Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 4.2.1 Corporal punishment It will be recalled that inter alia article 7 of the International Covenant, article 5 of the African Charter, article 5(2) of the American Convention and article 3 of the European Convention all outlaw recourse to torture, cruel and/or inhuman or degrading treatment or punishment. This prohibition is valid at all times and allows for no limitations. ***** The Human Rights Committee has observed that the prohibition in article 7 “relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim” and that, moreover, “the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure”.215 It is not clear, however, what the Committee here means by “excessive chastisement”; but to judge from the Committee members’ questions and recommendations to the States parties in connection with consideration of the periodic reports, they regard the use of corporal punishment as an inappropriate form of chastisement that is contrary to article 7 and should be abolished.216 ***** The case of Tyrer brought under the European Convention on Human Rights concerned the imposition of three strokes with a cane on an adolescent, a punishment ordered by a juvenile court in the Isle of Man. The caning “raised, but did not cut, the applicant’s skin and he was sore for about a week and a half afterwards”.217 The European Court concluded that “the element of humiliation attained the level inherent in the notion of ‘degrading punishment’” and was therefore contrary to article 3 of the European Convention.218 The Court expressed its view on judicial corporal punishment in the following terms: “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. ... 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 215 General Comment No. 20 (Art. 7) , United Nations Compilation of General Comments, p. 139, para. 5; emphasis added. 216 See recommendations as to the Jamaican Flogging Regulation Act, 1903 and the Jamaican Crime (Prevention of) Act, 1942, GAOR, A/53/40 (vol. I), p. 17, para. 83; as to flogging, amputation and stoning in the Sudan, see ibid., p. 23, para. 120. See also questions asked with regard to Australia, in UN doc. GAOR, A/38/40, p. 29, para. 144; and, as to Saint Vincent and the Grenadines, GAOR, A/45/40 (vol. I), p. 61, para. 280. 217 Eur. Court HR, Case of Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A, No. 26, p. 7, para. 10. 218 Ibid., p. 17, para. 35. 302 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers