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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 30 January 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 5


O’Keeffe accepts Taoiseach’s apology and says ‘please act’ (The Irish Times) - "Louise O’Keeffe has accepted an apology made by Taoiseach Enda Kenny for the abuse she experienced as a schoogirl, and has called on the Government to act quickly to protect other victims like her. Ms O’Keeffe won a landmark legal challenge against the State this week after the European Court of Human Rights ruled that the Government failed to protect her from sexual abuse she suffered in school in Cork."
Article 3 (prohibition of inhuman or degrading treatment) - In the case of O’Keeffe v. Ireland (Grand Chamber judgment) the Court held that the structure of primary education in Ireland in the 1970s failed to protect the applicant (a schoolgirl) from sexual abuse by her teacher. The case concerned the question of the responsibility of the State for the sexual abuse of a schoolgirl, aged nine, by a lay teacher in an Irish National School in 1973. The Court found that it was an inherent obligation of a Government to protect children from ill-treatment, especially in a primary education context.   That obligation had not been met when the Irish State, which had to have been aware of the sexual abuse of children by adults prior to the 1970s through, among other things, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to National Schools, without putting in place any mechanism of effective State control against the risks of such abuse occurring:
“The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (National Schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational Managers (paragraph 163 above). The consequences in the present case were the failure by the non-State Manager to act on prior complaints of sexual abuse by LH, the applicant’s later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in that same National School. (-) In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School.”
Judge Ziemele expressed a concurring opinion. Judges Zupančič, Gyulumyan, Kalaydjieva, de Gaetano and Wojtyczek expressed a joint partly dissenting opinion; and, Judge Charleton expressed a dissenting opinion. They state:
    “6.  We cannot emphasise enough the fact that the complaints of insufficient protection and insufficient prevention of abuse on the part of the State could be examined by this Court only as a result of the authorities’ prompt response to reports of abuse made more than twenty years after the events. It is, indeed, doubtful whether such a prompt and effective response would have been equally available in the legal systems of all States Parties to the Convention, and whether the lapse of time would not have prevented, through extinctive prescription, other domestic authorities from imposing the measures described above as a reaction to complaints. In our view these measures constituted sufficient protection for the applicant’s rights under Article 3 of the Convention. The fact that an appropriate and prompt reaction was provided in the case only after 1995 – despite the lapse of twenty years – cannot legitimately be turned into a nunc pro tunc instrument of analysis for the purposes of declaring admissible the complaints against the respondent State. These are our reasons for disagreeing with the majority on the question as to the admissibility of the complaints.
    7.  We also regret being unable to follow the majority in their analysis and conclusions as to the scope of the positive obligations of the State in the circumstances of the present case. These positive obligations have to be construed with due consideration to the different values and rights protected by the Convention. According to the Preamble to the Convention, fundamental freedoms are best maintained in an effective political democracy. The notion of a democratic society encompasses the idea of subsidiarity. A democratic society may flourish only in a State that respects the principle of subsidiarity and allows the different social actors to self regulate their activities. This applies also to the domain of education. Legislation pertaining to private education should respect the legitimate autonomy of private schools. Article 2 of Protocol No. 1 guarantees the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. It is clear that the democratic State has to respect the education choices of the parents as well as the parents’ primary responsibility for the development and well-being of their children.
    8.  The interpretation of the Convention and the understanding of the scope of State obligations that it imposes have evolved considerably since the Convention’s entry into force. This means that the relevant facts occurring in 1973 may not be legitimately examined in terms of standards attained subsequently. These facts should be assessed in the light of the Convention as understood at that time and in the context of international law as in force at that time. The same principle applies to State obligations. The scope of State obligations in 1973 should be assessed in the context of international law as is stood at that time. In this regard the majority attempts to demonstrate (in our view, and with all due respect, in a strained way) that a positive obligation to protect, and prevent the ill-treatment of, children at school through an appropriate framework of regulations encouraging complaints was clearly established under the Convention in 1973. There is, however, no relevant case-law which supports this view. The Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (23 July 1968, Series A. no 6) pertains to a completely different question and order of ideas, namely “the right to be educated in the national language or in one of the national languages, as the case may be”, and is not related to the right of children to protection against ill-treatment. All the other cases cited in the present judgment were determined many years after the abuse of the applicant in 1973.
    9.  We disagree with the retrospective application of the present-day understanding of positive obligations of the State to a situation obtaining about forty years ago. It is Kafkaesque to blame the Irish authorities for not complying at the time with requirements and standards developed gradually by the case-law of the Court only in subsequent decades.”
Article 2 (right to life) - In the case of Camekan v. Turkey the Court held Turkey responsible for a significant delay in criminal proceedings and found that the authorities failed to fulfil their obligations.  The case concerned an incident that occurred when the applicant was arrested at night, involving a shoot-out with the police in which one person was killed and two others, including the applicant, were injured. The first-instance court, without acquitting the police officers involved in the case, found that they had acted in self-defence and granted them a discharge. The applicant appealed on points of law.The Court took the view that the use of force had not been excessive. However, having regard to the significant delay in the criminal proceedings, which were still pending before the Court of Cassation, it found that the Turkish authorities had not acted sufficiently quickly or with reasonable diligence.
    “51.  Dans la présente affaire, la Cour note que les autorités ont bien mené une enquête. En effet, la police d’Istanbul a ouvert une enquête immédiatement après l’incident et plusieurs mesures ont été prises pour préserver les moyens de preuve sur les lieux. Ainsi, des preuves matérielles ont été recueillies, des croquis ont été dressés et des prélèvements sur les mains des suspects ont été réalisés. De plus, une procédure pénale, toujours pendante devant la Cour de cassation, a été engagée contre les policiers impliqués dans l’incident.
    52.  Le requérant reproche aux autorités nationales de ne pas avoir réalisé une reconstitution des faits sur les lieux de l’incident. En outre, selon lui, la procédure pénale engagée contre les policiers n’était ni prompte ni suffisamment rapide puisqu’elle a commencé le 24 novembre 2001 et que la cour d’assises a rendu son arrêt le 24 mai 2012 – soit onze ans et demi après les faits –, de nombreux ajournements ayant été prononcés en vue d’entendre l’accusé A.M.
    54.  S’agissant de l’allégation du requérant portant sur la célérité de la procédure engagée contre les policiers, la Cour remarque d’emblée la durée excessive de la procédure déclenchée à la suite de l’enquête : environ onze ans et demi après les faits, le 24 mai 2012, la cour d’assises a rendu son arrêt et, treize ans après les faits, cette procédure demeure toujours pendante devant la Cour de cassation.
    À cet égard, la Cour observe que le 24 novembre 2001, soit un an après le dépôt d’une plainte, le parquet d’Istanbul a engagé une action pénale contre les policiers. Au cours de la procédure devant la première instance, elle relève que la cour d’assises ne semble pas avoir été particulièrement active, dans la mesure où elle a tenu au total 30 audiences, c’est-à-dire en moyen moins de trois par an. Par ailleurs, elle note que de nombreuses audiences ont été reportées à cause de l’absence des avocats des accusés et en particulier pour entendre l’un d’entre eux, à savoir A.M. Ce dernier n’a pu être entendu qu’à l’audience du 29 mars 2010, soit environ neuf ans et demi après les faits.”

Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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