Violence Against Children
The Debate on Corporal Punishment before the European Commission
and European Court of Human Rights (1978-1998)1
Children are probably the only category of human beings for whom it is not always clear that they should not be beaten. In some countries the national legislation or jurisdiction even explicitly permits the use of corporal punishment against children. Yet, children as well as other human beings are entitled to physical integrity. But is the permission to use corporal punishment against children in conformity with the European Convention on Human Rights (ECHR)? In the case law on corporal punishment of the European Court and the European Commission of Human Rights, which is discussed here, special attention is paid to the following questions: Is corporal punishment in breach of the ban on inhuman or degrading treatment or punishment (Article 3) and of the right to respect for the private and family lives and the personal integrity (Article 8) of children? Furthermore, is the administration of corporal punishment as a disciplinary measure in schools, a violation of the right to education (Article 2 of the First Protocol)?
All cases but one relate to the United Kingdom. We will discuss the position taken by the Court and the Commission, insofar as corporal punishment is administered by a judicial authority, as a disciplinary measure in school, or within the family.
In one case the Court judged whether corporal punishments imposed by a court, are in conformity with the ECHR, more specifically in the case Tyrer versus the United Kingdom3. The reason for the case was the conviction by the juvenile court of the Isle of Man of a 15-year-old boy to three strokes with the birch as a punishment for beating another child in school. The young boy claimed before the Court that this judicial punishment constitutes a breach of Article 3 of the ECHR, which provides that no one shall be subjected to inhuman or degrading treatment or punishment.
The Court holds the principle that, in order for a punishment to be "degrading" and in breach of Article 3, the humiliation must attain a particular level of severity. The assessment of this level of severity is relative: it depends on all the circumstances of the case and, in particular, on the nature and the context of the punishment itself and the manner and method of its execution4. The very nature of the judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. This is institutionalised violence, that is violence permitted by the law, ordered by the judicial authorities and carried out by the police authorities. Thus, the corporal punishment inflicted on the 15-year-old boy - 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 Article 3 to protect, namely a person's dignity and physical integrity5.
The striking thing is that although the Court has made it perfectly clear that it condemns judicial corporal punishment, the domestic law of the Isle of Man, which permits such punishment, was not rescinded. Apparently, the islanders accepted the judgement of the Court only with much restraint6.
It is beyond doubt that the State is responsible for the manner in which discipline is administered in State schools. However, the State bears the same responsibility towards private schools. After all, discipline is an integral, even indispensable, part of any educational system7. Under Article 2 of the First Protocol of the ECHR, the State has the obligation to secure to children their right to education. The fundamental right of everyone to education is a right guaranteed equally to pupils in State and in independent schools. The State cannot absolve itself from its responsibility by delegating its obligations to private organisations or individuals8. That a school's disciplinary system falls within the ambit of the right to education was also recognised by Article 28 of the UN Convention on the Rights of the Child9.
Thus, the State bears the responsibility to secure that all pupils, in private as well as in State schools, are not subjected to treatments that are contrary to the ban on degrading treatment or punishment (Article 3 ECHR), to the right to respect for the private life (Article 8) and to the right to education (Article 2 First Protocol ECHR, first sentence). Furthermore, the State bears the responsibility to ensure that the school's disciplinary system is in conformity with the philosophical convictions of the parents (Article 2 First Protocol ECHR, second sentence).
For each case the Commission and the Court examine in concreto whether a particular corporal punishment administered by a school and which is subject to complaint is in breach with one or more provisions of the ECHR.
Article 3 ECHR
Article 3 is not violated by the mere existence of the risk that a school might administer corporal punishment, for example when the school regulations permit the use of corporal punishment as a disciplinary measure. The pupils must at least prove, for example by means of medical certificates or otherwise that they have suffered adverse psychological or other effects10. Moreover, in order for a particular corporal punishment to be "degrading", it must attain a particular level of severity, which will be assessed on the basis of all the circumstances of the case. In itself, moderate corporal punishments are not in breach of Article 3 of the ECHR:
However, the Commission, to date, has not found that moderate corporal punishment in schools constitutes, as a general principle, institutionalised violence of the kind observed in the Tyrer case which would be in breach of Article 3 of the Convention. The Commission, like the Court, has always assessed claims of the present kind on the basis of the particular circumstances of the individual case.11
In the following cases the Commission judged that a corporal punishment inflicted on a pupil by a school as a disciplinary punishment, attained a minimum level of severity and accordingly was in breach of Article 3 ECHR:
On the other hand, the Court judged that the corporal punishment that was administered in the following situation did not attain a sufficiently high level of severity to be considered as a degrading punishment within the meaning of Article 3 ECHR:
Article 8 ECHR
The Court also examined the question whether corporal punishment in school is contrary to the right to respect for private life and the physical integrity of a pupil (Article 8 ECHR).
The Court does not exclude the possibility that there might be circumstances in which Article 8 affords in relation to disciplinary measures in schools a protection which goes beyond that given by Article 3. The corporal punishment complained of by the plaintiff (a boy of 7 was beaten with a shoe) did however not entail sufficient adverse effects for the physical or moral integrity of the plaintiff to consider it a violation of his right to respect for his private life.15
Article 2, First Protocol ECHR
Besides the question whether the administration of corporal punishment in schools constitutes a breach of the fundamental rights of pupils, it was also questioned whether corporal punishment is in conformity with the right of parents, enshrined in Article 2, second sentence of the First Protocol of the ECHR. In the Campbell and Cosans case as well as in the Warwick case it is found that the opinions of the parents opposed to the use of corporal punishment amount to the notion "philosophical convictions". The mere existence of the risk that their children might be subjected to corporal punishment and the refusal of the school to guarantee the parents that their children will not be subjected to corporal punishment, already constitute - even without actual administration of a corporal punishment - a breach of the right of parents to secure (for their children) an education and teaching that are in conformity with their own philosophical convictions.16
Consequently, the suspension of a pupil, because he and his parents by reason of their philosophical convictions refused to accept that he receives or is liable to corporal punishment, also constitutes a violation of the right to education of the pupil himself. The regulation by the State of the right to education, which sets conditions for access to an educational establishment, must not conflict with other rights enshrined in the Convention or in the Protocols.17
It should be noted that during the treatment of the Warwick case by the Committee of Ministers, the British government announced that her legislation on the use of corporal punishment in schools had been amended. Since 15 August 1987, when sections 47 and 48 of the Education Act of 1986 came into force, the use of corporal punishment has been abolished in British State schools.18 However, under the British legislation private schools without State subsidy remain free to use "moderate" corporal punishment as a disciplinary measure.19
Legal ban on corporal punishment
On 1 January 1979 a new legislation was adopted in Sweden, which prohibits corporal punishment of all kinds against children, also by parents or persons that exert parental authority. A number of parents, seven in total, complained to the European Commission that this legislation constitutes a breach of the right to respect for their private and family lives. The applicants are members of a free protestant church and as such they believe in a "traditional" manner of bringing up their children and in the necessity of corporal punishments, which they justify by reference to Biblical texts.
The Commission argues that the existence of a legislation which prohibits all corporal punishment of children, but which does not provide sanctions and is mainly intended to be preventive, cannot be regarded as constituting a breach of the parents' right to respect for their private and family lives (Article 8 ECHR).20 Neither is the fact that a parent inflicting corporal punishment on his child can be prosecuted for beating according to the same criteria that are used for prosecuting a stranger to the family, a violation of Article 8 ECHR, since in both cases the consequences for the victim are the same. The scope of the Swedish penal law on beating and assault and battery is a normal measure to control violence and the extension of its application to normal corporal punishment by parents against their children is intended to protect possible weak and vulnerable members of society.21
State responsibility for corporal punishment within the family
In 1998 the European Court for the first time passed judgement on a case in which a child was beaten in his family. Also this case was directed against the United Kingdom. The stepfather of a 9-year-old boy was prosecuted before the national court for hitting his stepson with considerable force on several occasions with a cane. The court found the stepfather not guilty of assault and battery. This verdict was based on a provision in the British law, which protects parents or persons that exert parental authority against such prosecutions, if there is proof that the punishment inflicted on the child does not go beyond a "reasonable" chastisement.
In its verdict the Court recalls the position which it has maintained since the Tyrer judgement, that in order for a punishment to be "degrading" and in breach of Article 3 of the ECHR, the humiliation involved must attain a particular level of severity. The assessment of this level of severity is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.22 The Court concludes that when a child of nine years old is beaten with a cane by his stepfather on more than one occasion, and when the bruises of this ill-treatment are assessed by a paediatrician, this treatment reaches the level of severity prohibited by Article 3 ECHR. Since the Court found a violation of Article 3, it is not necessary to examine whether the corporal punishment also breached the right to respect for the private life of the victim.23
The Court further holds that the responsibility of the State is at issue, since the State has the obligation to take measures to ensure that individuals within its jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatments administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. In the present case, as in the Costello-Roberts case,24 the Court refers to the UN Convention on the Rights of the Child, more specifically to the Articles 19 (protection from abuse and neglect) and 37 (prohibition of torture and cruel, inhuman or degrading treatment or punishment).25 The British law, which permits "reasonable chastisement" by parents or persons that exert parental authority, does not provide adequate protection against treatment or punishment contrary to Article 3 ECHR.26
The present state of affairs of the jurisdiction of the European Commission and the European Court of Human Rights as regards corporal punishment of children can be summarised as follows:
The Committee for the Rights of the Child that monitors the implementation of the UN Convention on the Rights of the Child, also refers to Article 19 of the CRC to argue that corporal punishment of children, within the family as well as in institutions, and judicial corporal punishment are not in conformity with this Convention. On several occasions the Committee suggested in her final conclusions to the States to enact a law which prohibits corporal punishment and to organise sensitisation campaigns to ban the use of corporal punishment.28
Chronological list of case law
The full text of the case law can be found on the home page of the European Court of Human Rights. Address: http://www.echr.coe.int
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