EUROPEAN COURT OF HUMAN RIGHTS


In the case of Campbell and Cosans,

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 ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:

Mr. R. RYSSDAL, President,

Mr. J. CREMONA,

Mr. THÓR VILHJÁLMSSON,

Mr. L. LIESCH,

Mr. L.-E. PETTITI,

Sir Vincent EVANS,

Mr. R. MACDONALD,

and also Mr. M.-A EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,

Having deliberated in private on 28 September 1981 and
29 January 1982,

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

PROCEDURE

1. The case of Cambpbell and Cosans was referred to the Court by the
Euopean Commission of Human Rights ("the Commission") and by the
Government of the United Kingdom of Great Britain and Northern
Ireland ("the Government"). The case originated in two
applications against the United Kingdom lodged with the Commission
in 1976 under Article 25 (art. 25) of the Convention by citizens of that
State, Mrs. Grace Campbell and Mrs. Jane Cosans. The Commission
ordered the joinder of the applications on 6 October 1979.

2. Both the Commission's request and the Government's application
were lodged with the registry of the Court on 13 October 1980,
within the period of three months laid down by Articles 32
par. 1 and 47 (art. 32-1, art. 47). The request referred to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby
the United Kingdom recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46); the application referred to Article 48
(art. 48). The purpose of the request and of the application is to
obtain a decision as to whether or not the facts of the case disclose
a breach by the respondent State of its obligations under Article 3 of
the Convention and Article 2 of Protocol no. 1 (art. 3, P1-2).

3. The Chamber of seven judges to be constituted included, as ex
officio members, Sir Vincent Evans, 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 par. 3
(b) of the Rules of Court). On 6 November 1980, the Vice-President
drew by lot, at the request of the President and in the presence of
the Registrar, the names of the five other members, namely
Mr. R. Ryssdal, Mr. J. Cremona, Mr. L. Liesch, Mr. M. Sørensen and
Mr. R. Macdonald (Article 43 in fine of the Convention and
Rule 21 par. 4) (art. 43).

4. Mr. Balladore Pallieri assumed the office of President of the
Chamber (Rule 21 par. 5); following his death on 9 December 1980, he
was replaced by Mr. Wiarda, then Vice-President of the Court
(Rule 21 par. 3 (b) and 5). Having ascertained, through the
Registrar, the views of the Agent of the Government and the Delegates
of the Commission regarding the procedure to be followed, Mr. Wiarda
decided on 15 December that the Agent should have until 16 March 1981
to file a memorial and that the Delegates should be entitled to file a
memorial in reply within two months from the date of the transmission
of the Governments' memorial to them by the Registrar. Mr. Wiarda,
who had in the meantime been elected President of the Court, agreed on
13 and 27 March to extend the first of these time-limits until 6 and
20 April 1981, respectively, and on 15 June to extend the second until
22 July 1981.

The Government's memorial was received at the registry on
21 April 1981. On 21 July, the Secretary to the Commission, who had
informed the Registrar on 12 May that the Delegates would present
their observations at the oral hearings, transmitted to the Court
observations on the memorial, which had been submitted to the
Delegates by Mrs. Campbell's lawyer.

5. After consulting, through the Registrar, the Agent of the
Government and the Delegates of the Commission, the President
directed on 28 July that the oral hearings should open on
25 September 1981.

6. The oral hearings were held in public at the Human Rights
Building, Strasbourg, on 25 September. The Chamber had held a
preparatory meeting on the previous day. As a result of the
indisposition of Mr. Wiarda and Mr. Sørensen, Mr. Ryssdal assumed
the office of President of the Chamber (Rule 21 par. 3 (b) and 5)
and Mr. Thór Vilhjálmsson and Mr. Pettiti, the first and second
substitute judges, were called upon to sit as members thereof
(Rule 22 par. 1).

There appeared before the Court:

- for the Government:

Mrs. A. GLOVER, Legal Adviser, Foreign and
Commonwealth Office, Acting Agent,

Lord MACKAY, Q. C., Lord Advocate,

Mr. B. GILL, Q C.,

Mr. N. BRATZA, Barrister-at-Law, Counsel,

Mr. J. MCCLUSKIE, Lord Advocate's Department,

Miss M. WALKER, Scottish Office,

Mr. R. SMITH, Scottish Education Departement, Advisers;

- for the Commission:

Mr. C. NØRGAARD,

Mr. B. KIERNAN, Delegates,

Mr. C. THORNBERRY, Barrister-at-Law,
and J. MACEWAN, Solicitor,
lawyers for Mrs. Campbell,
and

Mr. R. MCLEAN, Q. C.,
and Mr. G. Cox, Solicitor,
lawyers for Mrs. Cosans, assisting the Delegates,
under Rule 29 par. 1,
second sentence,
of the Rules of Court.

The Court heard addresses by Mr. Nørgaard, Mr. Kiernan,
Mr. Thornberry and Mr. McLean for the Commission and by Lord Mackay for
the Government, and also replies to questions put by it and two of
its members. Mr. Thornberry filed a document through the Delegates.

7. On 30 October, certain texts which the Court had asked the
Government to supply were received at the registry.

On 20 January 1982, the Government replied to a letter of 6 January
from the Registrar containing certain questions posed by the Court.

AS TO THE FACTS

8. Both Mrs. Campbell and Mrs. Cosans live in Scotland. Each of them
had one child of compulsory school age at the time when she applied
to the Commission. The applicants' complaints concern the use of
corporal punishment as a disciplinary measure in the State schools
in Scotland attended by their children. For both financial and
pratical reasons, the applicants had no realistic and acceptable
alternative to sending their children to State schools.

I. FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS

A. Mrs. Campbell

9. At the time of Mrs. Campbell's application to the Commission
(30 March 1976), her son Gordon, who was born on 3 July 1969, was
attending St. Matthew's Roman Catholic Primary School in Bishopbriggs
which is situated in the Strathclyde Region Education Authority area.
In that school, corporal punishment is used for disciplinary purposes,
although it was disputed before the Commission and the Court whether
it is applied to pupils below the age of 8. The Strathclyde Regional
Council had refused Mrs. Campbell's requests for a guarantee that
Gordon would not be subjected to this measure. He was, in fact, never
so punished whilst at that school, where he remained until July 1979.

B. Mrs. Cosans

10. Mrs. Cosans' son Jeffrey, who was born on 31 May 1961, used to
attend Beath Senior High School in Cowdenbeath which is situated in
the Fife Region Education Authority area. On 23 September 1976, he
was told to report to the Assistant Headmaster on the following day
to receive corporal punishment for having tried to take a prohibited
short cut through a cemetery on his way home from school. On his
father's advice, Jeffrey duly reported, but refused to accept the
punishment. On that account, he was immediately suspended from
school until such time as he was willing to accept the punishment.

11. On 1 October 1976. Jeffrey's parents were officially informed of
his suspension. On 18 October, they had an inconclusive meeting with
the Senior Assistant Director of Education of the Fife Regional
Council during which they repeated their disapproval of corporal
punishment. On 14 January 1977, the day after a further meeting,
that official informed Mr. and Mrs. Cosans by letter that he had
decided to lift the suspension in view of the fact that their son's
long absence from school constituted punishment enough; however, he
added the condition that they should accept, inter alia, that
"Jeffrey will obey the rules, regulations or disciplinary
requirements of the school". However, Mr. and Mrs. Cosans
stipulated that if their son were to be readmitted to the school, he
should not receive corporal punishment for any incident while he was
a pupil. The official replied that this constituted a refusal to
accept the aforesaid condition. Accordingly, Jeffrey's suspension
was not lifted and his parents were warned that they might be
prosecuted for failure to ensure his attendance at school.

In the event, Jeffrey never returned to school after
24 September 1976. He ceased to be of compulsory school age on
31 May 1977, his sixteenth birthday.

II. GENERAL BACKGROUND AND DOMESTIC LAW

12. Under Scottish law, the use of corporal punishment is controlled
by the common law, particularly the law of assault. The general
principle is that an assault may give rise to a civil claim for
damages or to prosecution for a criminal offence. However, teachers
in both State and other schools are, by virtue of their status as
teachers, invested by the common law with power to administer such
punishment in moderation as a disciplinary measure. Excessive,
arbitrary or cruel punishment by a teacher or its infliction for an
improper motive would constitute an assault. The teacher's power of
chastisement, like that of a parent, derives from his relationship
with the children under his care and is therefore not in the nature
of a power delegated by the State. Thus, the administration of
corporal punishment as a disciplinary measure is, subject to the
limitations imposed by the common law as described above and to any
conditions incorporated in the teacher's contract with the education
authority employing him, left to the discretion of the teacher.

13. In the two schools concerned, corporal chastisement takes the
form of striking the palm of the pupil's hand with a leather strap
called a "tawse". For misconduct in the class-room, punishment is
administered there and then, in the presence of the class; for
misconduct elsewhere and for serious misconduct, it is administered
by the Headmaster, or his deputy, in his room.

The Commission noted that, on the facts of the case, it could not be
established that the applicants' children had suffered any adverse
psychological or other effects which could be imputed to the use of
corporal punishment in their schools.

14. At the time of the events giving rise to this case, the
administration of the Scottish educational system was regulated by
the Education (Scotland) Act 1962, now repealed and reenacted
without material change by the Education (Scotland) Act 1980.
Central government formulates general policy, promotes legislation
and exercises supervision; the primary responsibility for organising
facilities is vested in regional education authorities who are
required to secure that "adequate and efficient provision" of
school education is made for their area. Section 29 (1) of the
1962 Act provided that "in the exercise and performance of their
powers and duties under this Act, the Secretary of State and education
authorities shall have regard to the general principle that, so far as
is compatible with the provision of suitable instruction and training
and the avoidance of unreasonable public expenditure, pupils are to be
educated in accordance with the wishes of their parents".

15. Successive Education Acts have empowered the Secretary of State
for Scotland "to make regulations prescribing the standards and
general requirements to which every education authority shall
conform" in discharging its functions. According to the Government,
he is not thereby permitted to change the substantive law on a
teacher's right to administer corporal punishment, which would
require primary legislation. There are, in fact, no statutory
provisions governing the use of corporal punishment and the
utilisation of this method of discipline is a matter for the
discretion of the individual teacher, subject only to the limits set
by the common law and to any particular conditions in his contract
of employment.

16. Following agreement in principle that the teaching profession
should be encouraged to move towards the gradual elimination of
corporal punishment as a means of discipline in schools, a
consultative body - the Liaison Committee on Educational Matters, on
which the Scottish Education Department, the Association of
Directors of Education and the teachers' associations were
represented - prepared in 1968 a booklet entitled "Elimination of
Corporal Punishment in Schools: Statement of Principles and Code of
Practice". The Code reads as follows:

"Until corporal punishment is eliminated its use should be subject
to the following rules:

(i) It should not be administered for failure or poor performance in
a task, even if the failure (e.g., errors in spelling or
calculation, bad homework, bad handwriting, etc.) appears to be due
not to lack of ability or any other kind of handicap but to
inattention, carelessness or laziness. Failure of this type may be
more an educational and social problem than a disciplinary one, and may
require remedial rather than corrective action.

(ii) Corporal punishment should not be used in infant classes. Its
elimination from infant classes should be followed by progressive
elimination from other primary classes.

(iii) In secondary departments, only in exceptional circumstances
should any pupil be strapped by a teacher of the opposite sex or
girls be strapped at all.

(iv) Corporal punishment should not be inflicted for truancy or
lateness unless the head teacher is satisfied that the child and not
the parent is at fault.

(v) The strap should not be in evidence, except when it is being
used to inflict corporal punishment.

(vi) Where used, corporal punishment should be used only as a last
resort, and should be directed to punishment of the wrong-doer and
to securing the conditions necessary for order in the school and for
work in the classroom.

(vii) It should normally follow previous clear warning about the
consequences of a repetition of misconduct.

(viii) Corporal punishment should be given by striking the palm of
the pupil's hand with a strap and by no other means whatever."

17. The above-mentioned booklet, whose issue was welcomed by the
Secretary of State of Scotland, was sent to all education
authorities in February 1968. The code of Practice, which was
reissued in 1972, has no statutory force; however, the courts might
be expected to have regard thereto in civil or criminal proceedings
concerning an allegedly unlawful use of corporal punishment, and
failure to observe it might be relevant in disciplinary proceedings.

The authorities take the view that, within the guidelines set by the
Code, it is for the teachers in each school to determine the
disciplinary measures needed in the school. The Code is not
incorporated into the contracts of employment of teachers in the
Strathclyde or Fife Education Authority areas, although they have
been recommended to abide by it.

18. In 1974, the Secretary of State for Scotland appointed an
independent committee of inquiry ("the Pack Committee") to
investigate indiscipline and truancy in Scottish schools. The
Committee, which reported in 1977, was of the opinion "that
corporal punishment should, as was envisaged in 1968, disappear by a
process of gradual elimination rather than by legislation".

The Government remain committed to a policy aimed at abolishing
corporal punishment as a disciplinary measure in Scottish schools,
but they take the view that that policy is best implemented by
seeking to secure progress in this direction by consensus of all
concerned rather than by statute. A working group established in
1979 by the Convention of Scottish Local Authorities has been
considering, inter alia, the introduction of alternative sanctions and
there are, in fact, some schools in which the use of corporal
punishment has ceased or will soon be abandoned. However, its
continued use by teachers is apparently, according to a recent
opinion survey, favoured by a large majority of Scottish parents
and, according to the Pack Committee's report, by pupils, who even
prefer it to some other forms of punishment.

19. Under regulation 4 of The Schools General (Scotland) Regulations
1975, an education authority may exclude a pupil from school if
"the parent of the pupil refuses or fails to comply, or to allow
the pupil to comply, with the rules, regulation or disciplinary
requirements of the school".

Under section 35 of the 1962 and of the 1980 Education (Scotland)
Acts, if a child fails "without reasonable excuse" to attend
school regularly, the parent is guilty of an offence; unless the
court otherwise determines, a child is deemed to have so failed if
he has been required to discontinue his attendance on account of
"his parent's refusal or failure to comply" as aforesaid.

PROCEEDINGS BEFORE THE COMMISSION

20. Mrs. Campbell applied to the Commission on 30 March 1976 and
Mrs. Cosans on 1 October 1976. Each applicant maintained that the
use of corporal punishment as a disciplinary measure in the school
attended by her child constituted treatment contrary to Article 3
(art. 3) of the Convention and also failed to respect her right as a
parent to ensure her son's education and teaching in conformity with
her philosophical convictions, as guaranteed by the second sentence of
Article 2 of Protocol No. 1 (P1-2). Mrs. Cosans further contended
that Jeffrey's suspension from school violated his right to education,
protected by the first sentence of the last-mentioned Article (P1-2).

21. Both applications were declared admissible by the Commission on
15 December 1977.

In its report of 16 May 1980 (Article 31 of the Convention)
(art. 31), the Commission expressed the opinion:

- by nine votes to five, that there had been, as regards both
applicants, a violation of the second sentence of Article 2 of
Protocol No. 1 (P1-2):

- by eight votes to one, with five abstentions, that is was not
necessary to consider whether there had been a separate violation of
the first sentence of the said Article 2 (P1-2), as claimed
by Mrs. Cosans;

-by thirteen votes to one, that there had not been any violation of
Article 3 (art. 3) of the Convention.

The report contains three separate opinions.

SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT

22. At the hearings on 25 September 1981, the Government maintained
the submissions set out in their memorial, whereby they had
requested the Court:

"(1) With regard to Article 2 of Protocol No. 1 (P1-2)

(i) To decide and declare that the facts of the two cases disclose no
breach by the United Kingdom of their obligations under the second
sentence of Article 2 of the Protocol (P1-2);

(ii) (a) To decide and declare that the facts and circumstances of
the suspension of Jeffrey Cosans from school disclose no breach by
the United Kingdom of their obligations under the first sentence of
Article 2 of the Protocol (P1-2);

(b) alternatively, if and so far as a breach of the second sentence of
Article 2 of the Protocol (P1-2) is found, to decide and declare that
is unnecessary to examine the question as to whether the facts and
circumstances complained of constitute a separate violation of the
first sentence of Article 2 of the Protocol (P1-2) in respect of the
applicant, Mrs. Cosans.

(2) With regard to Article 25 par. 1 (art. 25-1) of the Convention

To decide and declare that the applicant, Mrs. Campbell, could not
at the time of filing her application with the Commission claim on
her son's behalf that he was a victim of a violation of Article 3
(art. 3) of the Convention for the purposes of Article 25 par. 1
(art. 25-1) of the Convention.

(3) With regard to Article 3 (art. 3) of the Convention

To decide and declare that, in any event, the facts of the two cases
disclose no breach by the United Kingdom of Article 3 (art. 3)
of the Convention."

AS TO THE LAW

23. The Court considers it preferable to begin by examining the issues
arising under Article 3 (art. 3) of the Convention, this being the
provisions on which principal reliance was placed in the original
applications to the Commission.

I. The alleged violation of Article 3 (art. 3) of the Convention

24. Mrs. Campbell and Mrs. Cosans claimed that, on account of the
use of corporal punishment as a disciplinary measure in school,
their sons Gordon and Jeffrey were victims of a violation of
Article 3 (art. 3) which reads:

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

The Commission found no such violation. The Government agreed with
this conclusion.

25. Neither Gordon Campbell nor Jeffrey Cosans was, in fact,
strapped with the tawse. Accordingly, the Court does not in the
present case have to consider under Article 3 (art. 3) an actual
application of corporal punishment.

26. However, the Court is of the opinion that, provided it is
sufficiently real and immediate, a mere threat of conduct prohibited
by Article 3 (art. 3) may itself be in conflict with that provision.
Thus, to threaten an individual with torture might in some
circumstances constitute at least "inhuman treatment".

27. Although the system of corporal punishment can cause a certain
degree of apprehension in those who may be subject to it, the Court
nevertheless shares the Commission's view that the situation in
which the applicants' sons found themselves did not amount to
"torture" or "inhuman treatment", within the meaning of Article 3
(art. 3): there is no evidence that they underwent suffering of the
level inherent in these notions as they were interpreted and applied
in the Court's Ireland v. the United Kingdom judgment of
18 January 1978 (Series A no. 25, pp. 66-67 and 68, par. 167 and 174).

28. The Court's judgment of 25 April 1978 in the Tyrer case does
indicate certain criteria concerning the notion of "degrading
punishment" (Series A no. 26, p. 15, par. 30). In the present case, no
"punishment" has actually been inflicted. Nevertheless, it follows
from that judgment that "treatment" itself will not be "degrading"
unless the person concerned has undergone - either in the eyes of
others or in his own eyes (ibid., p. 16, par. 32) - humiliation or
debasement attaining a minimum level of severity. That level has to be
assessed with regard to the circumstances of the case (see the
above-mentioned Ireland v. the United Kingdom judgment, p. 65,
par. 162, p. 66, par. 167, and pp. 69-70, par. 179-181).

29. Corporal chastisement is traditional in Scottish schools and,
indeed, appears to be favoured by a large majority of parents (see
paragraph 18 above). Of itself, this is not conclusive of the issue
before the Court for the threat of a particular measure is not
excluded from the category of "degrading", within the meaning of
Article 3 (art. 3), simply because the measure has been in use for
a long time or even meets with general approval (see, mutatis
mutandis, the above-mentioned Tyrer judgment, p. 15, par. 31).

However, particularly in view of the above-mentioned circumstances
obtaining in Scotland, it is not established that pupils at a school
where such punishment is used are, solely by reason of the risk of
being subjected thereto, humiliated or debased in the eyes of others
to the requisite degree or at all.

30. As to whether the applicants' sons were humiliated or debased in
their own eyes, the Court observes first that a threat directed to
an exceptionally insensitive person may have no significant effect
on him but nevertheless be incontrovertibly degrading; and
conversely, an exceptionally sensitive person might be deeply
affected by a threat that could be described as degrading only by a
distortion of the ordinary and usual meaning of the word. In any
event, in the case of these two children, the Court, like the
Commission, notes that is has not been shown by means of medical
certificates or otherwise that they suffered any adverse
psychological or other effects (see paragraph 13 above).

Jeffrey Cosans may well have experienced feelings of apprehension or
disquiet when he came close to an infliction of the tawse (see
paragraph 10 above), but such feelings are not sufficient to amount
to degrading treatment, within the meaning of Article 3 (art. 3).

The same applies, a fortiori, to Gordon Campbell since he was never
directly threatened with corporal punishment (see paragraph 9
above). It is true that counsel for his mother alleged at the
hearings that group tension and a sense of alienation in the pupil
are induced by the very existence of this practice but, even if this
be so, these effects fall into a different category from humiliation
or debasement.

31. To sum up, no violation of Article 3 (art. 3) is established. This
conclusion renders it unnecessary for the Court to consider whether
the applicants are entitled, under Article 25 (art. 25) of the Convention,
to claim that their children were victims of such a violation, an
issue that was examined by the Commission and was the subject of
submissions by the Government.

II. The alleged violation of the second sentence of Article 2 of
Protocol No. 1 (P1-2).

32. Article 2 of Protocol No. 1 (P1-2) reads as follows:

"No person shall be denied the right to education. In the exercise
of any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure
such education and teaching in conformity with their own religous
and philosophical convictions."

Mrs. Campbell and Mrs. Cosans alleged that their rights under the
second sentence of this Article (P1-2) were violated on account of the
existence of corporal punishment as a disciplinary measure in the
schools attended by their children.

The Government contested, on various grounds, the conclusion of the
majority of the Commission that there had been such a violation.

33. The Government maintained in the first place that functions
relating to the internal administration of a school, such as
discipline, were ancillary and were not functions in relation to
"education" and to "teaching", within the meaning of Article 2
(P1-2), these terms denoting the provision of facilities and the
imparting of information, respectively.

The Court would point out that the education of children is the
whole process whereby, in any society, adults endeavour to transmit
their beliefs, culture and other values to the young, whereas
teaching or instruction refers in particular to the transmission of
knowledge and to intellectual development.

It appears to the Court somewhat artificial to attempt to separate
off matters relating to internal administration as if all such
matters fell outside the scope of Article 2 (P1-2). The use of
corporal punishment may, in a sense, be said to belong to the internal
administration of a school, but at the same time it is, when used,
an integral part of the process whereby a school seeks to achieve
the object for which it was established, including the development
and moulding of the character and mental powers of its pupils.
Moreover, as the Court pointed out in its Kjeldsen, Busk Madsen and
Pedersen judgment of 7 December 1976 (Series A no. 23, p. 24,
par. 50), the second sentence of Article 2 (P1-2) is binding upon the
Contracting States in the exercise of "each and every" function
that they undertake in the sphere of education and teaching, so that
the fact that a given function may be considered to be ancillary is
of no moment in this context.

34. The Government further argued that in Scotland the "functions"
assumed by central or local government in the educational field did
not extend to matters of discipline.

It may be true that the day-to-day maintenance of discipline in the
schools in question is left to the individual teacher; when he
administers corporal punishment he is exercising not a power
delegated to him by the State but a power vested in him by the
common law by virtue of his status as a teacher, and the law in this
respect can be changed only by Act of Parliament (see paragraphs 12,
15 and 17 above). Nevertheless, in regard to education in Scotland,
the State has assumed responsibility for formulating general policy
(see paragraph 14 above) and the schools attended by the applicants'
children were State schools. Discipline is an integral, even
indispensable, part of any educational system, with the result that
the functions assumed by the State in Scotland must be taken to
extend to question of discipline in general, even if not to its
everyday maintenance. Indeed, this is confirmed by the fact that
central and local authorities participated in the preparation of the
Code of Practice and that the Government themselves are commited to
a policy aimed at abolishing corporal punishment (see paragraphs 16
and 18 above).

35. Thirdly, in the submission of the Government, the obligation to
respect philosophical convictions arises only in the relation to the
content of, and mode of conveying, information and knowledge and not in
relation to all aspects of school administration.

As the Government pointed out, the Kjeldsen, Busk Madsen and
Pedersen judgment states (p. 26, par. 53):

"The second sentence of Article 2 (P1-2) implies ... that the State, in
fulfilling the functions assumed by it in regard to education and
teaching, must take care that information or knowledge included in
the curriculum is conveyed in an objective, critical and pluralistic
manner. The State is forbidden to pursue an aim of indoctrination
that might be considered as not respecting parents' religious and
philosophical convictions. That is the limit that must not be
exceeded."

However, that case concerned the content of instruction, whereas the
second sentence of Article 2 (P1-2) has a broader scope, as is shown
by the generality of its wording. This was confirmed by the Court in
the same judgment when it held that the said sentence is binding upon
the Contracting States in the exercise, inter alia, of the function
"consisting of the organisation and financing of public education"
(p. 24, par. 50). And in the present case the functions assumed by the
respondent State in this area extend to the supervision of the
Scottish educational system in general, which must include questions
of discipline (see paragraph 34 above).

36. The Government also contested the conclusion of the majority of
the Commission that the applicants' views on the use of corporal
punishment amounted to "philosophical convictions", arguing, inter
alia, that the expression did not extend to opinions on internal
school administration, such as discipline, and that, if the majority
were correct, there was no reason why objections to other methods of
discipline, or simply to discipline in general, should not also
amount to "philosophical convictions".

In its ordinary meaning the word "convictions", taken on its own,
is not synonymous with the words "opinions" and "ideas", such as
are utilised in Article 10 (art. 10) of the Convention, which
guarantees freedom of expression; it is more akin to the term
"beliefs" (in the French text: "convictions") appearing in Article 9
(art. 9) - which guarantees freedom of thought, conscience and
religion - and denotes views that attain a certain level of cogency,
seriousness, cohesion and importance.

As regards the adjective "philosophical", it is not capable of
exhaustive definition and little assistance as to its precise
significance is to be gleaned from the travaux préparatoires. The
Commission pointed out that the word "philosophy" bears numerous
meanings: it is used to allude to a fully-fledged system of thought
or, rather loosely, to views on more or less trivial matters. The
Courts agrees with the Commission that neither of these two extremes
can be adopted for the purposes of interpreting Article 2 (P1-2): the
former would too narrowly restrict the scope of a right that is
guaranteed to all parents and the latter might result in the
inclusion of matters of insufficient weight or substance.

Having regard to the Convention as a whole, including Article 17
(art. 17), the expression "philosophical convictions" in the present
context denotes, in the Court's opinion, such convictions as are
worthy of respect in a "democratic society" (see, most recently, the
Young, James and Webster judgment of 13 August 1981, Series A no. 44,
p. 25, par. 63) and are not incompatible with human dignity; in
addition, they must not conflict with the fundamental right of the
child to education, the whole of Article 2 (P1-2) being dominated by
its first sentence (see the above-mentioned Kjeldsen, Busk Madsen and
Pedersen judgment, pp. 25-26, par. 52).

The applicants' views relate to a weighty and substantial aspect of
human life and behaviour, namely the integrity of the person, the
propriety or otherwise of the infliction of corporal punishment and
the exclusion of the distress which the risk of such punishment
entails. They are views which satisfy each of the various criteria
listed above; it is this that distinguishes them from opinions that
might be held on other methods of discipline or on discipline in
general.

37. The Government pleaded, in the alternative, that the obligation
to respect the applicants' convictions had been satisfied by the
adoption of a policy of gradually eliminating corporal chastisement.
They added that any other solution would be incompatible with the
necessity of striking a balance between the opinions of supporters
and opponents of this method of discipline and with the terms of the
reservation to Article 2 (P1-2) made by the United Kingdom at the
time of signing the Protocol, which reads:

"... in view of certain provisions of the Education Acts in force in
the United Kingdom, the principle affirmed in the second sentence of
Article 2 (P1-2) is accepted by the United Kingdom only so far as it
is compatible with the provision of efficient instruction and
training, and the avoidance of unreasonable public expenditure."

The Court is unable to accept the submissions.

(a) Whilst the adoption of the policy referred to clearly
foreshadows a move in the direction of the position taken by the
applicants, is does not amount to "respect" for their convictions.
As is confirmed by the fact that, in the course of the drafting of
Article 2 (P1-2), the words "have regard to" were replaced by the word
"respect" (see documents CDH (67) 2 (*), p. 163) the latter word
means more than "aknowledge" or "taken into account"; in addition to a
primarily negative undertaking, it implies some positive obligation on
the part of the State (see mutatis mutandis, the Marckx judgment of
13 Juni 1979, series A no. 31, p. 15, par. 31). This being so, the duty
to respect parental convictions in this sphere cannot be overriden by
the alleged neccessity of striking a balance between the conflicting
views involved, nor is the Government's policy to move gradually
towards the abolition of corporal punishment in itself sufficient to
comply with this duty.

_______________
(*) Note by the Registry: Preparatory work on Article 2 of the
Protocol to the Convention (P1-2) - information document prepared by the
Registry, available on request.
_______________

(b) As regards the United Kingdom reservation, the Court notes that
the provision of domestic law cited in the present case by the
Government is section 29 (1) of the Education (Scotland) Act 1962
(see paragraph 14 above). Under Article 64 (art. 64) of the Convention,
a reservation in respect of any provision is permitted only
to the extent that any law in force in a State's territory at the time
when the reservation is made is not in conformity with the provision.
The Protocol (P1) was signed on behalf of the United Kingdom on
20 March 1952. However, section 29 (1) was no more than a
re-enactment of an identical provision in the Education (Scotland) Act
1946 and therefore goes no further than a law in force at the time
when the reservation was made.

The Court accepts that certain solutions canvassed - such as the
establishment of a dual system whereby in each sector there would be
separate schools for the children of parents objecting to corporal
punishment - would be incompatible, especially in the present
economic situation, with the avoidance of unreasonable public
expenditure. However, the Court does not regard it as established
that other means of respecting the applicants' convictions, such as
a system of exemption for individual pupils in a particular school,
would necessarily be incompatible with "the provision of efficient
instruction and training, and the avoidance of unreasonable public
expenditure".

38. Mrs. Campbell and Mrs. Cosans have accordingly been victims of a
violation of the second sentence of Article 2 of Protocol No. 1
(P1-2).

III. The alleged violation of the first sentence of Article 2 of
Protocol No. 1 (P1-2).

39. Mrs. Cosans alleged that, by reason of his suspension from
school (see paragraphs 10-11 above), her son Jeffrey had been denied
the right to education contrary to the first sentence of Article 2
(P1-2).

The Commission found it unneccessary to examine the issue,
considering it to be absorbed by the finding of a violation of the
second sentence. The government, in an alternative plea, accepted
this view but their principal submission was that the right of access
to educational facilities which is guaranteed by the first sentence
may be made subject to reasonable requirements and that, since
Jeffrey's suspension was due to his and his parents' refusal to
accept such a requirement, there had been no breach.

40. The Court considers that it is necessary to determine this
issue. Of course, the existence of corporal punishment as a
disciplinary measure in the school attended by her son Jeffrey
underlay both of Mrs. Cosans' allegations concerning Article 2
(P1-2), but there is a substantial difference between the factual
basis of her two claims. In the case of the second sentence, the
situation complained of was attendance at a school where recourse was
had to a certain practice, whereas, in the case of the first sentence,
is was the fact of being forbidden to attend; the consequences of the
latter situation are more far-reaching than those of the former.
Accordingly, a separate complaint, and not merely a further legal
submission or argument, was involved (see mutatis mutandis, the Le
Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A
no. 43, p. 18, par. 38)

Again, Article 2 (P1-2) constitutes a whole that is dominated by its
first sentence, the right set out in the second sentence being an
adjunct of the fundamental right to education (see the above-mentioned
Kjeldsen, Busk Madsen and Pedersen judgment, pp. 25-26, par. 52).

Finally, there is also a substantial difference between the legal
basis of the two claims, for one concerns a right of a parent and
the other a right of a child.

The issue arising under the first sentence is therefore not absorbed
by the finding of a violation of the second.

41. The right to education guaranteed by the first sentence of
Article 2 (P1-2) by ist very nature calls for regulation by the State,
but such regulation must never injure the substance of the right nor
conflict with other rights enshrined in the Convention or its
Protocols (see the judgment of 23 July 1968 on the merits of the
"Belgian Linguistic" case, Series A no. 6, p. 32, par. 5).

The suspension of Jeffrey Cosans - which remained in force for
nearly a whole school year - was motivated by his and his parents'
refusal to accept that he receive or be liable to corporal
chastisement (see paragraphs 10-11 above). His return to school
could have been secured only if his parents had acted contrary to
their convictions, convictions which the United Kingdom is obliged
to respect under the second sentence of Article 2 (P1-2)
(see paragraphs 35-36 above). A condition of access to an educational
establishment that conflicts in this way with another right enshrined
in Protocol No. 1 cannot be described as reasonable and in any event
falls outside the State's power of regulation under Article 2 (P1-2).

There has accordingly also been, as regards Jeffrey Cosans, breach
of the first sentence of that Article (P1-2).

IV. The applications of Article 50 (art. 50) of the Convention

42. Counsel for Mrs. Cosans stated that, should the Court find a
violation of the Convention and/or Protocol No. 1, his client would
seek just satisfaction under Article 50 (art. 50) in respect of moral
damage and legal costs, but he did not quantify her claim. The Lord
Advocate, for the Government, reserved his position, as did counsel
for Mrs. Campbell.

Accordingly, although is was raised under Rule 47 bis of the Rules
of Court, this question is not yet ready for decision. The Court
must therefore reserve it and fix the further procedure, taking due
account of the possibility of an agreement between the respondent
State and the applicants.

FOR THESE REASONS, THE COURT

1. Holds unanimously that no violation of Article 3 (art. 3) of the
Convention is established;

2. Holds by six votes to one that there has been, with respect to
Mrs. Campbell and Mrs. Cosans, breach of the second sentence of
Article 2 of Protocol No. 1 (P1-2);

3. Hold by six votes to one that there has been, as regards
Jeffrey Cosans, breach of the first sentence of the last-mentioned
Article (P1-2);

4. Holds unanimously that the question of the application of
Article 50 (art. 50) of the Convention is not ready for decision;

(a) accordingly reserves the whole of the said question;

(b) invites the Commission to submit to the Court, within two months
from the delivery of the present judgment, the Commission's written
observations on the said question and, in particular, to notify the
Court of any friendly settlement at which the Government and the
applicants may have arrived;

(c) reserves the further procedure and delegates to the President of
the Chamber power to fix the same if need be.

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

For the President
Signed: John Cremona
Judge

Signed: Marc-André Eissen
Registrar

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

Initialled: J.C.

Initialled: M.-A.E.

PARTLY DISSENTING OPINION OF JUDGE
SIR VINCENT EVANS

1. I agree that no violation of Article 3 (art. 3) of the
Convention is established.

2. In my opinion, however, the majority of the Court have given
too wide an interpretation to Article 2 of Protocol No. 1 (P1-2)
and I regret that I cannot share their view that there has been
a breach of that Article (P1-2). Even if their interpretation
were correct, it would be my opinion that there has been no violation
in view of the reservation to the second sentence of Article 2
(P1-2) made by the United Kingdom on signature of the Protocol
(P1).

3. In the previous two cases in which the application of
Article 2 (P1-2) has been in issue, the Court has found it
indispensable to have recourse to the negotiating history of the
Article as an aid to the interpretation of what is undeniably a
very difficult text (judgment of 23 July 1968 on the merits of
the "Belgian Linguistic" case, Series A no. 6, pp. 30-32, §§ 3-6;
judgment of 7 December 1976 in the case of Kjeldsen, Busk Madsen
and Pedersen, Series A no. 23, pp. 24-28, §§ 50-54). In the latter
case the Court observed that the "travaux préparatoires" are "without
doubt of particular consequence in the case of a clause that gave
rise to such lengthy and impassioned discussions". In both the
cases cited, the Court, after recourse to the travaux, adopted,
in respects relevant to the present case, a restrictive view of
the aim of the second sentence of Article 2 (P1-2). In the Kjeldsen,
Busk Madsen and Pedersen case (in which parents sought unsuccessfully
to have their children exempted from sex education in State schools
on the ground that it was contrary to their beliefs as Christian
parents) this was that the State is forbidden to pursue an aim
of indoctrination that might be considered as not respecting parents'
religious and philosophical convictions. "That", said the Court,
"is the limit that must not be exceeded" and consequently it was
held that legislation which "in no way amount[ed] to an attempt
at indoctrination aimed at advocating a specific kind of sexual
behaviour" did not offend the applicants' religious and philosophical
convictions to the extent forbidden by the second sentence of
Article 2 (P1-2) (loc. cit., pp. 26-28, §§ 53-54). In the "Belgian
Linguistic" case it was held that this provision did not require
of States that they should, in the sphere of education and teaching,
respect parents' linguistic preferences, but only their religious
and philosophical convictions and that to interpret the terms
"religious" and "philosophical" as covering linguistic preferences
would amount to a distortion of their ordinary and usual meaning
and read into the Convention something that was not there
(loc. cit., p. 32, § 6).

4. In the course of the preparatory work on Article 2 (P1-2)
in the Consultative Assembly of the Council of Europe the expression
"philosophical convictions" was criticised as being so vague that
it should not be inserted in a legal instrument purporting to protect
human rights. But this very criticism evoked from Mr. Teitgen,
the Rapporteur of the Consultative Assembly's Committee on Legal
and Administrative Questions to which a draft of the Protocol had
been referred for advice, a very emphatic explanation in the light
of which the text of Article 2 (P1-2) was finally settled and the
Protocol adopted and opened for signature. Mr. Teitgen made it
clear that the intention was to protect the rights of parents
against the use of educational institutions by the State for the
ideological indoctrination of children (Official Report of the
Thirty-Fifth Sitting of the Consultative Assembly, 8 December 1951,
Collected edition V, pp. 1229-1230). This was precisely the
interpretation put upon the text by the Court in the Kjeldsen, Busk
Madsen and Pedersen case (see paragraph 3 above). In the light
of this background, my understanding of the second sentence of
Article 2 (P1-2) is that it is concerned with the content of
information and knowledge imparted to the child through education
and teaching and the manner of imparting such information and
knowledge and that the views of parents on such matters as the
use of corporal punishment are as much outside the intended scope
of the provision as are their linguistic preferences. If there
had been any intention that it should apply to disciplinary measures,
and to the use of corporal punishment in particular, it is
inconceivable that the implications of this would not have been
raised in the course of the lengthy debates that preceded its
adoption.

5. An interpretation of the second sentence of Article 2 (P1-2)
extending its application beyond its intended scope could give rise to
very considerable difficulties in practice. The maintaining of
discipline is certainly an integral part of the educational system, as
the majority of the Court have observed. So are many other matters
relating to the provision of educational facilities and the internal
administration of schools, as distinct from the content of the
instruction given. If the sentence in question is interpreted in a
sense wide enough to cover the views of parents opposed to corporal
punishment, I do not see how it can reasonably be applied so as to
exclude from its scope all manner of other strongly held views
regarding the way in which schools are organised and administered.
There may be very strongly held beliefs on such matters as the
segregation of sexes, the streaming of pupils according to ability or
the existence of independent schools, which could be claimed to have a
religious or philosophical basis. The view in favour of the abolition
of independent schools, for example, could be regarded as a
philosophical conviction on the part of those who believe in the
ideology of egalitarianism. It would surely create problems which
were never intended by the authors of the Protocol if different
and inevitably conflicting opinions of this order had to be
acommodated within the State's educational system. There is an
important difference between the kind of convictions which it is
my understanding that Article 2 (P1-2) was aimed to protect and
views of the kind just mentioned. Different religious and
philosophical convictions relating to the content of instruction
can be duly respected in the teaching process by presenting
information in an objective way. But in regard to such matters
as the segregation of the sexes, streaming and the abolition of
independent schools, there would be insuperable practical difficulties
in respecting equally the views of those who are opposed to and
those who favour one system or the other. As Mr. Renton quite
rightly foresaw in his comments in the Consultative Assembly on
the draft Protocol, "We are getting into very deep water when we
start talking along those lines" (Official Report of the Thirty-Fourth
Sitting of the Consultative Assembly, 7 December 1951, Collected
edition V, p. 1215).

6. However, even if the wider interpretation of the second sentence
of Article 2 (P1-2) adopted by the Court in the present case were
correct, it would be my opinion that there has been no violation
of this provision in view of the reservation made by the United
Kingdom on signature of the Protocol. The reservation reads as
follows:

"In view of certain provisions of the Education Acts in force
in the United Kingdom, the principle affirmed in the second sentence
of Article 2 (P1-2) is accepted by the United Kingdom only so far
as it is compatible with the provision of efficient instruction
and training, and the avoidance of unreasonable public expenditure."

In respect of the United Kingdom, Article 2 (P1-2) must be interpreted
and applied as modified by the reservation. This means that the
obligation thereunder to respect the right of parents has been
assumed by the United Kingdom only so far as this can be done
compatibly with the provision of efficient instruction and training
and the avoidance of unreasonable public expenditure.

7. In the light of the interpretation put by them on the second
sentence of Article 2 (P1-2), the majority of the Court have held
that the Government's policy to move gradually towards the abolition
of corporal punishment is not in itself sufficient to comply with
their duty to respect parental convictions. It is implicit in
the Court's judgment that some more positive means of respecting
the applicants' convictions is called for by the sentence in question.
If so, it is my view that the State is entitled to invoke its
reservation unless it is shown that some other practical solution
is available which is compatible with both the provision of efficient
instruction and training and the avoidance of unreasonable public
expenditure. In the course of the proceedings, only three possible
solutions have been canvassed which, apart from the reservation,
would sufficiently comply with the State's obligation as interpreted
by the Court. These are:

1. that separate schools should be provided within the State
educational system for children of parents who object to corporal
punishment;

2. that separate classes within the same school should be provided for
such children;

3. that a system should be established in which children in the same
class should be treated differently according to the views and wishes
of their parents.

The Court accepts that the first solution would be incompatible
with the avoidance of unreasonable public expenditure, especially
in the present economic situation. The second solution too would
surely involve unreasonable expense and hardly be compatible with
the provision of efficient instruction and training. Moreover,
in this connexion the wider implications of the Court's
interpretation discussed in paragraph 5 above must be borne in
mind. There remains the third possible solution referred to above.
The Court was informed at the oral hearing that at least some members
of the Commission held the view that this would, for many reasons,
not be a practical solution. I agree with this view. It seems
to me essential that any system of discipline in a school should
be seen to be fair and capable of being fairly administered,
otherwise a sense of injustice will be generated with harmful
consequences both for the upbringing of the individual and for
harmonious relations within the group. It will also place the
teacher in an impractical position to administer discipline fairly
if children in the same class have to be treated differently according
to the views of their parents. It has been pointed out that, where
corporal punishment is used, exceptions are in any event made in
respect of girls and children suffering from a disability. I believe
that children will readily understand the reasons for this, but
I think they are likely to regard it as arbitrary and unjust if
Johnny is exempted simply because his Mum or Dad says so.

8. For these reasons I am not satisfied that there is available
a practical system for exempting individual pupils from corporal
punishment at the wish of their parents which would be compatible
both with the provision of efficient instruction and training and
with the avoidance of unreasonable public expenditure. In these
circumstances the reservation made by the United Kingdom to the
second sentence of Article 2 (P1-2) applies.

9. I conclude therefore that there has been no breach of the
second sentence of Article 2 (P1-2).

10. There remains the question whether there has been a breach of
the first sentence of Article 2 (P1-2) in the case of Jeffrey Cosans
on account of his suspension from school. In its above-mentioned
judgment of 23 July 1968 in the "Belgian Linguistic" case
(pp. 31-32, §§ 4-5), the Court interpreted the first sentence as
guaranteeing a right of access to educational institutions existing
at a given time, but recognised that the right to education
so guaranteed by its very nature calls for regulation by the
State provided that "such regulation must never injure the substance
of the right to education nor conflict with other rights enshrined
in the Convention". It is implicit in this that the right of access
may be made subject to reasonable requirements, including acceptance
of the rules, regulations and disciplinary requirements of the
school. Since in my view, contrary to that of the majority of
the Court, the disciplinary requirements which Jeffrey Cosans and
his parents refused to accept did not violate the second sentence
of Article 2 (P1-2), I do not find that there has been a breach
of the first sentence of that Article (P1-2).