APPLi[CATION/REQUÊTE N° 9303/81 B. and D . v/the IJNITED KINCVDOM B. et D. c/ROYAUME-UnI DECISION of 13 October 1986 on the admissibility of the application DÉCISION du 13 octobre 1986 sur la recevabilité de la requête Artiele 26 of the Convention : Where no domestic remedy is available the aix month period runs front the act a,'leged to eonstiu<te a violation of the Convention . W7eere it concerns a continuing situation, it runs from the end of the situation : Article 2' of the First 13otocol : Conflict between a practice of using corporal punisüment as a method o,f school discipline, and ohilosophical convictions o,f the parents. ~Questicn whether these attain the level of cogency, serioùsness, cohesion and importance required by this provision and whether [hey have been duly brought to the attention gf the authorities (Complaints declared adtnisfible). Article 26 de la Convention : L?rsqu'il n'existe aucun recours en droit internrne, le délai de s'se mois court à panir de l'acte dont il est allégué qu'il viole la Cojrvention . S'il s'agit d'une situation contirnAe, il court à partir de la fin le celle-ci . Articl e 2 du Protocole additionud : Cor flit entre l'usage de punitions corporelles, en tant que métüode de discipline scolaire, et les convictions philosophiques des parerns. Question de savoir si celles-ci atteignent le degré de fgrce, de sérieux, de cohérence et d'imponance requis par cette disposition et si elles ont été dRrnent signalées aux autorités (Griefs dÆclaré.c reeevables,~. 44 Considérant que, pendant l'examen de cette affaire, le Gouvernement du Royaume-Uni a informé le Comité des Ministres que des modifications avaient été apportées au Règlement intérieur des établissements pénitentiaires d'Angleterre et du Pays de Galles en décembre 1984, d'Ecosse en juillet 1985 et d'Irlande du Nord en juillet 1986 en vue de l'assouplissement de la réglementation régissant les conditions dans lesquelles les détenus pouvaient se procurer le matériel pour écrire et expédier leurs aeuvres scientifiques et artistiques en dehors de la prison, que les détenus pouvaient prendre connaissance de ces dispositions qui étaient incorporées au Règlement intérieur, dont un exemplaire était affiché dans chaque quanier des établissements pénitentiaires ; Prenant note avec satisfaction des modifications apportées au Règlement intérieur des établissements pénitentiaires ; Procédant au vote conformément aux dispositions de l'article 32 paragraphe I de la Convention , a. Décide que dans cette affâire i. il y a eu violation de l'article IO de la Convention eu égard au refus de procurer du papier à écrire au requérant et à l'interdiction totale imposée à celui-ci d'envoyer ses écrits scientifiques en dehors de la prison ; ii. il n'y a pas eu violation de l'article 10 de la Convention eu égard aux restrictions apportées au droit du requérant de recevoir des livres ; iii. il y a eu violation de l'article 10 de la Convention eu égard aux restrictions apportées au droit du requérant de se procurer des journaux et périodiques et en particulier la restriction pendant l'exécution des sanctions disciplinaires ; iv. il n'y a pas eu violation de l'article 10 de la Convention eu égard à l'examen des écrits du requérant ; b. Décide qu'il n'y a pas lieu de prendre d'autres mesures dans la présente affaire. 43 FHE FACTS (Ji'an(¢is : vnCr p. 51) 'rhe facts of the case as subntitted by the parties ma) be suntmarised as follows. The first applicant, born in 1928, ir, the mother of the second applicunt, who was born in 1966 as youngest of ceven children . When lodging the application, ihey were resident at " ., Herefcrrdshire. In the proceedings before the Commis;ion, the applicants are represented by Messrs . Ouvry, Goodman dc Co., solicitors at Sutton, Surrey . On 3 Deceriber 1979, the second applicant, then a pupil at A . Lower School, received three strokes of a cane on the buttocks from the deputy head teacher, in the presence of another teacher, for 5ghting and bullying .Thefirstap,?licantwasinformedaboutthecaninganditssarroundingcimnmstances the. same day . In the local press of 6 December 1979 the first applicant stated that she was "disgusted at rhe fact that [fie second applicant] was caned untd his bottom was bruised without the school warning me first" . She had been aware that detentions were given as punishme=nt at the school bu : understood that parents would be infornrcd if caning was fe7t necessary . She had "never taken a stick to any of my children, so I am not going to let the school start now" She would try to see the deputy head teaclter and there would be "trouble" . The first applicant reported Ihe incident to the Hereford police and refused to let her son return to-the school . < On 7 Decentber 1979, the head teacher wrote to the first applican t "As you know from the handbook which has been supplied to all parents, every pupil has a right to appeal if he thinks he is being unjustly :reated . Mcreover, it is clearly stated in the handbook that my senior staff are preparecl to see psaents at very short notice ir a matter is really urgent . You are, of course. at liberty to ignore these avenues of approach and [o publicise the incideni as y'ou have done . You are still at liberty to corne to discuss the niatter with ine but,in view of ycur statement in the Evenin,e News, which leads rne to think that ybu might provoke a br:ach of the peace, you nmst not visit the Lower School except by invitation and neither nrust a:iyone acting on your behalf. I am stire you will agree that it is in the interests of all concerned fer you to deal with meand no one else . I notice that you are never going to send your son to A . School again . I must, therefore, advise you that, contrary to your impression, the consequeçce will not necessari ly be :`They can take me to court over tlrat if they like' . Yciu have certain rights according to tF.e 1944 Education Act concerning the choice of scbools and I think you are very wise to exerise them, I?articularly,as the 45 School's policy will not be changed . My duty is to safeguard the welfare of all the 1,200 pupils in the school and if your son were to return to this school and to misbehave as he has done recently he would be punished in the same way as before." On 15 February 1980, the Hereford police, apparently replying to a letter from the first applicant of 14 February in connection with the incident concerning her son, stated that they were unable to assist her further. On 4 March 1980, the County Education Welfare Office addressed to the first applicant a notice under Section 37 of the Education Act 1944 . He stated that it appeared that, as parent of the second applicant, a child of compulsory school age, the first applicant was failing to perform her duty, under Section 36 of the Act, to cause the applicant to "receive efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise" . She was invited to satisfy the Education Authority that she was complying with this obligation . By a further notice of 19 March 1980 the Education Officer infotmed the first applicant of the Authority's intention to serve upon her a School Attendance Order under Section 37 (2) of the Act . He stated that she had the right to select the school which she wanted the second applicant to attend and that the Authority considered A. School suitable for the child . On 14 April 1980, the Authority made an Order under Section 37 (2) requiring the first applicant to cause her son to become a registered pupil at A . School. The Order was served on the following day . On 30 April 1980, Mr . J. Hawes of Messrs . Humfrys & Symonds, solicitors at Hereford, informed Mr. Tom Scott of STOPP (Society of Teachers Opposed to Physical Punishment) that the pursuit of the applicants' case in the courts would involve considerable expense and that he could not recommend that any further action be taken . Early in July 1980, the first applicant was fined £ 25 by the Magistrates' Court of Hereford City for failing to register her son at A . School . According to a press report, she told the Court that her son "was not fit to return" to that school ; she had tried to get him into two other schools but they were full . The Court heard that the headmaster had crossed the second applicant's name off the school register following publicity about the caning incident and after having been informed that the second applicant wanted to return to the school but that his mother refused to allow this. The representative of the Education Authority stated that the Authority had no policy on corporal punishmetit and left it to individual schools ; the caning had received the support of the school governors . On 31 July 1980, the local committee of the Law Society refused the second applicant's petition for legal aid to take proceedings against the deputy head teache r 46 and the Hereforcl and Worr_ester County Council for damages for the caning . By letter of 3 September 1980 the Birmingharn Legal Aid Area Headquarters of the Law Socieby informed the first applicant that her appeal against the refusal had been dismis,.ed . It appears tttat the second applicant did not attc.nd z.ny school from December 1979 until May 1982, and that he received home tuition during the six weeks from March 1982 until he reached sehool-leaving age in May 1982 . COMPLAINTS 1 . The applicants complain that the caning of the second applicant constituted degradng treatment, contrary to 9rticle 3 of the Convention . With reference to the judgment given by the European Court of Human Rights on 25 February 1982 in the case of Camphell and Cosans, the applicants submit that the first applieant's rights uuder the second sentence of Article 2 of Protoced No . I to the Corivention were violated by the existence of corporal punishmem: in the school attended by her son, and especially by the caiiing inflicted-on him on 5 December 1979 . The Court's holding, at paragraphs 3.3 et seq. of the judgment, coneerning the functions assumed by the State in Scotland applied also to the funetions assumed by the State in England. Like the applicants in the Canipbell andCosans case, the firea applicant's views "relate to a weighty and substantial aspect of human life and behaviour, nantely ibe integrit,/ of the person, the propriety or otherwise of the nfliclion of corporal pttnishment and the er.clusion of the distress which the risk of such punishment entails" (paragraph 36 of the judgment) . Therefore ., the first a?plicant's objections to the tise of corporal punistiment (a practice. which she abhors and regar(Is as barbaric) are "philosophieal convictions" within the meaning of Article 2 . With reference to paragraph 37 of the judgment, the applicants observe that, in England, the Government have not adopted "a policy of gradually eliminating corporal chastisement" . The first applicant suffered even greater violations of the second sentence of Article 2 than Mrs . Catnpbell and Mrs . Cosans, in that : her son was actually subjected to corporal punishment ; and - she herself was subjected to a humiliating court appearance, resulting in a fine of £ 25 and embarrassing, press publicity for failing to register her son at thesehool wtiere he had been caned . 'I'o attempt to force her to return her son to :he school, where he had been subjected to corporal punisoment, and to fine her for not doing so (thereby rreating her as a ocmmon criminal) consiclerably aggravated the breach of Article 2. 47 The applicants further submit that, because no alternative school was found for the second applicant from December 1979 (when he was caned) until May 1982 (when he reached school-leaving age) he was denied his right to education contrary to the first sentence of Article 2, for a period of well over two years . (The only education provided by the local education authority during this long period was home tuition from March to May 1982) . In the case of Jeffrey Cosans, the Court ruled that his suspension from school "was motivated by his and his parents' refusal to accept that he receive or be liable to corporal chastisement (. . .) . His return to school could have been secured only if his parents had acted contrary to their convictions, convictions which the United Kingdom is obliged to respect under the second sentence of Article 2( . . .) . A condition of access to an education establishment that conflicts in this way with another right enshrined in Protocol No . I cannot be described as reasonable and in any event falls outside the State's power of regulation under Article 2 . " Similarly, the second applicant could only have returned to A . School - the only one offered as a possibility and the school where he had been caned - "if his parents had acted contrary to their convictions, convictions which the United Kingdom is obliged to respect under the second sentence of Article 2" . For in the letter to the first applicant dated 7 December 1979, the headmaster had made it clear that if her son returned to A . School he would stül be liable to be beaten. The applicants submit that, consequently, the second applicant was a victim of a violation of the first sentence of Article 2 . . . ... ... ... ... . THE LAW 1 . The applicants have alleged that the corporal punishment of the second applicant amounted to a violation of Article 3 of the Convention, which reads : "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The applicants have contended that no domestic remedy was available with regard to their claims under the above provision . This was contested by the Government. 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 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 constant case-law, where no domestic remedy i s 48 available, the six month period runs from the act alleged to com.titute a violation of the Convention, unless.there is a continuing situation, in which case the sixmonth period runs from the end of that situation (cf. No. 6852/74, Dec. 5 .12.78, D .R- 15 p. 5) . The Commission considers that the actual caning of ihe seccnd applieant carmot be said to constitute a continuing situation. Consequently, the date to be taken into account is 5 December 19 79, whereas the appli,ation was introduced on 2 March 1981, that is more than six months after thedatc of the act cornplained of . It follows that this part of the application has been introduced out of time and must be rejected under Article 2) para . 3 of the Convention . 2 . The first applicant has further conrplained that che use of corporal punishment in the present case was contrary to her right to have iier son eduvated in confornrity with her pttilosopliical convietions . She has also complained that it was attempted to force her to return her son to the school where he had been su3jeeted to corporal punishment, and that she was fined for not doing so . She has invoked the second sentence of Article 2 of Protocol No . I tu the Comention, which provides that : "7n the exercise of any functons which it assumes in relation to education and to teaching, he State shall respect the right of parents to ensure such education and teaching in conformity with theii- own religious and philosophical convictions . ° In addition, the second applicant has complained about his being crossed off the school register and about the failure by the education authoriries to provide him with an alternative school . He has invoked thefirst sentence of Article 2 of F'rotor_ol No. I to the Convention, whichprovides :"Nopersonshallbedeniedtherighttoeducation . " Ttte Commission finds that tt.e violations of Article 2 of Protocol No . I to the Conventior complained of relate to a continuing situation which only ended on 16 May 1982 . Moreover, the Government Pnave not claimed that the applicants failed to exhanst domestic remedies in ttiis respect . Consecuently, the Commission ffnds that the applicants have complied with the requirements of Article 26 of the Convention with rega:rd to their complaints under Article 2 of Protocol No . 1 to the Convention . The Government, relying on the Campbell and Cosans judgment, have submitted tlhat it is open to questioi whether the first applicant's views on corporal punishment did attain the level of eogency, seriousness, cohesion and importance requirecl by Articla 2, second sentence. Referring to the Commission's decision in case No. 8566/79, Dec . 13 .10 .82, D .R . 31 p . 50, the Government further submitted that, in the preseni, case, the first applicant's alleged opposition h> corporal punishment was not duly brought to theattention of the school authorities . The Government also pointed out that another child of the first appGcant continued as a pupil at the school concerned antil June 1980 . 49 The Commission has made a preliminary examination of the question whether the first applicant's views on corporal punishment attained the level required by Article 2, second sentence, of Protocol No . I to the Convention, as interpreted by the Court in the case of Campbell and Cosans (Eur . Court H.R., judgment of 25 February 1982, Series A no . 48, para. 36). The Commission finds that, in the circumstances of the present case, this question raises complicated issues of law and fact which can only be determined by an examination of the merits of the case . It follows that the first applicant's eotnplaints under the second sentence of Article 2 of Protocol No. I cannot be declared manifestly ill-founded on the ground that her views on corporal punishinent did not rnect the requirements of this provision . The Commission has subsequently examined whether these complaints must be declared inadmissible, as being manifestly ill-founded, on the other ground invoked by the Government, viz . because the first applicant's views on corporal punishment were not duly brought to the attention of the school authorities . Thc Commission notes that it is in dispute whether the first applicant had informed the school authorities of her objection to the infliction of corporal punishment on her son . However, the Commission also notes that, after the incident at issue, the first applicant clearly demonstrated her objections to the corporal punishment of her son and refused to withdraw these objections even when criminal proceedings were instituted against her for not returning her son to school . The Commission further observes that the education authorities did not provide an alternative school for the second applicant . The Commission therefore concludes that, in the present case, the applicants' coinplaints under Article 2 of Protocol No . 1 raise difficult questions of law and fact which can only be determined by an examination of the merits of the case and cannot be declared manifestly ill-founded on the grounds invoked by the Govermnent . No other grounds for inadmissibility having been established, these cotnplaints must therefore be declared admissible. 3. The applicants, furthermore, have complained that the caning of the second applicant constituted an interference with their right to respect for their private and family life, contrary to Article 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 is 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 or morals, or for the protection of the rights and freedoms of others ." 50 The Govermnent have submitted that the use of corporal puuishment did not conslitute an interference with either the respective private lives or the family life of the applicants . The Commission is of the opinion that the applicants' conplaints under Article 8 of the Cor•vention do not concern a continuing situation . Consequently, this part of the application must also be considered as having been inlroduced out of lime and inust be rejected under Article 27 para . 3 of ttte Convention . For these reasons, the Commissio n DECLARES INADMISSIBLE the applicants' complaints that the caning of the second applicant constituted degrading treatment contrary to Article 3 of the C'onvenlion and interfered with the applicants' righ, to respect foi private and family life nnder Article 8 of the Conventio n DECLARES ADMISS'IBLE the remainder of the application without in any way prejudging the merits .