Instantie

Europees Hof voor de Rechten van de Mens

Samenvatting

Negenjarige jongen wordt door zijn stiefvader geslagen met een stok.
Stiefvader ontkent dit niet, maar stelt dat deze bestraffing nodig was. Onder
Engels recht kan in kindermishandelingszaken ter verdediging een beroep
worden gedaan op het feit dat de bestraffing in redelijkheid noodzakelijk
was. De stiefvader wordt door de jury vrijgesproken, hoewel de straf zo zwaar
was dat deze onder artikel 3 EVRM valt. Het EHRM concludeert dat de Engelse
recht onvoldoende bescherming biedt tegen bestraffing die in strijd met
artikel 3 EVRM komt.

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PROCEDURE

1. The case was referred to the Court by the European Commission of Human
Rights (“the Commission”) on 27 October 1997, within the three-month period
laid down by Article 32 1 and Article 47 of the Convention. It originated
in an application (no. 25599/94) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25 by a British
national, “A.”, on 15 July 1994. The applicant asked the Court not to reveal
his identity.
The Commission’s request referred to Articles 44 and 48 and the declaration
whereby the United Kingdom recognised 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, 13 and 14 of the Convention.

2. In response to the enquiry made in accordance with Rule 33 3 (d) of
Rules of Court A, the applicant stated that he wished to take part in the
proceedings and designated the lawyers who would represent him (Rule 30).

3. The Chamber to be constituted 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 (Rule 21 4 (b)). On 28 November
1997, in the presence of the Registrar, Mr Ryssdal drew by lot the names of
the other seven members, namely Mr L.-E. Pettiti, Mr C. Russo, Mrs E. Palm,
Mr J. Makarczyk, Mr P. Kuris, Mr J. Casadevall and Mr V. Toumanov (Article 43
in fine of the Convention and Rule 21 5). Subsequently Mr R. Bernhardt, who
had been elected President of the Court, replaced Mr Ryssdal, who had died
(Rule 21 6, second sub-paragraph).

4. As President of the Chamber at that time (Rule 21 6), Mr Ryssdal, acting
through the Registrar, had consulted the Agent of the United Kingdom
Government (“the Government”), the applicant’s lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 1 and 38).
Pursuant to the order made in consequence, the Registrar received the
applicant’s and the Government’s memorials on 27 February and 4 March 1998
respectively.

5. Mr Makarczyk was unable to take part in the further consideration of the
case and was therefore replaced by Mr P. van Dijk, substitute judge (Rules 22
1 and 24 1).

6. In accordance with the President’s decision, the hearing took place in
public in the Human Rights Building, Strasbourg, on 22 June 1998. The Court
had held a preparatory meeting beforehand.

There appeared before the Court:
(a) for the Government
Mr M. Eaton, Foreign and Commonwealth Office, Agent,
Mr D. Pannick QC, Barrister-at-Law,
Mr M. Shaw, Barrister-at-Law, Counsel,
Ms S. Ryan, Department of Health,
Ms C. Riccardi, Department of Health, Advisers;
(b) for the Commission
Mr N. Bratza, Delegate;

(c) for the applicant
Mr A. Levy QC, Barrister-at-Law,
Mr T. Eicke, Barrister-at-Law, Counsel,
Mr M. Gardner, Solicitor,
Mr P. Newell, Adviser.

The Court heard addresses by Mr Bratza, Mr Levy and Mr Pannick.

AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE

7. The applicant is a British citizen, born in 1984.
In May 1990 he and his brother were placed on the local child protection
register because of “known physical abuse”. The cohabitant of the boys’
mother was given a police caution after he admitted hitting A. with a cane.
Both boys were removed from the child protection register in November 1991.
The cohabitant subsequently married the applicant’s mother and became his
stepfather.

8. In February 1993, the head teacher at A.’s school reported to the local
Social Services Department that A.’s brother had disclosed that A. was being
hit with a stick by his stepfather. The stepfather was arrested on 5 February
1993 and released on bail the next day.

9. On 5 February 1993 the applicant was examined by a consultant
paediatrician, who found the following marks on his body, inter alia: (1) a
fresh red linear bruise on the back of the right thigh, consistent with a
blow from a garden cane, probably within the preceding twenty-four hours; (2)
a double linear bruise on the back of the left calf, consistent with two
separate blows given some time before the first injury; (3) two lines on the
back of the left thigh, probably caused by two blows inflicted one or two
days previously; (4) three linear bruises on the right bottom, consistent
with three blows, possibly given at different times and up to one week old;
(5) a fading linear bruise, probably several days old.
The paediatrician considered that the bruising was consistent with the use of
a garden cane applied with considerable force on more than one occasion.

10. The stepfather was charged with assault occasioning actual bodily harm
and tried in February 1994. It was not disputed by the defence that the
stepfather had caned the boy on a number of occasions, but it was argued that
this had been necessary and reasonable since A. was a difficult boy who did
not respond to parental or school discipline.
In summing up, the judge advised the jury on the law as follows:
“… What is it the prosecution must prove? If a man deliberately and
unjustifiably hits another and causes some bodily injury, bruising or
swelling will do, he is guilty of actual bodily harm. What does
‘unjustifiably’ mean in the context of this case? It is a perfectly good
defence that the alleged assault was merely the correcting of a child by its
parent, in this case the stepfather, provided that the correction be moderate
in the manner, the instrument and the quantity of it. Or, put another way,
reasonable. It is not for the defendant to prove it was lawful correction. It
is for the prosecution to prove it was not.
This case is not about whether you should punish a very difficult boy. It is
about whether what was done here was reasonable or not and you must judge
that…”

11. The jury found by a majority verdict that the applicant’s stepfather was
not guilty of assault occasioning actual bodily harm.

II. relevant domestic law

A. Criminal sanctions against the assault of children

12. The applicant’s stepfather was charged with “assault occasioning actual
bodily harm” contrary to section 47 of the Offences against the Person Act
1861, as amended. An “assault”, for the purposes of this section, includes an
act by which a person intentionally or recklessly inflicts personal violence
upon another. “Actual bodily harm” includes any hurt or injury calculated to
interfere with the health or comfort of the victim; the hurt or injury need
not be permanent but must be more than transitory or trifling. The maximum
penalty on conviction is five years’ imprisonment.

13. In addition, it is an offence under section 1(1) of the Children and
Young Persons Act 1933 to assault or ill-treat a child in a manner likely to
cause him unnecessary suffering or injury to health. The maximum penalty on
conviction is ten years’ imprisonment.

14. In criminal proceedings for the assault of a child, the burden of proof
is on the prosecution to satisfy the jury, beyond a reasonable doubt, inter
alia that the assault did not constitute lawful punishment.
Parents or other persons in loco parentis are protected by the law if they
administer punishment which is moderate and reasonable in the circumstances.
The concept of “reasonableness” permits the courts to apply standards
prevailing in contemporary society with regard to the physical punishment of
children.
Corporal punishment of a child by a teacher cannot be justified if the
punishment is inhuman or degrading. In determining whether punishment is
inhuman or degrading, regard is to be had to “all the circumstances of the
case, including the reason for giving it, how soon after the event it is
given, its nature, the manner and circumstances in which it is given, the
persons involved and its mental and physical effects” (section 47(1)(a) and
(b) of the Education (no. 2) Act 1986, as amended by section 293 of the
Education Act 1993).

B. Civil remedies for assault

15. Physical assault is actionable as a form of trespass to the person,
giving the aggrieved party the right to recovery of damages. In civil
proceedings for assault, whilst the elements of the tort are the same as
those of the criminal offence, the burden of proof of establishing that
punishment was reasonable is on the defendant, on the balance of
probabilities.

PROCEEDINGS BEFORE THE COMMISSION

16. A. applied to the Commission on 15 July 1994. He complained that the
State had failed to protect him from ill-treatment by his step-father, in
violation of Articles 3 and/or 8 of the Convention; that he had been denied a
remedy for these complaints in violation of Article 13; and that the domestic
law on assault discriminated against children, in violation of Article 14 in
conjunction with Articles 3 and 8.

17. The Commission declared the application (no. 25599/94) admissible on 9
September 1996. In its report of 18 September 1997 (Article 31), it expressed
the opinion that there had been a violation of Article 3 (unanimously); that
it was not necessary to consider the complaint under Article 8 (sixteen votes
to one); that there had been no violation of Article 13 (unanimously) and
that it was not necessary to consider the
complaint under Article 14 in conjunction with Articles 3 and 8 of the
Convention. The full text of the Commission’s opinion and of the two separate
opinions contained in the report is reproduced as an annex to this judgment.

FINAL SUBMISSIONS TO THE COURT

18. In their memorial and at the hearing, the Government accepted the
reasoning and the conclusion of the Commission that there had been a
violation of Article 3. However, they asked the Court to confine itself to
considering the facts of the case without making any general statement about
the corporal punishment of children.
The applicant asked the Court to find violations of Articles 3 and 8 of the
Convention and to confirm that national law should not condone directly or by
implication any level of deliberate violence to children.

AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19. The applicant asked the Court to find a violation of Article 3 of the
Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
Both the Commission and the Government accepted that there had been a
violation of Article 3. Despite this, the Court considers it necessary to
examine itself the issues in this case (see, for example, the Findlay v. the
United Kingdom judgment of 25 February 1997, Reports of Judgments and
Decisions 1997-I, p. 263). As is its usual practice, the Court will limit
examination to the specific facts of the case before it.

20. The Court recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of
this minimum 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 (see the Costello-Roberts v. the United Kingdom judgment of 25
March 1993, Series A no. 247-C, p. 59, 30).

21. The Court recalls that the applicant, who was then nine years old, was
found by the consultant paediatrician who examined him to have been beaten
with a garden cane which had been applied with considerable force on more
than one occasion (see paragraph 9 above).
The Court considers that treatment of this kind reaches the level of severity
prohibited by Article 3.

22. It remains to be determined whether the State should be held responsible,
under Article 3, for the beating of the applicant by his stepfather.
The Court considers that the obligation on the High Contracting Parties under
Article 1 of the Convention to secure to everyone within their jurisdiction
the rights and freedoms defined in the Convention, taken together with
Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhuman
or degrading treatment or punishment, including such ill-treatment
administered by private individuals (see, mutatis mutandis, the HLR v.
France judgment of 29 April 1997, Reports 1997-III, p. 758, 40). 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 (see, mutatis mutandis, the X and Y v. the
Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11-13, 21-27;
the Stubbings and Others v. the United Kingdom judgment of 22 October 1996,
Reports 1996-IV, p. 1505, 62û64; and also the United Nations Convention on
the Rights of the Child, Articles 19 and 37).

23. The Court recalls that under English law it is a defence to a charge of
assault on a child that the treatment in question amounted to “reasonable
chastisement” (see paragraph 14 above). The burden of proof is on the
prosecution to establish beyond reasonable doubt that the assault went beyond
the limits of lawful punishment. In the present case, despite the fact that
the applicant had been subjected to treatment of sufficient severity to fall
within the scope of Article 3, the jury acquitted his stepfather, who had
administered the treatment (see paragraphs 10-11 above).

24. In the Court’s view, the law did not provide adequate protection to the
applicant against treatment or punishment contrary to Article 3. Indeed, the
Government have accepted that this law currently fails to provide adequate
protection to children and should be amended.
In the circumstances of the present case, the failure to provide adequate
protection constitutes a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

25. Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private a lifea
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.”

26. The Commission concluded that, given its finding of a violation of
Article 3, it was not necessary to consider the issues under Article 8. The
Government asked the Court also to take this approach.

27. In his memorial to the Court, the applicant submitted that, if the Court
were to find a violation of Article 3, he would not pursue his complaint
under Article 8. However, at the hearing before the Court, he contended that,
in the light of the Government’s memorial and their proposals for legislative
change, it was necessary for the Court to rule under Article 8 in order to
provide guidance to the Government and protection for children against all
forms of deliberate violence.

28. The Court recalls that it has found a violation of Article 3 in the
present case. In these circumstances it is not necessary to examine whether
the inadequacy of the legal protection provided to A. against the
ill-treatment that he suffered also breached his right to respect for private
life under Article 8.

III. ALLEGED VIOLATIONS OF ARTICLES 13 AND 14 OF THE CONVENTION

29. The applicant accepted the Commission’s finding of no violation of
Article 13 of the Convention and did not pursue his complaint under Article
14 of the Convention taken in conjunction with Articles 3 and/or 8.

30. In these circumstances, it is not necessary for the Court to consider
these complaints.

IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION

31. The applicant claimed just satisfaction under Article 50 of the
Convention, which provides:
“If the Court finds that a decision or a measure taken by a legal authority
or any other authority of a High Contracting Party is completely or partially
in conflict with the obligations arising from the … Convention, and if the
internal law of the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured party.”

A. Non-pecuniary damage
32. The applicant sought compensation for the grave physical abuse which he
had suffered at the hands of his stepfather. He pointed out that, because of
the inadequacy of English law, he had also had to endure the trauma of
criminal proceedings which resulted in the acquittal of his stepfather. At
the hearing before the Court, his representative suggested that 15,000 pounds
sterling (GBP) would be an appropriate sum by way of compensation.

33. Prior to the hearing before the Court, the Government had informed the
applicant that they accepted the Commission’s finding of violation of Article
3 and undertook to amend domestic law. In addition, they had offered the
applicant an ex gratia payment of GBP 10,000. At the hearing before the
Court, however, they submitted that, in the light of their undertaking to
amend the law, a finding of a breach would be adequate just satisfaction.

34. The Court considers that, in the circumstances of the case, the applicant
should be awarded GBP 10,000 in respect of compensation for non-pecuniary
damage.

B. Costs and expenses
35. The applicant claimed legal costs and expenses totalling GBP 48,450.

36. The Government submitted that, in view of their admission of a violation
of Article 3 and offer of settlement, the applicant should not receive any
legal costs in respect of the proceedings before the Court. In any event,
they considered that the hourly rates charged by his representatives and the
number of hours charged were excessive and should be reduced.

37. In view of the limited number of issues raised by the case and the
absence of any detailed breakdown of the costs claimed, the Court considers
the sum requested by the applicant to be excessive (see, for example, the
Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, p.
1856, 66). Making its assessment on an equitable basis, it awards GBP
20,000 in respect of costs and expenses, less the amounts received by way of
legal aid from the Council of Europe, but together with any value-added tax
which may be payable.

C. Default interest
38. According to the information available to the Court, the statutory rate
of interest applicable in the United Kingdom at the date of adoption of the
present judgment is 7.5% per annum.

FOR THESE REASONS, THE COURT unanimously

1. Holds that there has been a violation of Article 3 of the Convention;

2. Holds that it is not necessary to consider the applicant’s complaints
under Articles 8, 13 or 14 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months,
in respect of non-pecuniary damage, 10,000 (ten thousand) pounds sterling;
(b) that the respondent State is to pay the applicant, within three months,
in respect of costs and expenses, 20,000 (twenty thousand) pounds sterling,
less 35,264 (thirty-five thousand two hundred and sixty-four) French francs
to be converted into pounds sterling at the rate applicable on the date of
delivery of the present judgment, together with any value-added tax which may
be payable;
(c) that simple interest at an annual rate of 7.5% shall be payable on those
sums from the expiry of the above-mentioned three months until settlement.
Done in English and in French, and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 23 September 1998.

Rechters

Bernhardt, Pettiti, Russo, Palm, Freeland, Kuris, Casadevall, Van Dijk,Toumanov