Costello-Roberts v United Kingdom
| Judgment Date | 25 March 1993 |
RYSSDAL (PRESIDENT), BERNHARDT, THOR VILHJÁLMSSON, GÖLCÜKLÜ, MATSCHER, MACDONALD, BIJI, FREELAND AND WILDHABER, JJ
Corporal punishment – independent primary school – no parental consent obtained – whether in breach of Convention for the Protection of Human Rights and Fundamental Freedoms.
Summary – (1) Responsibility of responsible State. A school's disciplinary system falls within the ambit of the right to education which the State is obliged to secure to children under Article 2 of Protocol No 1. The fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools. The State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals. Accordingly, in the particular domain of school discipline, State responsibility is engaged if the treatment complained of is incompatible with Article 3 or 8 or both.
(2) The corporal punishment inflicted on the applicant did not constitute "degrading punishment" in all the circumstances of the case as it did not reach the required minimum threshold of severity.
Conclusion (by five votes to four): There was no violation of Article 3 of the Convention.
(3) The notion of "private life" was a broad one which was not susceptible to exhaustive definition. Not every act or measure adversely affecting physical or moral integrity of the person necessarily gave rise to an interference with the right to respect for private life. Article 3 was the first point of reference for examining a case concerning disciplinary measures in a school. The court did not exclude the possibility that there might be circumstances in which greater protection might be afforded by Article 8. However, in the circumstances on this case, the adverse effects were insufficient to bring it within its scope.
Conclusion (unanimously): There was no violation of Article 8 of the Convention.
(4) The remedy under Article 13 was available in respect of the grievances under Articles 3 and 8 which were "arguable" in terms of the Convention: that is those where it would have been open to the applicant to institute civil proceedings for assault. Its effectiveness was not dependent on the certainty of a favourable outcome, however, in such cases. The remedy allowing a contracting State's laws as such to be challenged before a national authority was not guaranteed by Article 13.
Conclusion (unanimously): There was no violation of Article 13 of the Convention.
Provisions of the Convention referred to:Articles 3, 8, 13, 25, 32, 44 and 46 to 48.
Statutory provisions referred to:Children Act 1989.
Children and Young Persons Act 1933, s 1.
Education Act 1944, ss 70 to 75 and 114.
Education Act 1980, s 80.
Education Act 1981.
Education (No 2) Act 1986, ss 47 and 48.
Offences Against the Person Act 1869, ss 42, 45 and 47.
Cases referred to in judgment:Belgian Linguistics case (23 July 1968), Series A no 6.
Boyle and Rice v United Kingdom (27 April 1988), Series A no 131.
Campbell and Cousins v United Kingdom (25 February 1982, Series A no 48.
Ireland v United Kingdom (18 January 1978), Series A no 25.
James and Others v United Kingdom (21 February 1986), Series A no 98.
Kjeldsen, Busk Madsen and Pederson v Denmark (7 December 1986), Series A no 23.
Maxine and Karen Warwick v United Kingdom (18 July 1986), Application no 9471/81, Decisions and Reports 60.
Niemietz v Germany (16 December 1992), Series A no 251-A.
Pine Valley Developments Ltd and Others v Ireland (29 November 1991), Series A no 222.
Soering v United Kingdom (7 July 1989), Series A no 161.
Tyrer v United Kingdom (25 April 1978), Series A no 26.
Van der Musselle v Belgium (23 November 1983), Series A no 70.
Y v United Kingdom (29 October 1992), Series A no 247-A.
Young, James and Webster v United Kingdom (13 August 1981), Series A no 44.
Notes(1) The summary does not bind the court.
(2) The case is numbered 89/1991/341/414. The first number is the case's position on the list of Cases referred to the court in the relevant year (second number). The last two numbers indicate the case's position on the list of Cases referred to the court since its creation and on the list of corresponding originating applications to the Commission.
(3) The court sat in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Article 11 of Protocol No 8 which came into force on 1 January 1990.
There appeared before the court:
For the Government:
Mrs A Glover, legal counsellor, Foreign and Commonwealth Office.
Mr N Bratza, QC
Mr N Preston, Department of Education.
Mr S Dance, Department of Education.
For the Commission:Sir Basil Hall, delegate.
For the applicant:Miss J Beale, barrister.
Mr M Gardner, solicitor.
Mr N Rosenbaum, adviser.
Procedure1. The case was referred to the court by the European Commission of Human Rights ("the Commission") on 7 December 1991, within the three-month period laid down in Article 32(1) and Article 47 of the Convention. It originated in an application (no 13134/87) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 on 17 January 1986 by two British citizens, Mrs Wendy Costello-Roberts and her son Jeremy. The expression "the applicant" hereinafter designates Jeremy, his mother's complaints having been declared inadmissible by the Commission (see paras 22–23 below).
The Commission's request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognized the compulsory jurisdiction of the court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 8 and 13 of the Convention.
2. In response to the inquiry made in accordance with r 33(3)(d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (r 30).
On 24 January 1992 the President of the court decided that, pursuant to r 21(6) and in the interests of the proper administration of justice, this case and the case of Y v The United Kingdom should be heard by the same chamber. Following a friendly settlement, the case of Y was struck out of the list by a judgment dated 29 October 1992 (Series A no 247-A).
4. The chamber to be constituted for this purpose included ex officio Sir John Freeland, the elected Judge of British nationality (Article 43 of the Convention), and Mr R Ryssdal, the President of the court: r 21(3)(b). On 24 January 1992 the President drew by lot, in the presence of the registrar, the names of the other seven members, namely Mr J Cremona, Mr Thór Vilhjálmsson, Mr F Gölcüklü, Mr R Macdonald, Mr R Bernhardt, Mr F Bigi and Mr L Wildhaber: Article 43 in fine of the Convention and r 21(4). Subsequently, Mr F Matscher, substitute Judge, replaced Mr Cremona, whose term of office had expired and whose successor had taken up his duties before the hearing: rr 2(3) and 22(1).
5. Mr Ryssdal assumed the office of President of the chamber: r 21(5) and, through the registrar, consulted the agent of the Government of the United Kingdom ("the Government"), the delegate of the Commission and the applicant's
representative on the organization of the procedure: rr 37(1) and 38. In accordance with the order made in consequence, the registrar received, on 23 June 1992, the applicant's memorial and, on 22 July the Government's. By letter of 17 August 1992, the Secretary to the Commission informed him that the delegate would submit his observations at the hearing.
6. In accordance with the decision of the President, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 September 1992. The court had held a preparatory meeting beforehand.
As to the facts I. The particular circumstances of the case7. In Sepember 1985 Mrs Costello-Roberts sent the applicant, who was then aged seven, to an independent boarding preparatory school in Barnstaple, Devon. The school had approximately 180 pupils, none of whose fees were paid out of public funds, and received no direct financial support from the Government.
8. In the school's prospectus it was stated that a high standard of discipline was maintained, but no mention was made of the use of corporal punishment. Mrs Costello-Roberts had made no inquiry about the school's disciplinary regime and did not at the outset make known her opposition to corporal punishment. The school in question operated a system whereby such punishment was administered upon acquisition of five demerit marks. On 3 October 1985 the applicant received his fifth demerit mark for talking in the corridor. The other demerit marks were for similar conduct and for being a little late for bed on one occasion. Having discussed the matter with his colleagues, the...
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