THE FACTS
The facts of the case may be summarised as follows:
The first applicant is a United Kingdom citizen, born in 1957 and
resident at C., Isle of Man. The second applicant was born in 1956. He
is equally a United Kingdom citizen and resident at C. on the Isle of
Man. Both applicants are represented by Mr. G., Legal Officer of the
National Council of Civil Liberties, who is acting under authorities
from the applicants,dated 5 and 6 September 1972 respectively. The
applicants' parents have given their consent to the bringing of the
applications.
From the statements submitted by the applicants it appears that on ..
March 1972 they pleaded guilty at C. Juvenile Court, Isle of Man, to
unlawful assault occasioning actual bodily harm to one M., a prefect
at R.in C., contrary to Section 60 of the Criminal Code 1872. On the
same day they were sentenced to strokes of the birch under Sections 8
and 10 of the Summary Jurisdiction Act 1960 (Isle of Man, the first
applicant to five strokes and the second applicant to three strokes.
Only the second applicant appealed against his sentence to the Staff
of Government Division at the Manx Court of Criminal Appeal. The appeal
was heard on .. April 1972 and the Court, after having ordered the
applicant's medical examination, dismissed the appeal on the same day.
The Court found that the attack on the prefect, who had reported the
applicants to the headmaster for taking beer into school, had been very
serious and that the sentence was lawful, no question having been
raised as to its legality.
The first applicant stated that he did not challenge his sentence as
an appeal did not stand much chance of success, his elder brother
already having been birched two years earlier.
On .. March 1972 the first applicant received three strokes of the
birch, the police doctor examined him and advised the giving of three
strokes only. The second applicant received three strokes on .. April
1972. Doctors were present at both birchings.
Complaints
The applicants' complaints were directed against Section 8 of the
Summary Jurisdiction Act 1960 (Isle of Man) as well as other sections
of the Act and other legislation in force in the United Kingdom, its
Islands, Colonies or other territories or possessions to which the
Convention applies.
They complained in particular, that
- The corporal punishment imposed on them constituted degrading
treatment within the meaning of Article 3 of the Convention;
- such punishment was destructive of family well-being and therefore
contrary to Article 8 of the Convention;
- no remedies existed to rectify the violation which was inconsistent
with Article 13 of the Convention;
- the punishment was discriminatory within the meaning of Article 14
of the Convention in that it was primarily pronounced on persons from
financially and socially deprived homes;
- the violation of Article 3 of the Convention also constituted a
violation of Article 1 of the Convention.
The first applicant also alleged a violation of Article 6 of the
Convention but did not give any particulars in this respect. This
applicant further submitted that Article 26 was not applicable in his
case, the scope of which was to determine the compatibility with the
Convention of legislative measures and judicial practices in the Isle
of Man. He referred in this respect to Application No. 176/56
(Yearbook, Vol. 2, pp. 174, 184). Furthermore, the undoubtedly lawful
sentence was per se degrading treatment contrary to Article 3 against
which no remedy could be available, and an appeal against sentence
would, in this case, have been no more than an appeal for clemency
which was not a remedy to be exhausted under Article 26 (cf.Application
No. 458/59, Yearbook, Vol. 3, p. 234). Apart from this, an appeal would
have been ineffective, as evidenced by the unsuccessful appeal of the
second applicant and in view of the fact that there were no special
circumstances justifying a higher court's interference with corporal
punishment. Furthermore, the applicant did not wish to prolong the
profound mental agony on him and his family occasioned by the delay
until the "birching" would have been administered.
Both applicants claimed damages as well as repeal of the legislation
concerned. They requested that their applications should be joined.
Proceedings before the Commission
The Commission examined the applications on 19 December 1973 and
decided that they should be joined in accordance with Rule 39 of its
Rules of Procedure . It further decided that, in accordance with Rule
46, 2 b) of the Rules of Procedure, notice should be given to the
Government of the United Kingdom of the applications and that the
Government should be invited to submit their observations in writing
on the admissibility of the issues under Articles 3 and 14 of the
Convention arising in these applications. The Commission considered
that it did not require observations in regard to the applicants
complaints under Articles 1, 8 and 13 of the Convention.
The Government submitted their observations on 24 April 1974 and the
applicants' lawyer replied on 10 June 1974.
Submissions of the Parties
1. The respondent Government submitted that the whole of the first
applicant's application No. 5775/72 was inadmissible for non-exhaustion
of domestic remedies and that the applications were manifestly
ill-founded on the issue raised under Article 14 of the Convention. On
the other hand, the Government did not wish to contest the
admissibility of the question whether the punishment by birching
inflicted on the applicants constituted degrading treatment within the
meaning of Article 3 of the Convention, but reserved their position in
this respect to the proceedings on the merits.
Explaining their position in the case the Government first gave an
outline of the relevant constitutional law and practice. The Isle of
Man was not a part of the United Kingdom, but a dependency of the Crown
with its own legislative assembly, courts of law and administrative and
fiscal systems. However, the United Kingdom Government were responsible
for the Island's defence and international relations and the Crown
acted through the Privy Council on the recommendation of Ministers of
the United Kingdom Government in their capacity as Privy Counsellors.
The Home Secretary was the Privy Counsellor charged with prime
responsibility for Island affairs.
The legislative assembly of the Isle of Man was the Court of Tynwald.
It consisted of the Lieutenant Governor who was appointed by, and was
the representative of the Crown, of 24 members elected by adult
universal suffrage constituting the House of Keys, and of seven members
elected by the House of Keys who, with three ex-officio members,
constituted the Legislative Council. The Court of Tynwald legislated
for the Island in domestic matters, such legislation requiring
ratification by Her Majesty in Council. It was the responsibility of
the Home Secretary to advise the Privy Council in each instance whether
or not to recommend to Her Majesty that an Island law should be
ratified.
The United Kingdom Parliament had power to legislate for the Isle of
Man but not use that power, in the ordinary course, without the
concurrence of the Isle of Man Government, in respect of matters which
were entirely domestic to the Isle of Man.
The Government next set out the relevant penal law and practice on the
Isle of Man (see Annex) as well as the facts of the case as they have
been stated above.
As regards the admissibility of the applications the Government
maintained that no evidence had been put forward in support of the
contention that corporal punishment was primarily pronounced on persons
from financially and socially deprived homes and that Article 14 of the
Convention was therefore violated. Moreover, there was no ground for
supposing that sentences imposing corporal punishment have in any way
been influenced by considerations of social origin, or by any of the
other considerations declared by Article 14 of the Convention to
constitute discrimination.
Finally, as regards Article 26 of the Convention which the respondent
Government invoked in respect of the first applicant's application, it
was submitted that this applicant had failed to exercise his right to
appeal against his sentence to the Staff of Government Division of the
High Court of Justice of the Isle of Man. The requirement of Article
26 was in mandatory terms, and the Commission had frequently held that
the possibility, or even likelihood, of an appeal being unsuccessful,
was not a valid reason for failing to exhaust the remedies (cf.
Application No. 2257/64, Yearbook, Vol. 11, p. 180 and Application No.
3485/68, Yearbook, Vol. 12, p. 288).
2. The applicants, in their reply, first withdrew their applications
in respect of the issue raised under Article 14 of the Convention.
Furthermore, since the admissibility of the second applicant's
application was conceded by the respondent Government, the further
observations referred only to the first applicant's case and to the
question of exhaustion of domestic remedies in accordance with Article
26 of the Convention.
The Commission had always recognised that an exception to the general
rule contained in Article 26 was made where the remedy available was
not an effective remedy and in respect of "special circumstances which
might have absolved the applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal" (cf. Application No. 3485/68, loc. cit.). The
applicant maintained that in his case appeal to the Staff of Government
Division would not have been an effective remedy or, in the
alternative, the special facts of his case absolved him from the
necessity of pursuing this particular remedy. Referring also to his
previous submissions he pointed out, in particular, that
- the second applicant had pursued such an appeal and failed;
- there were no special circumstances why the first applicant should
have received more favourable treatment on appeal;
- indeed, the trial court had considered the first applicant to be the
ringleader so that no appeal court could have taken a lighter view
of the acts of the first applicant than was taken of those of the
second applicant;
- the first applicant was therefore faced with the impossibility of a
successful appeal;
- furthermore, this application concerned a judicially and
legislatively sanctioned administrative practice and as such fell
outside the restrictions of Article 26 of the Convention.
The Commission was therefore urged to declare both applications
admissible with respect to the issues raised under Article 3 of the
Convention.
THE LAW
1. Both applicants have withdrawn their applications in respect of the
issue raised by them under Article 14 (Art. 14) of the Convention,
namely that their punishment was discriminatory within the meaning of
that provision in that it was primarily pronounced on persons from
financially and socially deprived homes.
The Commission observes that there are no reasons of a general
character affecting the observance of the Convention which would
necessitate a further examination of these complaints. It therefore
decides not to proceed with the examination of these parts of the
applications which have been with drawn by the applicant.
2. The Commission has next considered the remainder of the first
applicant's application (No. 5775/72) in which he complained that the
corporal punishment imposed on him and the circumstances connected
therewith constituted breaches of Articles 1, 3, 6, 8 and 13
(Art. 1, 3, 6, 8, 13) of the Convention.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of these provisions as, under Article 26 (Art. 26) of the Convention,
it may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case it is uncontested that this applicant failed to
appeal against his sentence to the staff of Government Division of the
High Court of Justice of the Isle of Man in accordance with Section 1
of the Summary Jurisdiction Act 1956 (Isle of Man). He has, therefore,
not exhausted the remedies available to him under the domestic law.
Moreover, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of international
law, from exhausting the domestic remedies at this disposal.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and the remainder of his
application must be rejected under Article 27 (3) (Art. 27-3), of the
Convention.
3. The Commission has then considered the remainder of the second
applicant's application (No. 5856/72) concerning his punishment by
birching to which he was sentenced by the C. Juvenile Court, Isle of
Man. This sentence was confirmed on appeal by the Staff of Government
Division at the Manx Court of Criminal Appeal, Isle of Man.
a) In this connection the applicant has first complained that the
corporal punishment imposed on him constituted a breach of Article 3
(Art. 3) of the Convention.
The respondent Government have not contested the admissibility of this
part of the application, but have reserved to the proceedings on the
merits their position as to whether or not the punishment inflicted on
the applicant constituted treatment contrary to Article 3 (Art. 3) of
the Convention.
Article 3 (Art. 3) protects everyone against "torture or inhuman or
degrading treatment or punishment" and the Commission considers that
the question of corporal punishment raises as such an issue under that
provision. The Commission has further considered ex officio that,
insofar as the Summary Jurisdiction Act 1960 (Isle of Man) provides for
such punishment only with regard to male children and male young
persons, issues arise as to whether or not this constitutes
discrimination on grounds of sex and/or age, contrary to Article 14
(Art. 14) of the Convention, read in conjunction with Article 3
(Art. 3).
b) This applicant has further complained that the violation of Article
3 (Art. 3) also constituted a violation of Article 1 (Art. 1) of the
Convention; that such punishment was destructive of family well-being
and therefore contrary to Article 8 (Art. 8) of the Convention; and
that no remedies existed to rectify the violations, which was
inconsistent with Article 13 (Art. 13) of the Convention. However, the
Commission finds that there is no such substance in these allegations.
Insofar as Article 1 (Art. 1) of the Convention is concerned, the
applicant, having alleged breaches of Section I of the Convention, has
not shown any reason for a separate consideration of Article 1
(Art. 1).
Insofar as Article 8 (Art. 8) of the Convention is concerned, it is
true that this provision protects, subject to certain limitations,
everyone's right to respect for his private and family life, his home
and his correspondence. However, an examination by the Commission of
this complaint as it has been submitted does not disclose any
appearance of a violation of the above rights and freedoms in the
present case.
Finally, insofar as Article 13 (Art. 13) of the Convention is
concerned, this Article provides that everyone "whose rights and
freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official
capacity". Therefore, insofar as this application is inadmissible,
there is no basis for the application of Article 13 (Art. 13).
On the other hand, insofar as the application is admissible, and even
assuming that a violation of Article 3 (Art. 3) of the Convention
either alone or read in conjunction with Article 14 (Art. 14) can
eventually be established by the applicant, the Commission notes that
his case has in fact been heard by an appeal tribunal which dealt with
the question of his sentence, Article 13 (Art. 13) has therefore been
satisfied.
It follows that these parts of the application are manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention.
For these reasons the Commission
1. DECIDES NOT TO PROCEED FURTHER with an examination of both
applicants' complaints under Article 14 (Art. 14) of the Convention as
they have been formulated by them and withdrawn.
2. DECLARES INADMISSIBLE the remainder of Application No. 5775/72.
3. DECLARES ADMISSIBLE and retains, without in any way prejudging
their merits, those parts of Application No. 5856/72 which raise issues
under Article 3 (Art. 3) of the Convention, either alone or in
conjunction with Article 14 (Art. 14).
4. DECLARES INADMISSIBLE the remainder of Application No. 5856/72.