Judicial corporal punishment
Until the twentieth century, corporal punishment was a fact for many people. Fortunately, physical chastisement has all but disappeared in large parts of the world although many countries still adhere to the practice.
The European Court has elaborated on non-judicial corporal punishment in Tyrer v. The United Kingdom .
Tyrer v. The United Kingdom
European Court of Human Rights
Application No. 5856/72
Judgement of 25 April 1978
Keywords: corporal punishment - inhuman and degrading punishment - territorial application - non-discrimination - just satisfaction
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AS TO THE FACTS
A. The applicant’s punishment
9. Mr. Anthony M. Tyrer, a citizen of the United Kingdom born on 21 September 1956, is resident in Castletown, Isle of Man. On 7 March 1972, being then aged 15 and of previous good character, he pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. The assault, committed by the applicant in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned. The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation (see paragraph 11 below).
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10. After waiting in a police station for a considerable time for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of the same day. His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicant’s father lost his self-control and after the third stroke “went for” one of the policemen and had to be restrained.
The birching raised, but did not cut, the applicant’s skin and he was sore for about a week and a half afterwards.
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II. ON ARTICLE 3 (art. 3)
28. The applicant claimed before the Commission that the facts of his case constituted a breach of Article 3 (art. 3) of the Convention [?].
He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof.
In its report, the Commission expressed the opinion that judicial corporal punishment, being degrading, constituted a breach of Article 3 (art. 3) and that, consequently, its infliction on the applicant was in violation of that provision.
29. The Court shares the Commission’s view that Mr. Tyrer’s punishment did not amount to “torture” within the meaning of Article 3 (art. 3). The Court does not consider that the facts of this particular case reveal that the applicant underwent suffering of the level inherent in this notion as it was interpreted and applied by the Court in its judgment of 18 January 1978 ( Ireland v. the United Kingdom , Series A no. 25, pp. 66-67 and 68, paras. 167 and 174).
That judgment also contains various indications concerning the notions of “inhuman treatment” and “degrading treatment” but it deliberately left aside the notions of “inhuman punishment” and “degrading punishment” which alone are relevant in the present case (ibid., p. 65, para. 164). Those indications accordingly cannot, as such, serve here. Nevertheless, it remains true that the suffering occasioned must attain a particular level before a punishment can be classified as “inhuman” within the meaning of Article 3 (art. 3). Here again, the Court does not consider on the facts of the case that that level was attained and it therefore concurs with the Commission that the penalty imposed on Mr. Tyrer was not “inhuman punishment” within the meaning of Article 3 (art. 3). Accordingly, the only question for decision is whether he was subjected to a “degrading punishment” contrary to that Article (art. 3).
30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. However, what is relevant for the purposes of Article 3 (art. 3) is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him. In fact, in most if not all cases this may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demands of the penal system.
However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). 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 Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 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 a punishment to be “degrading” and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment 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.
31. The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of “degrading punishment” appearing in Article 3 (art. 3), the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves. As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3 (art. 3), whatever their deterrent effect may be.
The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. 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. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.
32. [?] Publicity may be a relevant factor in assessing whether a punishment is “degrading” within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others.
The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right of appeal against sentence, provides for certain safeguards. Thus, there is a prior medical examination; the number of strokes and dimensions of the birch are regulated in detail; a doctor is present and may order the punishment to be stopped; in the case of a child or young person, the parent may attend if he so desires; the birching is carried out by a police constable in the presence of a more senior colleague.
33. Nevertheless, the Court must consider whether the other circumstances of the applicant’s punishment were such as to make it “degrading” within the meaning of Article 3 (art. 3).
The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the 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 Article 3 (art. 3) to protect, namely a person’s dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects.
The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.
Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant’s conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him.
34. In the present case, the Court does not consider it relevant that the sentence of judicial corporal punishment was imposed on the applicant for an offence of violence. Neither does it consider it relevant that, for Mr. Tyrer, birching was an alternative to a period of detention: 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 Article 3 (art. 3).
35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of “degrading punishment” as explained at paragraph 30 above. 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.
The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention.
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Comment
Here the Court confirmed that punishment has to attain a certain level of severity in order to amount to ‘torture’ or ‘inhuman punishment’ and found that the birching had not resulted in suffering of that level. However, the Court found that the punishment constituted ‘degrading punishment’. The indignity of being flogged on the bare posterior was not the only or determining factor. The punishment was institutional violence carried out against the victim who was treated as an object in the power of the authorities and constituted an assault on his dignity and physical integrity in violation of Article 3.
Although the European Court has ruled against judicial corporal punishment, this form of punishment is still common practice in many countries and is, for instance, a salient part of Muslim Shari’a law. In a recent case, the African Commission dealt with corporal punishment as a violation of the right to human dignity.
Curtis Francis Doebbler v. Sudan
African Commission on Human and Peoples’ Rights
Communication No. 236/2000
Sixteenth Activity Report 2002-2003, Annex VII.
Keywords: corporal punishment - severity of punishment
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Summary of Facts:
1. The Complainant alleges that on 13th June 1999, the students of the Nubia Association at Ahlia University held a picnic in Buri, Khartoum along the banks of the river. Although under the law no permission is necessary for such a picnic, the students nevertheless sought permission and got it from the local authorities.
2. After starting off for some hours, security agents and policemen accosted the students, beating some of them and arresting others. They were alleged to have violated ‘public order’ contrary to Article 152 of the Criminal Law of 1991 because they were not properly dressed or acting in a manner considered being immoral.
3. The Complainant avers that the acts constituting these offences comprised of girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys and sitting and talking with boys.
4. The eight students arrested were Hanan Said Ahmed Osman, Sahar Ebrahim Khairy Ebrahim, Manal Mohammed Ahamed Osman, Omeima Hassan Osman, Rehab Hassan Abdelmajid, Huda Mohammed Bukhari, Noha Ali Khalifa and Nafissa Farah Awad.
5. On 14th June 1999, the eight students referred to in the above paragraph were convicted and sentenced to fines and or lashes. The said punishment was executed through the supervision of the court. This type of punishment is widespread in Sudan.
6. Complainant alleges that the punishment meted out was grossly disproportionate, as the acts for which the students were punished were minor offences, which ordinarily would not have attracted such punishments. The alleged punishments therefore constitute cruel, inhuman and degrading punishment.
7. No written record of the proceedings is publicly available.
8. The Complainant submits on the issue of exhaustion of local remedies that since the sentences have already been executed, domestic remedies would no longer be effective.
Complaint
9. The Complainant alleges violation of Article 5 of the Charter.
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Merits
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30. Complainant alleges that eight of the students of the Ahlia University were arrested and convicted by a public order court for acts that violated the ‘public order’. He states that they were all sentenced to fines and between 25 and 40 lashes, the lashes were carried out in public on the bare backs of the women using a wire and plastic whip that leaves permanent scares on the women.
31. He points out that the instrument used to inflict the lashes was not clean and no doctor was present to supervise the execution of punishment and that the punishment therefore, could have resulted in sever infections to the victims.
32. Complainant alleges that the punishment of lashings are disproportionate and humiliating because they require a girl to submit to baring her back in public and to the infliction of physical harm which is contrary to the high degree of respect accorded to females in Sudanese society.
33. The Respondent State argues that the court found the accused guilty and decided to have them flogged with either a fine of fifty thousand Sudanese pounds each, or one-month imprisonment.
34. The Respondent State informed the African Commission that the lashings were justified because the authors of the petition committed acts found to be criminal according to the laws in force in the country.
35. There is little or no dispute between the Complainant and the Government of Sudan concerning the facts recounted above. The only dispute that arises is to whether or not the lashings for the acts committed in this instance violate the prohibition of article 5 as being cruel, inhumane, or degrading punishment.
36. Article 5 of the Charter prohibits not only cruel but also inhuman and degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate or force the individual against his will or conscience.
37. While ultimately whether an act constitutes inhuman degrading treatment or punishment depends on the circumstances of the case. The African Commission has stated that the prohibition of torture, cruel, inhuman, or degrading treatment or punishment is to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses (See Communication 225/98 Huri-Laws / Nigeria)
38. The European Court of Human Rights in Tyler§v. United Kingdom, applying article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms , 213 U.N.T.S. 221, entered into force 3 February 1953, that is substantially similar prohibition of cruel, inhuman, and degrading punishment as article 5 of the Charter, has similarly held that even lashings that were carried out in private, with appropriate medical supervision, under strictly hygienic conditions, and only after the exhaustion of appeal rights violated the rights of the victim. The Court stated that: “the very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by law, ordered by the judicial authorities of the State and carried out by the police authorities of the State. Thus, although the applicant did not suffer any severe or long lasting physical effects, his punishment whereby he was treated as an object in the power of authorities— constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects”.
39. The Complainant alleges that the punishment meted out was grossly disproportionate, as the acts for which the students were punished were minor offences, which ordinarily would not have attracted such punishments.
40. The Complainant submits that according to Islamic law the penalty of lashings may be meted out for some serious crimes. For example, hadd offenses may be punished with lashes under Shari’a because they are considered grave offences8 and strict requirements of proof apply. Minor offenses, however, cannot be punished as hadd because the Qur’an does not expressly prohibit them with a prescribed penalty. The acts committed by the students were minor acts of friendship between boys and girls at a party.
41. The African Commission, however, wishes to assert that it was not invited to interpret Islamic Shari’a Law as obtains in the Criminal Code of State. No argument was presented before it nor did the African Commission consider arguments based on the Shari’a Law. The African Commission hereby states that the inquiry before it was confined to the application of the African Charter in the legal system of a State Party to the Charter.
42. There is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture under the Charter and contrary to the very nature of this human rights treaty.
43. The facts in this communication have not been disputed by the Respondent State. In their oral submissions at the 33rd Ordinary Session, the Respondent State confirmed this by stating that it was the opinion of the Respondent State that it was better for the victims to have been lashed rather than hold them in detention for the said criminal offences and as such deny them of the opportunity to continue with their normal lives.
44. The law under which the victims in this communication were punished has been applied to other individuals. This continues despite the government being aware of its clear incompatibility with international human rights law.
For these reasons, the African Commission, Finds the Republic of Sudan violation of Article 5 of the African Charter on Human and Peoples’ Rights and, Requests the Government of Sudan to -:
Immediately amend the Criminal Law of 1991, in conformity with its obligations under the African Charter and other relevant international human rights instruments;
Abolish the penalty of lashes; and
Take appropriate measures to ensure compensation of the victims.
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Comment
In this case the African Commission reiterated its view that ‘the prohibition of torture, cruel, inhuman, or degrading treatment or punishment is to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses’ and established that neither individuals not the state have a right to apply physical violence to individuals for offences. The Commission found that such a right would imply sanctioning state sponsored torture contrary to the very nature of the African Charter.
The Human Rights Committee has stated that ‘corporal punishment is prohibited by the covenant.’ In Osbourne v. Jamaica, corporal punishment was found to violate Article 7.
Osbourne v. Jamaica
Human Rights Committee
Communication No. 759/1997
Views of 15 March 2000
Keywords: cruel, inhuman treatment or punishment - degrading treatment or punishment - effective remedy
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Views under article 5, paragraph 4, of the Optional Protocol
1.The author of the communication is George Osbourne, a Jamaican national currently detained at the General Penitentiary, Kingston, Jamaica. He claims to be a victim of a violation by Jamaica of articles 7 and 10, paragraph 1, of the International Covenant of Civil and Political Rights. [?].
The facts as submitted by the author
2.1 In October 1994, the author was convicted by the Westmoreland Circuit court, Savannah-la-Mar, along with a co-accused for illegal possession of firearm, robbery with aggravation and wounding with intent. He is serving a sentence of 15 years’ imprisonment with hard labour and is subject to receive 10 strokes of the tamarind switch.
2.2 The author’s appeal against the conviction and the sentence was heard and dismissed on 25 September 1995. Counsel claims that there is no known record of proceedings before the Court of Appeal, and that no reasons for dismissal were given in writing.
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The complaint
3.1 The author submits that the use of the tamarind switch as a form of punishment is inherently cruel, inhuman and degrading and therefore in violation of article 7 of the Covenant Reference is made to the Zimbabwean decisions of S. V. Ncube and others, and S. V. A Juvenile, a decision from Barbados, Hobbs and Mitchell v. R. and a judgement of the European Court of Human Rights, Tyrer v. United Kingdom.
3.2 Counsel states that the basic provision for flogging and whipping in Jamaica is preserved by the Constitution of Jamaica 1962. The relevant statutory provisions governing flogging and whipping are the Flogging Regulation Act 1903, the (Prevention of) Crime Act, 1942 and the Approval and Directions under section 4 thereof, dated 26 January 1965. It is claimed that in the absence of regulations more extensive than those set out in the Approval and Directions, the actual procedure used appears to be largely at the discretion of the implementing prison authorities. In this context, counsel refers to the affidavit of E.P., formerly incarcerated in the General Penitentiary, Kingston, Jamaica.
3.3 In his affidavit, Mr. E.P. states that on 8 August 1994 after pleading guilty to wounding with intent, he was sentenced to four years hard labour and six strokes of the tamarind switch. He was scheduled for release on 1 March 1997 after being granted one-third remission of his sentence for good behaviour. The day before his release, a batch of more than 12 correctional officers came and took him from his cell to another section of the prison. When he realized that the sentence of flogging was about to be carried out, he protested, with the result that he was hit in the stomach by one of the officers. He was then seized, blindfolded and ordered to remove clothing from the lower part of his body. When this was done, he was forced to lean forward across a barrel and one of the warders placed his penis into a slot in the barrel. He was then strapped into that position and struck across the buttocks with an instrument that he was unable to see. E.P. states that an unnecessary number of prison warders (25) were present at the time of the whipping and that this added to his humiliation. He further states that the doctor was the only outsider present and that he was not examined by the doctor after the whipping.
3.4 It is further submitted that the specific features of the regulation of whipping in Jamaica as shown in the case of E.P., including delay between sentence and execution causing additional anguish, the humiliating number and identity of witnesses to the punishment, no provision for the attendance by witnesses on behalf of the prisoner and the humiliation of being strapped naked to a barrel, aggravate the humiliation inherent in the punishment.
3.5 Counsel states that corporal punishment has not been practised in Jamaica in 25 years up to 1994, and contends that if a rising incidence of serious crime in Jamaica is advanced as justification for the reintroduction of corporal punishment, the empirically established lack of deterrence destroys this justification. Counsel further notes that by regulation 9 of the Flogging Regulation Act 1903 “in no case shall a sentence of flogging be passed upon a female.” He contends that if deterrence of crime were the purpose of the provision, such an exception would not arise.
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9.1 The author has claimed that the use of the tamarind switch constitutes cruel, inhuman and degrading punishment, and that the imposition of the sentence violated his rights under article 7 of the Covenant. The State party has contested the claim by stating that the domestic legislation governing such corporal punishment is protected from unconstitutionality by section 26 of the Constitution of Jamaica. The Committee points out, however, that the constitutionality of the sentence is not sufficient to secure compliance also with the Covenant. The permissibility of the sentence under domestic law cannot be invoked as justification under the Covenant. Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant. The Committee finds that by imposing a sentence of whipping with the tamarind switch, the State party has violated the author’s rights under article 7.
9.2 With regard to the author’s claim that, on 13 December 1997, he was beaten severely by three warders of the General Penitentiary in Kingston, the Committee notes that the State party in its investigations of the allegations found that the warders had not exercised more force than that which was necessary to ascertain whether the author was in possession of a knife. Furthermore, the State party has provided the Committee with copies of medical reports which contain no mention of the injuries which the author claims to have sustained as a result of the alleged beatings. Based on the material before it, the Committee therefore cannot find a violation of the Covenant on this ground.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of article 7 of the International Covenant on Civil and Political Rights.
11. Under article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Osbourne with an effective remedy, and should compensate him for the violation. The State party is also under an obligation to refrain from carrying out the sentence of whipping upon Mr. Osbourne. The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment.
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Comment
In this case the Committee found, like the African Commission and the European Court, that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment and that imposing the sentence of whipping with a tamarind switch would violate Article 7. In Matthews v. Trinidad and Tobago, Communication No. 569/1993, Views of 31 March 1998, the Committee reiterated its General Comment 20 maintaining that corporal punishment is incompatible with the provisions of Article 7.
Non-judicial corporal punishment
The European Court has reviewed several cases regarding non-judicial corporal punishment in the United Kingdom. In A. v. The United Kingdo (Application No. 25599/94, Judgement of 23 September 1998), a child was beaten by his stepfather with a garden cane applied with considerable force on a number of occasions. The stepfather was charged with assault, but a jury found him not guilty, because it was considered to be a ‘reasonable chastisement’ lawful under the domestic law. In the Court’s view, the ‘reasonable chastisement’ defence to a charge of assault on a child did not provide adequate protection against treatment or punishment contrary to Article 3. It concluded therefore, that in the circumstances of the case ‘the failure to provide adequate protection constitutes a violation of Art. 3 of the Convention.’ This failure is grounded in the existence of a law according to which deliberate violence against a child could be condoned on the basis that it was ‘reasonable’ and‘‘moderate’. The state was held in violation of Article 3 because of its failure to act, i.e. to amend or repeal a law that does not provide the protection required by the European Convention.
The approach adopted in the European system is not to classify all forms of moderate corporal punishment in schools as ‘institutionalised violence’ of the kind that constitutes degrading punishment in the sense of the above-mentioned Tyrer decision, but to examine each claim based on the particular circumstances of each case. Even a mere threat to inflict corporal punishment may be perceived as degrading, provided that there are sufficient elements of humiliation and debasement. Such a position can be inferred from the Court’s statement in Campbell and Cosans v. The United Kingdom that ‘it is not established that pupils at a school where such punishment is used are, solely by reason of the risk of being subjected thereto, humiliated or debased in the eyes of others to the requisite degree or at all’. Only in a few cases have the Strasbourg organs found the severity of corporal punishment to be sufficient to reveal degradation. Corporal punishment that has a permanent or lasting effect on a victim’s health is likely to be classified as torture and chastisement that leaves heavy bruising and swelling on the body of a victim for a lengthy period can be described as at least inhuman. Yet in none of their corporal punishment cases have the European organs found the degree of seriousness to exceed the level of degrading treatment or punishment (see A. v. The United Kingdom, where the Court was silent on a specific type of maltreatment) and a criteria to pinpoint the minimum level of physical suffering characterised as degrading is yet to be established. The only suggestion made by the Court is that severe and long-lasting effects are not indispensable for a violation of Article 3 (Costello-Roberts v. The United Kingdom , Application No. 13134/87, Judgement of 25 March 1993). In Y. v. The United Kingdom where the applicant, then 15 years old, was chastised through caning on his bottom, leaving heavy bruising and swelling on both buttocks, the Commission concluded that the chastisement caused physical injury and humiliation of such a kind as to be described as degrading. In contrast, in the Costello-Roberts case, where a headmaster at an independent school inflicted on a seven-year-old boy three ‘slipperings’ against his buttocks through his shorts with a rubber-soled gym shoe, the Court, by a narrow margin, concluded that the minimum level of degradation was not attained. The boundary separating acceptable physical chastisement from degrading corporal punishment depends not only on objective factors such as age, sex, religious or cultural background or health but also on subjective factors. In Warwick v. The United Kingdom, a relatively light caning on a girl’s hand can be viewed as degrading if the sense of humiliation is compounded by the presence of male head teachers (see alsoX. v. The United Kingdom ).
Until the Court’s seminal decision in A. v. United Kingdom, the applicability of Article 3 to cases of domestic corporal punishment was unclear. Under the First Protocol states are obliged to respect parents’ philosophical and religious convictions in relation to the implementation of education, including the way discipline is taught to children and Article 8 of the Convention stipulates respect for the right to family life, which encompasses matters of discipline and education. However, in Y. v. The United Kingdom, the Commission suggested that the evaluation of the minimum threshold of degradingness be made irrespective of are the authors of corporal punishment, describing corporal punishment causing severe physical injury and humiliation as ‘unacceptable whoever were to inflict the punishment, be it parent or teacher’. This reasoning tallies with the dynamic policy of expanding the scope of state responsibility for safeguarding the physical and mental integrity of vulnerable categories of individuals in a private context, such as children, hospital patients and the mentally-ill. Perhaps inadvertently, the Commission has also allowed the traditional boundaries of the sources of risk, which set apart the conduct of state organs from acts of private individuals, to be obscured. In that sense, the Commission’s approach in Y. v. The United Kingdom (Commission’s Report of 8 October 1991) anticipated the A v. The United Kingdom Court decision, where the unmistakable message was laid out that states should undertake positive obligations to furnish safeguards against affronts to physical integrity in a horizontal context.
The relatively cautious stance of the European system must be contrasted to the approach of the Human Rights Committee, which has consistently found corporal punishment to amount to ‘cruel, inhuman and degrading treatment or punishment’ contravening Article 7 of the ICCPR. The Human Rights Committee has, however, yet to review its General Comment 20 , which can be read as leaving room for ‘reasonable chastisement’:
5. The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee’s view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as educative or disciplinary measure. It is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.