In the Tyrer case,

The European Court of Human Rights sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as "the
Convention") and Rule 21 of the Rules of Court, as a Chamber composed
of the following judges:

Mr. G. BALLADORE PALLIERI, President,
Mr. J. CREMONA,
Mrs. H. PEDERSEN,
Mr. Thór VILHJÁLMSSON,
Sir Gerald FITZMAURICE,
Mr. P.-H. TEITGEN,
Mr. F. MATSCHER,

and Mr. H. PETZOLD, Deputy Registrar,

Having deliberated in private from 17 to 19 January and on 14 and
15 March 1978,

Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE

1.  The Tyrer case was referred to the Court by the European
Commission of Human Rights (hereinafter referred to as "the
Commission").  The case originated in an application against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Commission on 21 September 1972 under Article 25 (art. 25) of the
Convention by a United Kingdom citizen, Mr. Anthony M. Tyrer.

2.  The Commission's request, to which was attached the report
provided for under Article 31 (art. 31) of the Convention, was lodged
with the registry of the Court on 11 March 1977, within the period of
three months laid down by Articles 32 para. 1 and 47 (art. 32-1,
art. 47).  The request referred to:

- Articles 44 and 48 (art. 44, art. 48);

- the declaration of 12 September 1967 made by the United Kingdom
recognising, in respect of certain territories (including the Isle of
Man) for whose international relations it was responsible, the
compulsory jurisdiction of the Court (Article 46) (art. 46);

- the subsequent renewals of that declaration and particularly the
renewal dated 21 April 1972 which was in force at the time the
application was lodged with the Commission.

The purpose of the Commission's request is to obtain a decision from
the Court as to whether or not the facts of the case disclose a breach
by the respondent State of its obligations under Article 3 (art. 3)
of the Convention.

3.  The Chamber of seven judges to be constituted included, as ex
officio members, Sir Gerald Fitzmaurice, the elected judge of British
nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore
Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of
Court).  On 23 March 1977, the President of the Court drew by lot, in
the presence of the Deputy Registrar, the names of the five other
members, namely Mr. J. Cremona, Mrs. H. Pedersen, Mr. Thór
Vilhjálmsson, Mr. P.-H. Teitgen and Mr. F. Matscher (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).

Mr. Balladore Pallieri assumed the office of President of the Chamber
(Rule 21 para. 5).

4.  The President of the Chamber ascertained, through the Registrar,
the views of the Agent of the Government of the United Kingdom
(hereinafter called "the Government") and the delegates of the
Commission regarding the procedure to be followed; having regard to
their concurring statements, the President decided by an Order of
28 June 1977 that it was not necessary at that stage for memorials to
be filed.  He also instructed the Registrar to invite the Commission
to produce certain documents and these were received at the registry
on 7 July.

5.  After consulting, through the Registrar, the Agent of the
Government and the delegates of the Commission, the President decided
by an Order of 1 August 1977 that the oral hearings should open on
17 January 1978.

6.  By letter of 1 December 1977, the Agent of the Government
transmitted a request by the Government of the Isle of Man that the
Chamber should carry out an investigation on the spot in the Island
pursuant to Rule 38 para. 2 of the Rules of Court.  The purpose of the
visit as envisaged by the Government of the Isle of Man was that the
Court should "become acquainted at first hand with local circumstances
and requirements in the Isle of Man, having regard to Article 63 para. 3
(art. 63-3) of the Convention, by meeting ... leading members of the
Manx community".

At a meeting held in private in Strasbourg on 13 December 1977, the
Chamber resolved to defer its decision on this request until after the
oral hearings.

7.  The oral hearings were held in public at the Human Rights
Building, Strasbourg, on 17 January 1978.

There appeared before the Court:

- for the Government:

Mr. D.H. ANDERSON, Legal Counsellor, Foreign and Commonwealth Office,
                                                          Agent,

Mr. L.J. BLOM-COOPER, Q.C.,

Mr. J.W. CORRIN, Attorney-General, Isle of Man,

Mr. A. COLLINS, Barrister-at-Law,                         Counsel,

Mrs. S.A. EVANS, Legal Advisers' Branch, Home Office,

Mr. J.W.C. HAINES, Treasury Solicitor's Department,       Advisers;

- for the Commission:

Mr. L. KELLBERG,                                   Principal Delegate,

Mr. K. MANGAN,                                     Delegate.

The Court heard Mr. Kellberg for the Commission and Mr. Blom-Cooper
and Mr. Corrin for the Government; Mr. Corrin addressed the Court on
the relevant circumstances pertaining in the Isle of Man.

At the hearing, the Government produced certain documents to the Court
and the Attorney-General for the Isle of Man renewed the request that
an investigation on the spot be carried out in accordance with
Rule 38 para. 2.

8.  During its deliberations from 17 to 19 January 1978, the Chamber
decided that the very fully information which had been supplied to the
Court concerning this case rendered it unnecessary to carry out the
investigation requested.  The President informed the Agent of the
Government of this decision on 19 January.

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).

He appealed against sentence to the Staff of Government Division of
the High Court of Justice of the Isle of Man.  The appeal was heard
and dismissed on the afternoon of 28 April 1972; the court considered
that an unprovoked assault occasioning actual bodily harm was always
very serious and that there were no reasons for interfering with the
sentence.  The court had ordered the applicant to be medically
examined in the morning of the same day and had before it a doctor's
report that the applicant was fit to receive the punishment.

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.

11.  The applicant was sentenced pursuant to section 56 (1) of the
Petty Sessions and Summary Jurisdiction Act 1927 (as amended by
section 8 of the Summary Jurisdiction Act 1960) whereby:

"Any person who shall -

(a) unlawfully assault or beat any other person;

(b) make use of provoking language or behaviour tending to a breach of
the peace,

shall be liable on summary conviction to a fine not exceeding thirty
pounds or to be imprisoned for a term not exceeding six months and, in
addition to, or instead of, either such punishment, if the offender is
a male child or male young person, to be whipped."

The expressions "child" and "young person" mean, respectively, an
individual of or over the age 10 and under 14 and an individual of or
over the age of 14 and under 17.

12.  Execution of the sentence was governed by the following
provisions:

(a) Section 10 of the Summary Jurisdiction Act 1960

"(a) the instrument used shall, in the case of a child, be a cane, and
in any other case shall be a birch rod;

(b) the court in its sentence shall specify the number of strokes to
be inflicted, being in the case of a child not more than six strokes,
and in the case of any other person not more than twelve strokes;

(c) the whipping shall be inflicted privately as soon as practicable
after sentence and in any event shall not take place after the
expiration of six months from the passing of the sentence;

(d) the whipping shall be inflicted by a constable in the presence of
an inspector or other officer of police of higher rank than a
constable, and, in the case of a child or young person, also in the
presence if he desires to be present, of the parent or guardian of the
child or young person."

(b) Directive of the Lieutenant-Governor, dated 30 May 1960

"l.  The instruments to be used shall be: -

(i) in the case of a male child who is under the age of 14 years, a
light cane not exceeding four feet in length and not exceeding half an
inch in diameter,

and

(ii) in the case of a male person who is of the
age of 14 years but is under the age of 21 years a birch rod of the
following dimensions:

Weight not exceeding                                   9 ounces

Length from end of handle to tip of spray             40 inches

Length of handle                                      15 inches

Circumference of spray at centre                       6 inches

Circumference of handle at top of binding          3 1/2 inches

Circumference of handle 6 inches from end          3 1/4 inches

2.  In all cases where a Court is empowered to impose a sentence of
whipping a medical report as to whether the offender is fit to receive
the punishment will be made available to the Magistrates before they
consider sentence.  Arrangements for this report will be made by the
Clerk of the Court.

3.  The whipping shall be inflicted on the posterior over the child's
ordinary cloth trousers.

4.  A medical practitioner shall be present during a birching and may
at his discretion order the stopping of the punishment at any time.
Where a birching has been stopped on medical grounds a report of the
facts shall be forwarded immediately to His Excellency."

With reference to paragraph 3 of the Directive, the Court was advised
at the hearing on 17 January 1978 that, in the light of the
Commission's report, an amendment had recently been made by the Isle
of Man Government whereby the punishment is to be administered over
ordinary cloth trousers in all cases irrespective of the offender's
age.

B. General background

13.  The Isle of Man is not a part of the United Kingdom but a
dependency of the Crown with its own government, legislature and
courts and its own administrative, fiscal and legal systems.  The
Crown is ultimately responsible for the good government of the Island
and acts in this respect through the Privy Council on the
recommendation of Ministers of the United Kingdom Government in their
capacity as Privy Counsellors.  In that capacity, the Home Secretary
is charged with prime responsibility for Isle of Man affairs.

Prior to October 1950, the United Kingdom Government regarded
international treaties applicable to the United Kingdom as extending,
in the absence of contrary provision, to the Isle of Man.  Thereafter,
they no longer so regarded such treaties unless there were an express
inclusion and they treated the Island as a territory for whose
international relations they were responsible.  In fact, by letter
dated 23 October 1953 addressed to the Secretary-General of the
Council of Europe, the Government of the United Kingdom declared, in
accordance with Article 63 (art. 63) of the Convention, that the
Convention should extend to a number of such territories, including
the Isle of Man.

The Island's parliament, the Court of Tynwald, is one of the oldest in
Europe.  It consists of a Lieutenant-Governor appointed by and
representing the Crown, an Upper House (the Legislative Council) and a
Lower House (the House of Keys).  Tynwald legislates in domestic
matters, the laws it adopts requiring ratification by the Queen in
Council; the Home Secretary is responsible for advising the Privy
Council whether or not to recommend that the Royal Assent be given.

In strict law, the United Kingdom Parliament has full power to pass
laws applicable to the Isle of Man but, by constitutional convention,
does not in the ordinary course legislate on the Island's domestic
affairs, such as penal policy, without its consent.  This convention
would be followed unless it were overridden by some other
consideration, an example of which would be an international treaty
obligation.

14.  Judicial corporal punishment of adults and juveniles was
abolished in England, Wales and Scotland in 1948 and in Northern
Ireland in 1968.  That abolition followed upon the recommendations of
the Departmental Committee on Corporal Punishment (known as the
Cadogan Committee) which issued its report in 1938.  The standing
Advisory Council on the Treatment of Offenders, in its report of 1960
(known as the Barry report), endorsed the findings of the Cadogan
Committee and concluded that corporal punishment should not be
reintroduced as a judicial penalty in respect of any categories of
offencers or of offenders.

15.  The punishment remained in existence in the Isle of Man.  When
Tynwald examined the question in 1963 and 1965, it decided to retain
judicial corporal punishment, which was considered a deterrent to
hooligans visiting the Island as tourists and, more generally, a means
of preserving law and order.

In May 1977, by thirty-one votes for and only one against, Tynwald
passed a resolution, inter alia,

"that the retention of the use of judicial corporal punishment for
crimes of violence to the person is a desirable safeguard in the
control of law and order in this Island and Tynwald hereby re-affirms
its policy to retain the use of judicial corporal punishment for
violent crimes to the person committed by males under the age of 21".

At the hearing on 17 January 1978, the Attorney-General for the Isle
of Man informed the Court that recently a privately organised petition
in favour of the retention of judicial corporal punishment had
obtained 31,000 signatures from amongst the approximate total of
45,000 persons entitled to vote on the Island.

16.  While under various provisions judicial corporal punishment could
be imposed on males for a number of offences, since 1969 its
application has apparently been restricted in practice to offences of
violence.

During his address to the Court, the Attorney-General for the Isle of
Man indicated that the Manx legislature would shortly be considering
the Criminal Law Bill 1978 which contained a proposal to limit the use
of judicial corporal punishment to young males for certain specified
offences only, on the whole the more serious offences of violence.
The offence with which the applicant was charged had been omitted from
the specified list of offences.

17.  The name and address of a juvenile sentenced in the Isle of Man,
whether to corporal punishment or otherwise, are not published.

18.  According to figures cited before the Court by the Attorney-
General for the Isle of Man, judicial corporal punishment was
inflicted in 2 cases in 1966, in 4 cases in 1967, in 1 case in 1968,
in 7 cases in 1969, in 3 cases in 1970, in 0 cases in 1971, in 4 cases
in 1972, in 0 cases in 1973, in 2 cases in 1974, in 1 case in 1975, in
1 case in 1976 and in 0 cases in 1977.  The average number of crimes
of violence to the person per annum was: between 1966 and 1968 - 35;
between 1969 and 1971 - 52; between 1972 and 1974 - 59; and between
1975 and 1977 - 56.  In 1975 there were 65 crimes of violence to the
person, in 1976 58 and in 1977 approximately 46.

In the three years 1975 to 1977, only one young male was convicted of
a crime of violence.

At the 1976 census, the Island's population stood at 60,496.

PROCEEDINGS BEFORE THE COMMISSION

19.  In his application, lodged with the Commission on
21 September 1972, Mr. Tyrer complained, in particular, that:

- his judicial corporal punishment constituted a breach of Article 3
(art. 3) of the Convention;

- such punishment was destructive of family well-being and therefore
contrary to Article 8 (art. 8) of the Convention;

- no remedies existed to rectify the violation, which was inconsistent
with Article 13 (art. 13) of the Convention;

- the punishment was discriminatory within the meaning of Article 14
(art. 14) of the Convention in that it was primarily pronounced on
persons from financially and socially deprived homes;

- the violation of Article 3 (art. 3) also constituted a violation of
Article 1 (art. 1) of the Convention.

The applicant also claimed damages as well as repeal of the
legislation concerned.

20.  In its decision of 19 July 1974, the Commission, having
considered ex officio that the facts of the case raised issues of
discrimination on grounds of sex and/or age contrary to Article 14
of the Convention, taken together with Article 3 (art. 14+3):

- decided not to proceed further with an examination of the original
complaint under Article 14 (art. 14) which the applicant had subsequently
withdrawn;

- declared admissible and retained those parts of the application
which raised issues under Article 3 (art. 3), either alone or in
conjunction with Article 14 (art. 14+3);

- declared inadmissible the remainder of the application.

21.  In January 1976, the Commission was notified that the applicant
wished to withdraw his application.  However, on 9 March 1976, the
Commission decided that it could not accede to this request "since the
case raised questions of a general character affecting the observance
of the Convention which necessitated a further examination of the
issues involved".  The applicant took no further part in the
proceedings.

22.  In its report of 14 December 1976, the Commission expressed the
opinion:

- by fourteen votes to one, that the judicial corporal punishment
inflicted on the applicant was degrading and was in breach of
Article 3 (art. 3) of the Convention;

- that it was not necessary, in view of the preceding conclusion, to
pursue an examination of the issue under Article 14 (art. 14)
of the Convention;

- as regards Article 63 para. 3 (art. 63-3) of the Convention, that there
were not any significant social or cultural differences between the
Isle of Man and the United Kingdom which could be relevant to the
application of Article 3 (art. 3) in the present case.

The report contains one separate opinion.

AS TO THE LAW

I. PRELIMINARY QUESTIONS

A. The Court's jurisdiction

23.  During the hearing of 17 January 1978, reference was made to the
fact that the declaration by the Government recognising the
jurisdiction of the Court as compulsory in respect of the Isle of Man
expired on 13 January 1976, whereas the case was brought before the
Court by the Commission on 11 March 1977.

In its request to the Court, the Commission indicated that it had had
regard to the various renewals of the said declaration and
particularly the renewal dated 21 April 1972 which was in force at the
time of the introduction of the application before the Commission.
For their part, the Government, which had not filed any preliminary
objection pursuant to Rule 46 of the Rules of Court, stated at the
hearing that they consented to the Court having jurisdiction in
accordance with Article 48 (art. 48), although it was not to be
inferred that they necessarily agreed with the reasoning in the
Commission's request.

The Court finds that in these circumstances its jurisdiction is
established.

B. The request to strike the case out of the Court's list

24.  The Attorney-General for the Isle of Man first submitted that the
Court should strike the case out of its list in view of the fact that
Mr. Tyrer, who had lodged his application with the Commission when he
was under age, had declared, after he had attained full age, that he
wished to withdraw it.

On 9 March 1976, the Commission had decided, pursuant to the then
Rule 43 of its Rules of Procedure, that it could not accede to the
applicant's request since the case raised questions of a general
character affecting the observance of the Convention which
necessitated a further examination of the issues involved (see
paragraph 21 above).  Before the Court, the principal delegate
submitted that the applicant's wishes must be subordinated to the
general interest to ensure respect for human rights as defined in the
Convention.  He added that the Commission had never examined the
reasons for, and circumstances surrounding, the applicant's request.

The Attorney-General for the Isle of Man conceded that, under its
Rules of Procedure, the Commission was entitled to refuse, on the
grounds mentioned above, to allow Mr. Tyrer to withdraw.  He did not
suggest that there had been any irregularity in the Commission's
decision; he merely contended that in the particular circumstances the
applicant's wishes should supersede the general character of the case
and that therefore the Court should consider striking the case out of
its list under Rule 47 of its Rules.

25.  The regularity of the Commission's decision to continue its
examination of the application is not in issue and the Court has only
to decide whether or not the case should be struck out.

Paragraph 1 of Rule 47 is not applicable in the circumstances.
Firstly, when Mr. Tyrer declared that he wished to withdraw his
application the case was still pending before the Commission.
Secondly that declaration, coming from an individual who is not
entitled under the Convention to refer cases to the Court, cannot
entail the effects of a discontinuance of the present proceedings
(De Becker judgment of 27 March 1962, Series A no. 4, p. 23, para. 4).
Above all, paragraph 1 covers solely discontinuance by "a Party which
has brought the case before the Court", that is to say by an Applicant
Contracting State in proceedings before the Court (paragraph (h) of
Rule 1; Kjeldsen, Busk Madsen and Pedersen judgment of
7 December 1976, Series A no. 23, p. 21, para. 47).

Paragraph 2 of Rule 47 provides that the Court may, subject to
paragraph 3, strike out of its list a case brought before it by the
Commission but only when the Court "is informed of a friendly
settlement, arrangement or other fact of a kind to provide a solution
of the matter".  As mentioned above, the Commission never examined the
circumstances surrounding the applicant's request and the Court has
been supplied with no further information regarding those
circumstances.  Thus, the Court has received no indication that
Mr. Tyrer's declaration of withdrawal is a fact of a kind to provide a
solution of the matter.

26.  The Attorney-General for the Isle of Man further submitted that
the Court should strike the case out of its list when the Island's
legislature had adopted the proposal to abolish corporal punishment as
a penalty for, inter alia, the offence of assault occasioning actual
bodily harm of which the applicant had been convicted (see
paragraph 16 above).  The principal delegate emphasised that nothing
short of total abolition of judicial corporal punishment would, in the
view of the Commission, be acceptable as a "fact of a kind to provide
a solution of the matter" in the context of Rule 47 (2).

The Court does not consider that the legislation envisaged can be
regarded as such a fact.  There is no certainty as to whether and when
the proposal will become law and, even if adopted, it cannot erase a
punishment already inflicted.  What is more, the proposed legislation
does not go to the substance of the issue before the Court, namely
whether judicial corporal punishment as inflicted on the applicant in
accordance with Manx legislation is contrary to the Convention.

27.  Accordingly, the Court decides not to strike the case out of its
list on either of the grounds advanced.

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
which provides:

"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."

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.  As regards the manner and method of execution of the birching
inflicted on Mr. Tyrer, the Attorney-General for the Isle of Man drew
particular attention to the fact that the punishment was carried out
in private and without publication of the name of the offender.

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.

III. ON ARTICLE 63 (art. 63)

36.  The Court must now consider whether its above conclusion is
affected by certain arguments advanced under Article 63
of the Convention, paragraphs 1 and 3 whereof (art. 63-1,
art. 63-3) read as follows:

"1.  Any State may at the time of its ratification or at any time
thereafter declare by notification addressed to the Secretary-General
of the Council of Europe that the present Convention shall extend to
all or any of the territories for whose international relations it is
responsible.

 ...

3.  The provisions of this Convention shall be applied in such
territories with due regard, however, to local requirements."

37.  In respect of Article 63 (3) (art. 63-3), the Attorney-General
for the Isle of Man submitted to the Court:

"firstly that judicial corporal punishment as practised in the Isle of
Man in the case of the applicant is not a degrading punishment and
that the United Kingdom is not in breach of the Convention by virtue
of Article 63 (3) (art. 63-3); secondly ... that, having due regard to
the local circumstances in the Island ... the continued use of judicial
corporal punishment on a limited scale is justified as a deterrent and
consequently the United Kingdom would not be in breach of the
Convention."

The Attorney-General relied in particular on the state of opinion in
the Island and referred, inter alia, to a recent debate in the Manx
legislature and a recent petition both of which had indicated that
there was a large majority in favour of retention of judicial corporal
punishment in specified circumstances (see paragraph 15 above).
That majority, he said, not only did not consider this penalty to be
degrading but also saw it as an effective deterrent and as a desirable
safeguard in the control of law and order.  He also cited statistics
in support of these views (see paragraph 18 above).

The principal delegate of the Commission submitted, as regards local
conditions in the Isle of Man, that it was difficult to conceive that
any local characteristics could be put forward to justify a breach of
Article 3 (art. 3).  He pointed out that no specific local conditions
had been pleaded save the belief of many people in the Isle of Man
that judicial corporal punishment is an effective deterrent and added
that, even assuming that such a belief could constitute a local
condition, the Commission did not consider that if affected its
conclusion of a violation of Article 3 (art. 3).  Finally, he stated
that the Commission's view that there were no significant social or
cultural differences between the Isle of Man and the United Kingdom
which could be relevant to the application of Article 3 (art. 3) in
this case amounted to saying that Article 63 (3) (art. 63-3) in fact
cannot be called in aid as regards territories with such close ties
and affinities as in the case of the Isle of Man and the United
Kingdom.

38.  The question therefore is to decide whether there are in the Isle
of Man local requirements within the meaning of Article 63 (3)
(art. 63-3) such that the penalty in question, in spite of its
degrading character (see paragraph 35 above), does not entail a breach
of Article 3 (art. 3).

The Court notes firstly that the Attorney-General for the Isle of Man
spoke more of circumstances and conditions than of requirements in the
Island.  The undoubtedly sincere beliefs on the part of members of the
local population afford some indication that judicial corporal
punishment is considered necessary in the Isle of Man as a deterrent
and to maintain law and order.  However, for the application of
Article 63 (3) (art. 63-3), more would be needed: there would have to
be positive and conclusive proof of a requirement and the Court could
not regard beliefs and local public opinion on their own as
constituting such proof.

Moreover, even assuming that judicial corporal punishment did possess
those advantages which are attributed to it by local public opinion,
there is no evidence before the Court to show that law and order in
the Isle of Man could not be maintained without recourse to that
punishment.  In this connection, it is noteworthy that, in the great
majority of the member States of the Council of Europe, judicial
corporal punishment is not, it appears, used and, indeed, in some of
them, has never existed in modern times; in the Isle of Man itself, as
already mentioned, the relevant legislation has been under review for
many years.  If nothing else, this casts doubt on whether the
availability of this penalty is a requirement for the maintenance of
law and order in a European country.  The Isle of Man not only enjoys
long-established and highly-developed political, social and cultural
traditions but is an up-to-date society.  Historically, geographically
and culturally, the Island has always been included in the European
family of nations and must be regarded as sharing fully that "common
heritage of political traditions, ideals, freedom and the rule of law"
to which the Preamble to the Convention refers.  The Court notes, in
this connection, that the system established by Article 63 (art. 63)
was primarily designed to meet the fact that, when the Convention was
drafted, there were still certain colonial territories whose state of
civilisation did not, it was thought, permit the full application of
the Convention.

Finally and above all, even if law and order in the Isle of Man could
not be maintained without recourse to judicial corporal punishment,
this would not render its use compatible with the Convention.  As the
Court has already recalled, the prohibition contained in Article 3
(art. 3) is absolute and, under Article 15 (2) (art. 15-2), the
Contracting States may not derogate from Article 3 (art. 3) even in
the event of war or other public emergency threatening the life of the
nation.  Likewise, in the Court's view, no local requirement relative
to the maintenance of law and order would entitle any of those States,
under Article 63 (art. 63), to make use of a punishment contrary to
Article 3 (art. 3).

39.  For these reasons, the Court finds that there are no local
requirements affecting the application of Article 3 (art. 3) in the
Isle of Man and, accordingly, that the applicant's judicial corporal
punishment constituted a violation of that Article.

40.  In view of its above conclusion, the Court does not consider it
necessary to examine, in connection with Article 63 (1) (art. 63-1),
the question of the constitutional status of the Isle of Man in
relation to the United Kingdom.

IV. ON ARTICLE 14 (art. 14)

41.  Article 14 (art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status."

42.  In its decision of 19 July 1974, the Commission, having
considered ex officio that the facts of the case involved questions of
discrimination on grounds of sex and/or age, declared admissible and
retained those parts of the application which raised issues under
Article 3 in conjunction with Article 14 (art. 14+3).  However,
in its report of 14 December 1976 the Commission concluded
that it was not necessary to pursue an examination of this question:
it was sufficient that the Commission had concluded that there was a
violation of Article 3 (art. 3) in this case and that, therefore,
judicial corporal punishment should not have been applied to anybody.
Moreover, the Commission did not advert to the matter either in its
request of 11 March 1977 to the Court or at the oral hearing.  The
Government also addressed no argument to the Court on this issue.

43.  The Court notes the position taken by those appearing before it.
In the circumstances of the case, the Court does not consider that it
is necessary for it to examine this question ex officio.

V. ON ARTICLE 50 (art. 50)

44.  Article 50 (art. 50) of the Convention 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 present 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."

45.  In his application to the Commission, Mr. Tyrer had claimed
damages.  However, at the hearing on 17 January 1978, the principal
delegate remarked that, because there was no longer an applicant
associated with the case, no issue under Article 50 (art. 50)
could, in the Commission's opinion, arise.

The Court regards this question as ready for decision.  It shares the
view of the Commission and accordingly considers that it is not
necessary to apply Article 50 (art. 50) in the present case.

FOR THESE REASONS, THE COURT

1. decides unanimously not to strike the case out of its list;

2. holds by six votes to one that the judicial corporal punishment
inflicted on Mr. Tyrer amounted to degrading punishment within the
meaning of Article 3 (art. 3);

3. holds unanimously that in the present case there are no local
requirements within the meaning of Article 63 para. 3 (art. 63-3)
which could affect the application of Article 3 (art. 3);

4. holds by six votes to one that the said punishment accordingly
violated Article 3 (art. 3);

5. holds unanimously that it is not necessary to examine the question
of a possible violation of Article 3 taken together with
Article 14 (art. 14+3);

6. holds unanimously that it is not necessary to apply Article 50
(art. 50) in the present case.

Done in English and French, the English text being authentic, at the
Human Rights Building, Strasbourg, this twenty-fifth day of April, one
thousand nine hundred and seventy-eight.

Signed: Giorgio Balladore Pallieri
        President

On behalf of the Registrar
Signed: Herbert Petzold
        Deputy Registrar

Judge Sir Gerald Fitzmaurice has annexed his separate opinion to the
present judgment in accordance with Article 51 para. 2 (art. 51-2)
of the Convention and Rule 50 para. 2 of the Rules of Court.

Initialled: G. B. P.

Initialled: H. P.

SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

1.  To my regret, I feel obliged to dissent from the view taken by the
Court on what is the main issue in this case, namely whether the
punishment inflicted on Mr. Tyrer - he being then a schoolboy -
amounted to a "degrading" punishment contrary to Article 3
(art. 3) of the European Human Rights Convention.  However, I can at
least address myself exclusively to that matter since, while not
necessarily agreeing in toto on every other question - in particular
that of paragraph 3 of Article 63 (art. 63-3) (due regard to be paid
to local requirements in the case of non-metropolitan territories) - I
did not feel called upon actually to vote against the conclusions
reached by the Court on points not directly arising on Article 3
(art. 3).  Moreover, in view of the fact that the Court has found
(correctly in my opinion) that Mr. Tyrer's punishment did not amount
either to torture or to inhuman treatment, I need not deal with those
matters except in so far as, in a general way, they are relevant to
what I want to say on the third component of Article 3 (art. 3)
- degrading treatment or punishment.  The more specific aspects of
torture and inhuman treatment I considered in some detail in the
recent case of Ireland v. the United Kingdom (Judgment of
18 January 1978), which I shall hereafter refer to as the "Irish
case".

2.  Before I go any further, however, I want to make it clear that my
attitude to the present case is governed by the fact that the
punishment complained of was administered to a juvenile.  Just as in
the recent Handyside ("Little Red Schoolbook") case (1) the key
element involved was that sex literature which would have been more or
less innocuous if disseminated amongst adults was specifically
intended for and circulated to juveniles of school age, - so in my
view does the key to the present case lie in the infliction of the
punishment - not on an adult, but on a juvenile.

_______________
(1) Judgment of 7 December 1976.
_______________

3.  As regards torture and inhuman treatment, further reflection on
the Irish case has led me to doubt whether it is either practicable or
right to regard these notions - (and the same would apply to those of
degrading treatment or punishment) - as having the absolute and
monolithic character which, on a literal reading of Article 3
(art. 3), they appear to have - as the Court has held in both the
Irish and the present case, and as I admitted in paragraph 14 of my
Separate Opinion in the former case.  As I there stated, it is easy to
see why those who drew up the Convention proceeded in this manner: not
only would an appropriate definition have been as difficult to frame
as in the celebrated case of the definition of aggression, but also
any attempted definition (as equally in the latter case) would almost
inevitably have tended to suggest the means for its own evasion.  But
this in no way denotes that because the function of interpreting and
applying these notions is, in consequence, perforce left to judicial
determination, the tribunal invested with that function can take
refuge in a literal interpretation of the words of the Article without
regard to the special circumstances of the concrete case.  Indeed it
is precisely because of the difficulty of arriving at any definition
that will take account in advance of all the possibilities which may
occur, that the obligation to do so in the particular case falls upon
the tribunal.  This the Court has recognised up to a point by applying
the test of the degree of severity that the impugned treatment
involves; but that is far from being the only factor that may be
relevant, and even in applying that test, the tribunal must consider
such aspects as the age, general health, bodily characteristics and
current physical and mental condition of the person concerned, or
other actual features of the case, any one of which may either
increase or diminish the intensity of the effect produced.

4.  Nor is it only under these heads that some gloss has to be put
upon the absolute character of the literal terms of Article 3
(art. 3).  Thus it is to be noted that these, in speaking of
"punishment", do so only in connection with the expressions "inhuman"
and "degrading", not in connection with "torture".  Apart from the
grammatical difficulties of using the latter term as an adjective, the
reason clearly is that torture is as often, if not more often,
inflicted for other purposes - such as intimidation, compulsion,
extraction of information, etc. - as for purposes of punishment - (in
the case of the inhuman or the degrading these other purposes are met
by the use of the word "treatment" as well as "punishment", but
neither term is employed in connection with the expression "torture").
Hence, if Article 3 (art. 3) is interpreted literally, any infliction
of pain severe enough in degree to amount to torture would involve a
breach of that provision whatever the circumstances in which it had
occurred, - for instance, the case of an army surgeon who amputates a
leg on the battlefield under emergency conditions and without an
anaesthetic.  In all such cases (and others can easily be thought of -
see footnote (2), the "victim" is, according to the ipsissima verba of
Article 3 (art. 3), "subjected to torture" which the Article states
that "No one may be" - ever, even if in certain instances, or up to a
point, the subjection is voluntarily accepted.

_______________
(2) For example:

the member of a rescue party who has to inflict agonising pain in
order to release a trapped limb;

the monk who endures severe flagellation at the hands of his superiors
as a religious or claustral penance or discipline;

the infliction of severe mental torture by the withholding of news the
premature communication of which might be prejudicial to success;

the dentist who cannot give a pain-killing injection because of the
patient's allergy to it.
_______________

5.  Cases of this kind also show that the gloss that has to be placed
upon the literal effect of the Article relates not only to what
constitutes or amounts to torture, etc., but to what may in certain
circumstances justify its infliction, such as encompassing the greater
good of saving the life of the recipient; - or, in certain types of
cases, the saving of a great many other lives.  This last matter is
one of much difficulty and delicacy on which it is all too easy to go
wrong.  I touched upon it in the third paragraph of footnote 19 in my
Separate Opinion in the Irish case (see paragraph 1 supra), and will
not enlarge upon it here since questions of torture or other kinds of
inhuman treatment are not directly involved in the present case - (or
at any rate the Judgment of the Court, with which I agree on these
points, excludes them).

                      °                   °

                                  °

6.  What is at present involved is the question of degrading treatment
or punishment, the principle of which I considered in some detail in
paragraphs 27-29 of my Separate Opinion in the Irish case.  But here
too it is obviously not possible to apply the language of Article 3
(art. 3) literally.  If, as now, the case is one of punishment, it is
obvious that all punishment is degrading, at least if it involves
imprisonment and the (mostly unpleasant and often humiliating)
incidents of prison life and discipline.  To amount to an infringement
of Article 3 (art. 3) therefore, the punishment in question must
entail a degree of degradation recognisably greater than that
inherently bound-up with any normal punishment that takes the form of
coercion or deprivation of liberty, - or else it must be accompanied
by circumstances of degradation greater than what are necessary for
the carrying-out of the punishment according to its due and intended
effect.  This has been expressly recognised by the Court in the
passage figuring at the last section of paragraph 30 of the Judgment,
which contains a statement of the relevant principle - one in which I
fully concur.

7.  The Court, however, then goes on to hold that what the passage I
have just referred to calls the "level" of "humiliation or debasement
involved" was in fact attained in the punishment inflicted on
Mr. Tyrer when he was a boy, - and it is this conclusion with which I
respectfully disagree - in part because, as I shall show presently, it
is not in fact - (though it purports to be) - related to the actual
circumstances of the punishment, but amounts to a finding that all
corporal punishment, in all circumstances, inherently involves, as
such, an unacceptable level of degradation.  In this the Court seems
to me to depart from its own criterion, stated in the passage
concerned to be that the assessment of the element of degradation is
"relative" and "depends on all the circumstances of the case, and in
particular the nature and context of the punishment itself and the
manner and method of its execution".  After drawing attention to the
fact (though it does not consider it conclusive) that the punishment
was administered in private, the Judgment next proceeds, if I have
understood it correctly, to concede, in effect, that (subject to the
basic question of the whole nature of corporal punishment) the methods
and requirements prescribed by Isle of Man law for carrying-out such a
punishment did provide for "certain safeguards", - and it is evident
from the facts of the case that these safeguards were duly adhered to
in the Tyrer case.  The passages in question in the Judgment (last
section of paragraph 32 and first of paragraph 33) read as follows: -

"The Court notes that the relevant Isle of Man legislation, as well as
giving the offender a right to appeal against [the] 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."

The Judgment continues (paragraph 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)." (3)

_______________
(3) "... within the meaning of Article 3 (art. 3)".  I drew attention in
paragraph 12 of my Separate Opinion in the Irish case to the fact that
since Article 3 (art. 3) of the Convention does not define or explain
in any way the terms it contains ("torture or ... inhuman or degrading
treatment or punishment"), an expression such as "within the meaning
of Article 3 (art. 3)" lacks all significance, as the Article ascribes no
meaning to these terms.  Any meaning to be given to them must come
from outside.  In these circumstances, it is the Court itself that has
to impart a meaning.  This is perfectly acceptable - indeed
inevitable.  But then it should not be implied that the meaning thus
imparted is to be found in Article 3 (art. 3) itself, for it is not.  A more
correct description would be "contrary to" or "according to the
presumed intention of" Article 3 (art. 3).
_______________

8.  The "Nevertheless" at the start of this last passage shows that
the Court considered the circumstances of the administering of the
punishment as not in themselves calling for criticism, and had to look
at "the other circumstances of the ... punishment" to see whether it was
"degrading".  But when the Judgment goes on to do that, it becomes
perfectly plain that, for all practical purposes, it is not "the other
circumstances of the punishment" at all, but the punishment itself,
and as such, that the Court regards as degrading.  This appears, but
appears sufficiently, from only two sentences in the second section of
paragraph 33, reading respectively:

"The very nature of judicial corporal punishment is that it involves
one human being inflicting physical violence on another human being."

and

"... 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."

These are tautologies that do not advance matters (4) and defeat their
own ends, since they beg the question at issue, which is not whether
the punishment was physically violent or was inflicted compulsorily,
or even involved loss of dignity (as most punishment does), but was in
the actual circumstances "degrading", and degrading to a degree which
- to use the Court's own language - took it to a level above that
"usual ... element of humiliation or degradation" which is an "almost
inevitable element" of "judicial punishment generally" - (Judgment,
paragraph 30, passim).  It is only this kind of degradation of which
it can properly be said to be "one of the main purposes of Article 3
(art. 3)" to condemn - or protect against - and mere affirmations that
such is the case cannot of themselves carry conviction.  What they do
show is that, in the opinion of the Court, it is the fact of the
punishment being corporal which makes it peccant, - and this is
irrespective of such an obviously relevant circumstance as that it was
administered to a juvenile not an adult.  In short, it is the
"corporality" of the punishment which is regarded as automatically
causing it to stand at an unacceptable level of the degrading.  I am
unable to agree with this view of the matter which, for reasons of
somewhat the same order as those that I gave in the Irish case
(particularly in my paragraphs 22-36), seems to be exaggerated and out
of proportion.  But before I indicate more specifically my grounds for
not regarding the punishment administered in the present case as
amounting in the circumstances to a "degrading" one - or at the least
as not involving the level of degradation necessary to constitute a
breach of Article 3 (art. 3) - I must consider what were the "other"
circumstances which the Court seems to have had in mind in the last of
the passages I have quoted in paragraph 7 above.

_______________
(4) Perhaps "truisms" would be a more accurate description, - for surely
any prisoner is, by definition, "in the power" of the authorities, -
while it goes without saying that judicial corporal punishment
involves the infliction of physical violence by one person on another:
even science fiction has not yet pictured a world in which it is
inflicted by machines.  Again, it goes without saying that if a thug
attacks someone in a dark passage, there is certainly "an assault on"
the victim's "physical integrity", and this may lower his dignity; but
is he necessarily "degraded" or "debased" thereby?  Clearly the mere
fact of an assault, to which the victim is subjected unwillingly,
cannot in and of itself suffice.
_______________

9.  The "other" circumstances (Judgment, paragraph 33 et seq.) - I
have noted the following:

(i) In paragraph 33, much stress is placed on the fact that the
"violence" was "institutionalised", i.e. "permitted by law" (5) and
"carried out by the police authorities".  For my part, I cannot see
the relevance of this criterion, i.e. that the punishment was
degrading because "institutionalised", or more degrading on that
account that if it had not been. (5a)  To be "institutionalised" is,
in an ordered society, inseparable from any punishment for crime,
since non-institutionalised punishment, except such as the law
tolerates, must be illegal.  Therefore I do not follow (and it is not
explained) why institutionalised violence must necessarily be
degrading, if non-institutionalised is not, or be more degrading than
the latter.  Indeed, it is not at all clear what form of
non-institutionalised violence the Court had in mind which, by
comparison, would not be regarded as degrading to the recipient.
Possibly it was desired to imply (though this is not stated) that, for
instance, a beating administered by a parent to a child would not
degrade the latter, - whereas a "judicial" one would.  I do not
believe in these subtleties.  In my view neither punishment (so long as
administered in private) can be considered as inherently degrading
where a juvenile is concerned, unless other factors over and above the
beating as such are involved.  The State is, in a certain sense, in
loco parentis in such a situation.

_______________
(5), (5a) Clearly the Court could not have meant to
imply that the punishment would have been in order if not permitted by
law!  But it probably did mean to imply that, whereas it thought all
judicial corporal punishments were degrading, there might be some
non-judicial ones (e.g. parent to child) that were not.
_______________

(ii) Next (third section of paragraph 33), the alleged effect of the
institutionalisation is said to be "compounded" by "the whole aura of
official procedure attending the punishment" - (but how could the
procedure not be official if there was institutionalisation? - the one
is, or entails, the other) - and also compounded "by the fact that
those inflicting [the punishment] were total strangers to the
offender".  As to this last objection, leaving aside the question
whether, in the restricted community of Castletown, Isle of Man, the
police officers concerned were "total strangers" to the boy, I for my
part fail to see how it can be any more degrading to be beaten by
strangers than non-strangers.  Many would, I believe, think it
less so. (6)

_______________
(6) Here again, the contrast the Court is perhaps seeking to make
(though it is not stated) is between a beating that takes place within
the family and one that is administered outside it.  This is purely
speculative.  Many boys would mind the one as much as, or more than,
the other.
_______________

(iii) Then - a further "other" circumstance - it is stated at the end
of the second section of paragraph 33, as something not to be
"excluded", that "the punishment may have had adverse psychological
effects".  This seems to be pure surmise, as I have not been able to
discover any evidence of it whatever.  But in any case it would be
totally irrelevant to the question of the alleged degrading nature of
the punishment.  It is a point that could go only to the question of
inhumanity.  If psychological effects could be established, and if
these were appreciable and more than merely temporary, there might be
a case for calling the punishment "inhuman", but none of this would
have the slightest bearing on the question of degradation or
debasement.

(iv) Exactly the same considerations apply (last section of
paragraph 33) to the circumstance that there was rather a long period
of delay in carrying out the punishment, after the original passing of
sentence.  Most of this delay was due to the fact that there was an
appeal against the sentence which was not finally heard for some five
weeks.  However, the Judgment says that

"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."

During the period when the appeal was still outstanding, therefore,
any mental anguish caused by the delay resulted from Mr. Tyrer's own
act, and probably would have been more than compensated for by the
hope that the appeal would succeed.  Hence, this pronouncement on the
part of the Court could in any case only apply in respect of the
period of a few hours that elapsed between the dismissal of the appeal
in the morning, and the carrying-out of the sentence the same
afternoon - a loss of time due exclusively to delays in securing the
presence of a doctor, - a requirement entirely in the boy's own
interests.  But be these matters as they may, the whole question of
delay, whatever the cause, is one that could go only to the issue of
inhumanity.  To have to undergo a prolonged wait for a sentence of
this kind to be carried out may well cause mental anguish and, if this
was deliberately caused - (but evidently in the present case it was
not) - might constitute inhuman treatment, - but it clearly has no
bearing whatever on the question of the degrading character or
otherwise of the punishment itself.

(v) Finally, in respect of "other" circumstances, the Judgment
(paragraph 35) adverts to the fact that the punishment was
administered on the bare posterior instead of over the boy's ordinary
clothing.  That this was permitted by Isle of Man law in the case of a
juvenile of his age does not of course alter its relevance to the
question of whether the punishment, as actually carried out, was
degrading or not.  However, what the Judgment states about it is

"The indignity of having the punishment administered over the bare
posterior aggravated to some extent [its] degrading character ...
but it was not the only or determining factor."

Clearly therefore the Court regarded this circumstance only as an
aggravating one, and this only to "some extent", and not as
determining.  It follows that the Court would have found the
punishment to be degrading even if this particular element had been
otherwise.

10.  This brings me back to the conclusion I had suggested in
paragraph 8 above - and which constitutes one of the basic causes of
my dissent over the Judgment - namely that it is the fact of corporal
punishment as such, irrespective of the circumstances, which, in the
Court's view, is degrading, - so that no circumstances could make it
otherwise.  Those cited in the Judgment turn out, when analysed, to
fall into one of three categories: either (institutionalisation,
presence of strangers, etc.) their existence causes no more
degradation, if any, than would result from their absence; or else,
though possibly relevant to the question of inhuman treatment, they
have no bearing on that of degradation; or finally, they are merely
aggravating and not determinant.

11.  I must now state why I cannot accept the view which I have
described in the preceding paragraph above.  Modern opinion has come
to regard corporal punishment as an undesirable form of punishment;
and this, whatever the age of the offender.  But the fact that a
certain form of punishment is an undesirable form of punishment does
not automatically turn it into a degrading one.  A punishment may well
have an undesirable character without being in the least degrading
- or at any rate not more so than punishment in general is.  And
hitherto, whatever may have been felt about corporal punishment from
such standpoints as whether it really deters, whether it may not have
a brutalising effect, whether it harms the psyche of those who carry
it out, etc., it has not been generally regarded as degrading when
applied to juveniles and young offenders, in the same way as it is
considered so to be in the case of adults.  In that respect, the two
things have never been regarded as being quite of the same order (7),
or as being on the same plane.  This last is the real point, - for to
put it in terms of the criterion adopted by the Court, and assuming
that corporal punishment does involve some degree of degradation, it
has never been seen as doing so for a juvenile to anything approaching
the same manner or extent as for an adult (8).  Put in terms of the
Convention and of the Court's criterion, therefore, such punishment
does not, in the case of a juvenile, attain the level of degradation
needed to constitute it a breach of Article 3 (art. 3), unless of
course seriously aggravating circumstances are present over and above
the simple fact of the corporal character of the punishment.  This is
why I could have understood it if the Court had regarded the
infliction of the blows on the bare posterior as bringing matters up
to the required level of degradation.  I would not necessarily have
agreed with that view, but it would have been tenable.  However, the
Court held that this was not a determining element: the punishment was
in any event degrading.  This means, in effect, that any judicial
corporal punishment meted out to a juvenile is degrading and a breach
of Article 3 (art. 3).  It is this view (in my opinion far too
dogmatic and sweeping) that I cannot agree with.  That such
punishments may be undesirable and ought perhaps to be abolished is,
as I have said, quite another matter: they are not ipso facto
degrading on that account in the case of juvenile offenders.

_______________
(7) It is really not too much to say that throughout
the ages and under all skies, corporal methods have been seen as the
obvious and natural way of dealing with juvenile misbehaviour.

(8) Perhaps only a psychologist could explain this, - but
it seems to be an extension of the attitude that does not consider
young persons as susceptible of offence in the same manner or degree
as adults, so that a measure of freedom of speech or action is felt to
be permissible in the one case that would not be in the other.  People
would not call a grown man "Sonny" or pat him on the head as they
would a child or youth, and without causing any resentment.  Most
people indeed would regard it as rather an absurd notion that even
more serious inroads than these on "dignity" and "physical integrity"
could, in the case of a juvenile, be thought of as degrading.
_______________

12.  I have to admit that my own view may be coloured by the fact that
I was brought up and educated under a system according to which the
corporal punishment of schoolboys (sometimes at the hands of the
senior ones - prefects or monitors - sometimes by masters) was
regarded as the normal sanction for serious misbehaviour, and even
sometimes for what was much less serious.  Generally speaking, and
subject to circumstances, it was often considered by the boy himself
as preferable to probable alternative punishments such as being kept
in on a fine summer's evening to copy out 500 lines or learn several
pages of Shakespeare or Virgil by heart, or be denied leave of absence
on a holiday occasion.  Moreover, these beatings were carried out
without any of the safeguards attendant on Mr. Tyrer's: no parents,
nurses or doctors were ever present.  They also not infrequently took
place under conditions of far greater intrinsic humiliation than in
his case.  Yet I cannot remember that any boy felt degraded or
debased.  Such an idea would have been thought rather ridiculous.  The
system was the same for all until they attained a certain seniority.
If a boy minded, and resolved not to repeat the offence that had
resulted in a beating, this was simply because it had hurt, not
because he felt degraded by it or was so regarded by his fellows:
indeed, such is the natural perversity of the young of the human
species that these occasions were often seen as matters of pride and
congratulation, - not unlike the way in which members of the student
corps in the old German universities regarded their duelling scars as
honourable - (though of course that was, in other respects, quite a
different case).

13.  In conclusion, I must insist that I am not seeking to maintain
that the state of affairs I have just described was necessarily a good
one, though it had, and has, many supporters.  I am not advocating
corporal punishment.  I am simply saying that it is not degrading for
juvenile offenders - or (to such extent as it is), does not, in their
case, involve the level of degradation required to constitute it a
breach of Article 3 (art. 3) of the European Human Rights Convention,
when inflicted under proper restrictions and safeguards in consequence
of a regularly pronounced judicial sentence, traditionally sanctioned
for certain offences by the law of the community to which the offender
belongs, and by its public opinion.  No juvenile is or need feel
"degraded" under those conditions.

14.  Finally, I would like to advert to the remarks I made in
paragraphs 15 and 16 of my Separate Opinion in the Irish case (see
paragraph 1 supra) which, mutatis mutandis, are equally applicable to
the question of degrading treatment or punishment.  The fact that a
certain practice is felt to be distasteful, undesirable, or morally
wrong and such as ought not to be allowed to continue, is not a
sufficient ground in itself for holding it to be contrary to
Article 3 (art. 3).  Still less is the fact that the Article fails to
provide against types of treatment or punishment which, though they
may legitimately be disapproved of, cannot, considered objectively and
in relation to all the circumstances involved, reasonably be regarded
without exaggeration as amounting, in the particular case, to any of
the specific forms of treatment or punishment which the Article does
provide against.  Any other view would mean using the Article as a
vehicle of indirect penal reform, for which it was not intended.