment of the second applicant could
similarly not have attained the appropriate level.

As far as "degrading" treatment or punishment is concerned, the
ordinary meaning of the word "degrading" is very wide and requires to
be substantially narrowed in the context of Article 3 (art. 3).  If
this were not the case most punishments would be contrary to Article 3
(art. 3) since the fact that a person has been punished for a wrong
doing must inevitably lower a person in the eyes of others or in his
own eyes. This must be true whatever the nature of the punishment.

The Commission and the Court have for these reasons accepted that for
treatment of punishment to be regarded as "degrading" for the purposes
of Article 3 (art. 3), it must reach a certain level or threshold.
This level or threshold was expressed by the Commission in the Greek
case as follows:-

"treatment or punishment of an individual may be said to be degrading
if it grossly humiliates him before others or drives him to act
against his will or conscience."

This view was expressly re-affirmed by the Commission and by the Court
in the Irish State case.

The Court has also considered the matter in the Tyrer case. In its
judgment in that case (para. 30) the Court noted that a person may be
humiliated by the mere fact of being criminally convicted and stated
that what is relevant for the purposes of Article 3 (art. 3) is that
the person in question should be humiliated not simply by his
conviction but by the execution of the punishment which is imposed on
him.  The Court went on to note that "in fact in most if not all cases
this may be one of the effects of the judicial punishment", involving
as it does unwilling subjection to the demands of the penal system and
that -

"it would be absurd to hold that judicial punishment generally, by
reason of its usual and perhaps almost inevitable element of
humiliation is 'degrading' within the meaning of Art. 3 (art. 3).
Some further criterion must be read into the text.  Indeed Art. 3.
(art. 3) by expressly prohibiting 'inhuman' and 'degrading' punishment
implies that there is a distinction between such punishment and
punishment in general."

In the Court's view:-

"in order for punishment to be 'degrading' and in breach of Art. 3
(art. 3), the humiliation or debasement involved must attain a
particular level and must in any event be other than the usual element
of humiliation referred to in the preceding sub-paragraph."

The Court also pointed out that the assessment of the level of
humiliation or debasement:-

"is in the nature of things relative: it depends on all the
circumstances of the case and, in particular, on the nature and
context of the punishment itself and the manner and method of its
execution."

In the submission of the Government, it follows from the findings of
the Commission and the Court referred to in the preceding paragraphs
that punishment cannot in any event be "degrading" for the purposes of
Article 3 (art. 3) if the degree of humiliation resulting from it is
no more that the "usual" and "almost inevitable" element of
humiliation resulting from punishment for a wrong-doing.  It is only
if it exceeds that level by a sufficient margin that it is degrading
for the purposes of Article 3 (art. 3).  The particular level of
humiliation is required to be ascertained in the light of all the
circumstances of the particular case.

In the first instance, the Government submit that the applicants have
not shown that any humiliation resulted from the punishment or that if
any humiliation did result that it exceeded that which is the "usual"
and "almost inevitable" element of humiliation resulting from
punishment for the offending behaviour.  The Government submits that
just as the level of humiliation for the purposes of Article 3
(art. 3) needs to be judged in the light of the circumstances of the
particular case, so does the "usual" and "almost inevitable" element
of humiliation inherent in the punishment in question.  In particular
this must depend upon the seriousness of the act giving rise to the
punishment, the degree of censure which the act requires and, in turn,
the degree of humiliation and disgrace flowing from the censure.

In the present case, it is apparent from the facts that the second
applicant was guilty of serious acts of misconduct involving the risk
of physical injury to another person.  This behaviour cannot possibly
be condoned.  In the submission of the Government, any humiliation and
disgrace suffered by the second applicant would have arisen as a
natural consequence of being punished for his misbehaviour.  The facts
do not suggest that if any other form of punishment had been used
which constituted an appropriate alternative and which would have
brought home to the second applicant the seriousness of his misconduct
(such as suspension from school) the humiliation, if any, suffered by
him would have been any different. The same would be true if the
second applicant had been successfully prosecuted for assault in the
criminal courts as a result of any injuries caused.

Even if the degree of humiliation could be said to be greater by
virtue of the second applicant being caned rather than punished in
some other way, in the submission of the Government the degree of
humiliation cannot be said to have reached the required threshold.

The Court decided in the Tyrer Case that judicial birching constituted
degrading punishment for the purposes of Article 3 (art. 3). However,
in the view of the Government any humiliation suffered by the second
applicant falls far short of that present in the Tyrer case. That case
involved judicial beating - not a punishment inflicted by a person in
loco parentis and particular features not present in this case.
Briefly, these features were the "institutionalised" form of the
punishment - that is

" ... violence permitted by law, ordered by the judicial authorities of
the State and carried out by the Police Authorities of the State ..."

such "institutionalised" form being

" ... further compounded by the whole aura of official procedure
attending the punishment and the fact that those inflicting it were
total strangers to the offender ..."

The Court further found that the "institutional" nature of the
judicial corporal punishment had the further consequence of
introducing an undesirable element of delay into the procedure for
administering the punishment.

As the Court held in the Tyrer case, the question of the degree of
humiliation must be considered in the light of all the facts of the
particular case.  The Government submits that the circumstances of the
caning of the second applicant, considered as a whole, are in no way
comparable with the circumstances of the birching of Mr. Tyrer, and
especially with regard to the particular circumstances of that
birching referred to by the Court.  The punishment of the second
applicant was not an "institutional" form of punishment in the sense
in which that word was used by the Court in the Tyrer case.  It was
not a "judicial" punishment inflicted by the State for a criminal
offence but a punishment inflicted by a person in loco parentis. The
punishment had none of the "aura" of the birching of Mr. Tyrer in
that it was carried out by one teacher in the presence of another both
of whom were permanent members of the teaching staff of the second
applicant's school who were then, and continued to be, known to him.
The caning was not to the bare posterior as in the Tyrer case and
there was no delay, the punishment being carried out almost
immediately after the second applicant had been interviewed and the
offence established.

The Government submit that even if it could be shown that the second
applicant suffered humiliation of a kind to which Article 3 (art. 3)
applies (which has not been done) the humiliation suffered would have
fallen far short of the level required for the purpose of "degrading"
punishment under Article 3 (art. 3).

The Government therefore consider that the second applicant did not
suffer humiliation of a kind to which Article 3 (art. 3) applies and
that even if he did the level of humiliation suffered falls far short
of that required for the purposes of "degrading" punishment under
Article 3 (art. 3).

Article 8 (art. 8)

The Government submit that since the applicants have not sought to
allege violations of this Article (art. 8), their observations are
necessarily of a general nature.  Should the applicants subsequently
choose to allege a violation of Article 8 (art. 8), the Government
would wish to reserve the right to submit observations on the
applicants' submissions.

The Government are of the opinion that the only elements of Article 8
(art. 8) of potential relevance to the facts of this application are
respect for private and family life, and the observations are
accordingly so confined.

Respect for Family Life

The concept of family life in Article 8 (art. 8) was examined by the
Court in its judgment of 13 June 1979 in the Marckx Case (series A
no. 31).  In considering alleged discrimination (on grounds of
illegitimacy) against the child Alexandra Marckx, the Court expressed
the opinion (p. 21, para. 45) that "family life" within the meaning of
Article 8 (art. 8) "includes at least the ties between near relatives,
for instance those between grandparents and grandchildren, since such
relatives may play a considerable part in family life".  In the same
paragraph, the Court went on to say:

"'respect' for a family life so understood implies an obligation for
the State to act in a manner calculated to allow these ties to develop
normally".

In the "Belgian Linguistic" Case (judgment of 23 July 1968, Series A
no. 6, p. 33 para. 7), the Court stated that:

"this provision <i.e. Article 8 para. 1 (art. 8-1)> in no way
guarantees either a right to education or a personal right of parents
relating to the education of their children: its object is essentially
that of protecting the individual against arbitrary interference by
the public authorities in his private or family life".

This is borne out by the number of applications to the Commission
which relate to police or state supervision of one kind or another
(see, for example, the Klass Case (Judgment of 6 September 1978),
Application No. 5879/72 X v. UK and Application No. 8170/78 DR 16
p. 145).

In the case of X, Y and Z v. Sweden (5 EHRR 147), the Commission
examined the compatibility of Swedish domestic legislation prohibiting
corporal punishment with the convictions of the applicant parents that
their children should, in appropriate circumstances, be corporally
punished by their parents.  In rejecting the applicants' complaint
under Article 8 para. 1 (art. 8-1), the Commission stated (at
page 156) that:

" ... the mere fact that legislation, or the state of the law,
intervenes to regulate something which pertains to family life [does
not] constitute a breach of Article 8 (1) (art. 8-1) of the Convention
unless the intervention in question fails to respect the applicants'
right to family life."

In view of the relationship between the applicants and the fact that
they resided together at the material time it would appear beyond
question that they enjoyed a family life within the meaning of
Article 8 (art. 8), and accordingly that they are entitled to have
their right to family life respected.  In the government's submission,
however, assuming this conclusion to be correct, the facts alleged in
the application do not constitute evidence that the Government has
failed to respect any applicant's right under Article 8 (art. 8).

As the quotation above from the Belgian Linguistic case makes clear,
the Article (art. 8) is not concerned with the rights of parents
relating to the education of their children.  These are protected, in
particular by the second sentence of Article 2 of Protocol No. 1
(art. P1-2) to the Convention and in the present case the Commission
has declared the application inadmissible with regard to Article 2
(P1-2). What falls to be considered here, in the Government's
submission, is whether the administration of corporal punishment to
the second applicant amounted to action by the State in such a manner
as to impede or prevent the normal development of ties between him and
his parents.

While there may be disagreement on other questions of fact there is no
dispute that the second applicant received two strokes of the cane of
13 September 1979.  Later that day, accompanied by his parents, he
visited New Beetwell Police Station after attending at Chesterfield
Hospital.  In the Government's respectful submission, it is extremely
difficult to imagine how the administration of this punishment could
have impeded the normal development of ties between the second
applicant and his parents, or for that matter other close relatives.
His parents' prompt and solicitous response would seem, on the
contary, to suggest the strengthening of these ties.  To characterise
the invoking of a normal school disciplinary sanction on one occasion
as interference, let alone arbitrary interference, in the family life
of the second applicant would, in the Government's submission be
misconceived.

Respect for Private Life

In the case of Brüggeman and Scheuten v. Germany (Application
No. 6959/75) the Commission pointed out that the term "private life"
had not been exhaustively defined by the organs of the Convention.
Further, in the case of Van Oosterwijck v. Belgium (Application
No. 7654/76 DR 11 p. 194) the Commission noted the difficulty of
giving a general definition of "respect for private life".  In
Van Oosterwijck's Case, which concerned a trans-sexual, the Commission
repeated the statement made in the Brüggeman and Scheuten Case that
much legislation which affects the individual's capacity to develop
his personality cannot be considered as a whole as infringing the
right to private life.

The theme of the individual's capacity to develop his personality was
taken up by the Commission in the case of Andre Deklerck v. Belgium
(Application No. 8307/78 DR 21 p. 116).  The Commission stated in that
case:

"the scope of the right to respect for private life is such that it
secures to the individual a sphere within which he can freely pursue
the development and fulfilment of his personality.  In principle,
whenever the state enacts rules for the behaviour of the individual
within this sphere, it interferes with the respect for private life".

In the Government's respectful submission, while the concept of
"private life" has not been exhaustively defined by the organs of the
Convention, it is clear from the concepts of "respect" and
"interference" as explained in the jurisprudence of the Commission and
the Court that to constitute a violation of Article 8 (art. 8)
there has to be a substantial and unwarranted involvement in the
victim's private life, and the development and fulfilment of the
victim's personality must be seriously hampered by the State's action.

In the present application, it is submitted that the use of corporal
punishment on one occasion does not constitute lack of respect for, or
interference in, the applicants' respective private lives.  Further,
the Government submit that the "arbitrary" element in interference in
a person's private life is totally lacking in the facts of the two
incidents of punishment with which this application is concerned; such
punishment resulted, and resulted only, from the deliberate acts and
decisions of the persons being punished in contravention of school
discipline.  The powerlessness of the victim implicit in the
expression "interference" is completely, or largely, lacking.  The
Government accordingly reject any suggestion that this application
raises issues under Article 8 (art. 8), or that, if it does, the facts
alleged demonstrate violations of Article 8 (art. 8).

B.      The Applicants

The applicants claim that since the first applicant could not obtain
legal aid he was prevented from taking civil or criminal proceedings
in a domestic court.  Consequently, the applicants are of the opinion
that the requirement of having exhausted domestic remedies under
Article 26 (art. 26) of the Convention has been fulfilled.

Article 3 (art. 3)

The applicants submit that the punishment administered to the second
applicant did amount to degrading treatment within the meaning of
Article 3 (art. 3), because there was an undoubted element of
humiliation that was sufficient to exceed the level required, by
reference to the Irish State case and the Tyrer case.  The Government
refer to the seriousness of the act which gives rise to the punishment
administered, the degree of censure which that act requries, and the
degree of humiliation and disgrace which flows therefrom.  The
applicants point out that there is a dispute on the facts of the case,
and it is emphasised that in any event the act of throwing one conker
was insufficiently serious to require censure in the form of corporal
punishment.  As has been previously stated this fact enhances the
degree of humiliation and disgrace in this particular case.

The Government refer to "serious acts of misconduct", on the
assumption that the second applicant was guilty of more than one
incident of conker throwing, which is incorrect.  The Government refer
only to the "risk" of physical injury to another person, which appears
to be an acceptance of the fact that as claimed by the second
applicant no injury was caused by him to any third party.  The
Government's argument that any humiliation and disgrace suffered by
the second applicant would have arisen as a natural consequence of
being punished for misbehaviour is incorrect.  There were many other
more appropriate forms of censure available to punish the second
applicant for the admitted act of throwing one conker without injury.
After having been a pupil of the school for only ten days a form of
reprimand or detention, or suspension of some form of privilege would
have been appropriate, and would not have involved the inappropriate
humiliation and disgrace which resulted from the second applicant's
caning.  Further, the Commission's attention is drawn to para. 43 of
the judgment of the Court in the Tyrer case, and in particular:-

"The fact that one penalty may be preferable to, or have less adverse
effects or be less serious than another penalty does not of itself
mean that the first penalty is not "degrading" within the meaning of
Art. 3 (art. 3)."

With regard to the degree of humiliation itself in this case, the
applicants refer to the Court's judgment in the Ireland State case,
where it stated in para. 167 that treatment was degrading if it arose
in he victim "fear, anguish and inferiority capable of humiliating and
debasing".  The whole atmosphere of the inquisitorial interview held
prior to the caning was sufficient to produce anguish and fear,
particularly when the second applicant was threatened with "the cane
or the police".  There was a sufficient lapse of time between he
termination of the interview and the commencement of the caning to
increase the second applicant's anxiety and fear, which was increased
even further because he was required to wait in the corridor where he
could hear the caning of the first boy to be punished in the
headmaster's office.  The second applicant was humiliated in the eyes
of the other three boys who were caned, and in the eyes of the persons
who walked past the office whilst the second applicant was waiting
outside in the corridor prior to his caning being carried out.  After
the caning he was humiliated in the eyes of his classmates and friends
all of whom knew that he had been caned.  He was particularly
humiliated in the eyes of his friend who had actually travelled home
with him on the later bus on Wednesday, 12 September, and who was
therefore a witness to his alibi regarding the alleged conker
throwing.  Because the second applicant was under the impression that
he had in fact been caned for the alleged incident on the Wednesday,
and because this friend knew that the second applicant could not
possibly have been guilty of that offence, the humiliation of the
second applicant in the eyes of that friend was increased.

Although the caning in the second applicant's case was not
administered in a judicial set of circumstances as in the Tyrer case,
this does not detract from the degree of degradation and humiliation.
Attention is drawn to para. 33 of the judgment of the Court in that
case:-

"The very nature of judicial corporal punishment is that it involves
one human being inflicting physical violence on another human being
 ...  Thus, although the second applicant did not suffer any severe or
long lasting physical effects, his punishment whereby he was treated
as an object in the power of the authorities constituted an assault on
precisely that which it is one of the main purposes of Art. 3 (art. 3)
to protect, namely a persons dignity and physical integrity. Neither
can it be excluded that the punishment may have had adverse
psychological effects."

Institutionalised punishment is possible in circumstances other than
those which existed in the Tyrer case.  In fact in the present case
the second applicant's caning was accompanied by many features of
institutionalised punishment.  The caning was administered by a
teacher who was a total stranger to the second applicant, in the
presence of another total stranger.  There was a delay between the
commission of the admitted offence on the Tuesday and the caning on
the Thursday.  There was also a delay between the conclusion of the
interview in the teacher's office prior to break, and the caning
carried out after break.  The caning was administered in an atmosphere
of "official procedure", since a witness was present, and an entry was
made in the punishment book.  Even if it is argued that the teacher
concerned was not a total stranger because he was a member of the
staff of the school which the second applicant had attended for nearly
ten days, a distinction must be drawn between the relationship which
existed between this teacher and the second applicant (teacher and
pupil who were strangers to one another) and the contrasting
relationship which existed between the second applicant's parents and
himself.  The Government cannot claim that the teacher's alleged
status "in loco parentis" was sufficient to overcome the fact that as
far as the second applicant was concerned he was a total stranger. The
fact that the second applicant was not caned on his bare backside is
not conclusive.  In para. 5 of its judgment in the Tyrer case the
Court says:-

"The indignity of having the punishment administered over the bare
posterior aggravated to some extent the degrading character of the
applicant's punishment but it was not the only or determining factor."

As was emphasised by the Court in the Tyrer case judgment para. 31:-

"It is never permissible to have recourse to punishments which are
contrary to Art. 3 (art. 3), whatever their deterrent effect may be
 ... in the case now before it the Court cannot but be influenced by
the developments and commonly accepted standards in the penal policy
of the member States of the Council of Europe in this field."

The applicants emphasise that corporal punishment in schools has been
abolished by all the member States of the Council of Europe except the
United Kingdom.

So far the applicants have made no specific reference to the
instrument that was used to cane the second applicant.  Any such
comment is not possible until the cane, or a similar one, is actually
seen.  It should not therefore be assumed that the first applicant
necessarily accepts that the instrument used on his son was an
"appropriate" instrument.  Indeed, the applicants' case is that the
use of the cane which is designed to cause wheals and bruises as
occurred in this case cannot be other than an inappropriate
instrument.

Article 8 (art. 8)

The applicants submit that the issues raised under Article 8 (art. 8)
by the present application go beyond the right to respect for family
life and include the right to respect for home.  The applicants refer
to the case-law developed by the Commission and Court and submit that
the very existence of corporal punishment, the circumstances
surrounding its administration and its after-effects punishment do
entail grave disturbances in private or family life which are capable
of permeating directly into the home.

The applicants submit that as a result of the administration of
corporal punishment, a series of abnormal events took place in the
life of the second applicant, including a visit to the police station,
examination by a doctor, visits to a solicitor's office, media
coverage of the dispute and an element of notoriety amongst his, and
his parents', peer groups.  The applicants have further referred to
the time off school, the awareness of a conflict between his father
and the principal of the school, and the fact that the second
applicant has gone through the majority of his secondary school life
with a pending case before the Commission against the United Kingdom
in respect of the issue of corporal punishment.

It is submitted that the facts of the case reveal an arbitrary
interference, which cannot be justified under the terms of the second
paragaraph of Article 8 (art. 8).

THE LAW

1.      The applicants have alleged that the corporal punishment of
the second applicant amounted to a violation of Article 3 (art. 3)
of the Convention, which reads:

"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."

The Government have submitted that the applicants have not exhausted
domestic remedies as required by Article 26 (art. 26) of the Convention.

The Commission is of the opinion that it does not need to decide
whether the applicants can be said to have exhausted domestic
remedies, since Article 26 (art. 26) of the Convention also provides
that the Commission "may only deal with the matter ... within a period
of six months from the date on which the final decision was taken".
According to the Commission's case-law, where no domestic remedy is
available, the six months' period runs from the act alleged to
constitute a violation of the Convention, unless there is a continuing
situation, in which case the six months' period runs from the end of
that situation (c.f. No. 6852/74, Dec. 5.12.75, DR 15, p. 5).

The Commission considers that the actual caning of the second
applicant cannot be said to constitute a continuing situation.
Consequently the date to be taken into account is 13 September 1979,
whereas the application was introduced on 28 August 1980, that is more
than six months after the date of the act complained of.

It follows that this part of the application has been introduced out
of time and must be rejected under Article 27 para. 3 (art. 27-3)
of the Convention.

2.      The applicants have further complained that the caning of the
second applicant constituted interference with their right to respect
for their private and family life, and their home, contrary to
Article 8 (art. 8) of the Convention, which provides:

"1.  Everyone has the right to respect for his private and family
life, his home and his correspondence."

2.   There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health of
morals, or for the protection of the rights and freedoms of others."

The Government have submitted that the use of corporal punishment did
not constitute an interference with the respect for either the private
or the family lives of the applicants.

The Commission is of the opinion that the applicants' complaints under
Article 8 (art. 8) of the Convention do not concern a continuing
situation. Consequently, this part of the application must also be
considered as having been introduced out of time and must be rejected
under Article 27 para. 3 (art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)