22
[i]rrespective of the nature of the crime that is to be punished, however brutal it may
be, it is the firm opinion of the Committee that corporal punishment constitutes cruel,
inhuman and degrading treatment or punishment contrary to Article 7 of the Covenant.
64.
In the Case of Tyrer v. United Kingdom, the European Court of Human Rights
addressed the incompatibility of corporal punishment with the right to humane
treatment under Article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms. In the case of a minor who had been subjected
to three strokes of the birch pursuant to domestic legislation in the Isle of Man
(United Kingdom), the Court concluded that the treatment was degrading and as
such violated Article 3 of the European Convention. The European Court held that:
[t]he 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 […]
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 institutionalized 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.21
65.
Furthermore, norms of international humanitarian law absolutely prohibit the
use of corporal punishment in situations of armed conflict, as well as in times of
peace.22
66.
It should be noted that a number of those States that still retained corporal
punishment have recently abolished it.23 Moreover, an increasing number of
21
Eur. Court H.R., Tyrer v. United Kingdom, (5856/72), Judgment of April 25, 1978, Series A No.
26, para. 33. In the Case of A v. United Kingdom, the European Court similarly found that the beating of a
nine year-old boy with a garden cane, which had been applied with considerable force on more than one
occasion, constituted a violation of Article 3 of the European Convention (Eur. Court H.R., A v. United
Kingdom, (100/1997/884/1096), Judgment of September 23, 1998). For its part, the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has
specified that domestic laws providing for corporal punishment were "in flagrant contradiction with
European Prison Rules, and generally grossly outdated" or are "clearly no longer acceptable by modernday standards (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, Report to the Maltese Government on the visit to Malta (CPT) from July 1 to 19, 1990,
October 1, 1992, CPT/Inf (92) 5, at 16 and 23).
22
With respect to norms applicable in international armed conflicts, the Third Geneva Convention of
August 12, 1949 relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force
October 21, 1950, Art. 87 (3), 89 and 108. The Fourth Geneva Convention of August 12, 1949 relative to
the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950,
Arts. 32, 118 and 119. More generally, Article 75 of Additional Protocol I to the Geneva Conventions
provides that corporal punishment is and shall remain prohibited at any time and in any place whatsoever,
whether committed by civilian or by military agents (Protocol Additional to the Geneva Conventions
Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3,
entered into force Dec. 7, 1978, Art. 75 (2) (b). See also Art. 11(4). In the case of non-international
armed conflicts, Article 4 of the Additional Protocol II to the Geneva Conventions prohibits corporal
punishment at any time and in any place whatsoever (Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),
June 8, 1977).