FIFTH SECTION

DECISION

Application no . 51083/09 Raymond REILLY against Ireland

The European Court of Human Rights ( Fifth Section ), sitting on 23 September 2014 as a Chamber composed of:

Mark Villiger , President, Ann Power-Forde , Ganna Yudkivska , Vincent A. D e Gaetano , André Potocki , Helena Jäderblom , Aleš Pejchal , judges , and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 15 September 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Raymond Reilly, is an Irish national who was born in 1966 and lives in Dublin. He is rep resented before the Court by Mr C. Crowley, a lawyer practising in Dublin. The Government were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows.

A. The circumstances of the case

1. Background

2 . The applicant joined the Army in 1985 at the age of 18 and served until the expiry of his contract in November 1997. He had competed internationally as a boxer. He served in the Artillery Corps and held the rank of gunner . He married in 1989 and had three children with his wife.

3 . The applicant claims that he was the victim of a series of sexual assaults (groping and inappropriate touching) by his superior officer, PD, who held the rank of Sergeant Major. This began in 1989 at a time of alleged personal difficulty for the applicant. At this time, he had been involved in a hit-and-run accident for which he was prosecuted as well as for driving under the influence of alcohol. The abuse typically involved PD touching the applicant intimately, rubbing his own private parts against the applicant ’ s body and physically forcing the applicant ’ s hand to touch PD ’ s private parts, all of this through clothing. The abuse occurred in PD ’ s office and it continued until about 1995.

4 . The applicant claims that the Defence Forces could not have been unaware of PD ’ s proclivity to interfere with his subordinates. He alleges that he and at least one other gunner were subjected to protracted ridicule in the mess (canteen) as the officer ’ s “bum boy”. He did not at any time during his military career make a complaint about PD ’ s conduct. This, he claims, was partly out of shame and partly because PD had, allegedly, threatened that he would be locked up if he reported the abuse and that the word of a gunner would not be taken over that of a Sergeant Major. In the applicant ’ s view, the culture in the Defence Forces at that time was against making complaints. In the applicant ’ s subsequent proceedings against the army, his wife gave evidence to the High Court that his behaviour at that time began to deteriorate and that he had changed from being a model father and husband to being unrecognisable. In or about 1992 the applicant and his wife separated.

2. The allegations against P D by other soldiers.

5 . After the applicant had left the army, two other complaints were made against PD by two soldiers, CP and RM.

6 . In October 1998 CP filed a complaint of sexual assault by PD which had allegedly occurred some days earlier during a room inspection and he sought to be discharged from the army because of it. The complaint was investigated by the military police who interviewed CP, PD and another officer involved in the room inspection.

7 . In their investigation report, dated 9 October 1998, the military police noted that while CP claimed that the incident with PD was the reason for his seeking discharge he had, in fact, already been seeking civilian employment for some months before that time. It also noted CP ’ s disciplinary record. It noted Captain S ’ s testimony that when he left the room the door was ajar and that PD had followed him out of the room approximately 30 seconds later. It had regard to the fact that PD had a service record of 40 years and had never before been the subject of any allegations. The report concluded that it had not been possible to prove CP ’ s allegation. PD went on leave after this investigation and then decided to retire, leaving the army in April 1999.

8. In December 1998 RM confided in two colleagues that he had had similar experiences to CP, but he declined to identify the person responsible. T he colleague s – both of whom later gave statements to the police – raised their concerns with Captain S. He undertook to deal with the complaint and arranged for RM to meet with the army psychiatrist. He also asked if PD was involved but RM was unwilling to discuss this and did not make any complaint against PD at this time.

9 . At the end of 1998, the applicant happened to meet a former colleague of his, JW, who told him about the allegations that had been made concerning PD. The applicant then told him of his experience with PD but swore him to secrecy. JW , nevertheless, raised the matter immediately with his superior officer, Lieutenant Colonel C.

3. Police investigation

10 . In December 1999 RM made a statement to the police about sexual assaults committed against him by PD the previous year.

11 . The police commenced an investigation during which they became aware of the allegations made by CP and the applicant. They took statements from all three men between March and August 2000. The police also interviewed several military officers and took statements from the two soldiers who had brought RM ’ s situation to the attention of the military authorities , as well as from Captain S.

12 . The police interviewed PD on 19 September 2000. He denied the allegations. Two days later, however, during a second interview, he confessed to having sexually assaulted RM. He was then arrested. He continued to deny the allegations made by the applicant and by CP.

13 . In February 2001 the investigation file was submitted to the Director of Public Prosecutions (“DPP”) in respect of the three complainants. In August 2001 the DPP directed PD ’ s prosecution in respect of RM ’ s complaints and sought further information from the police concerning the applicant and CP. The information was furnished in January 2002. The initial decision of the DPP was not to prosecute PD in respect of complaints made by the applicant and CP. However, upon a request by the police the file was reviewed by the DPP who then issued a new direction in October 2002 to prosecute PD in respect of the applicant ’ s complaints.

4 . Criminal proceedings as regards RM

14 . In December 2002 PD pleaded guilty to six charges of sexual assault up on RM. On 9 April 2003 he was formally convicted and sentenced to 2 years ’ imprisonment, suspended on condition that he enter a bond and agree to be of good behaviour and keep the peace for 5 years. He was also fined EUR 15,000 , which was to be paid to RM, and was placed on the register of sexual offenders.

5 . Criminal proceedings as regards the applicant

15 . Following a criminal trial in July 2003, the jury acquitted PD in respect of certain charges and it failed to reach a verdict on other counts. A nolle prosequi (withdrawal of charges) was then entered in January 2004 in respect of the charges on which the jury had failed to reach a verdict.

6 . Civil proceedings by the applicant

16 . In June 2001 the applicant issued civil proceedings for damages against PD , the Minister for Defence, Ireland and the Attorney General. He was legally represented and his claim against PD was settled in April 2006 in the sum of €5,000 with out admission of liability.

17 . The applicant ’ s claim against the remaining defendants (the “State defendants”) was heard by the High Court and was based on two alternative grounds. Firstly, he alleged that the State was vicariously liable for the actions of PD. Secondly, he alleged that the State was directly negligent in that he claimed it had knowledge of PD ’ s behaviour such as would have alerted a reasonable person to take steps to inquire into or prevent the activities of PD and that it had failed so to do. The trial commenced in the High Court in October 2006 and heard numerous witnesses over the course of nine days.

(a) High Court judgment

18 . T he High Court (Johnson P.) gave judgment on 30 July 2007, dismissing the applicant ’ s claims.

19 . The court accepted that, on the civil standard of proof, that is, on the balance of probabilities, P D had assau lted the applicant causing post ‑ traumatic stress disorder. It then considered whether the State should be held vicariously liable for this. The High Court reviewed all the relevant legal authorities that were opened to it on the question of vicarious liability, including Irish, Canadian and British jurisprudence and it found:

“All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability.”

20 . The High Court then considered the separate question as to whether the State had been directly negligent and addressed this issue in terms of whether the authorities had been or should have been aware of PD ’ s behaviour at the relevant time. It stated:

“ ... [ T]he evidence of the [applicant] and many of his witnesses is that there was general chat on a continual basis about [PD ’ s] activities, that it was well known and that it was the chat of the barrack room and the camp.

This has been completely denied by all of the defendant ’ s witnesses. Whereas I grant there is a distinction in rank between the [applicant ’ s] witnesses and the defendant ’ s witnesses, I came to the conclusion that all of them appear to be attempting to tell the truth.

Therefore, I am satisfied that there was banter, possibly name calling and certainly general slagging, I think would be the correct way of putting it, and, though that may have been prevalent in the mess room at times, none of it was taken sufficiently seriously by any of the men, the NCO ’ s and any other officers who may have heard it to be considered anything other than of a humorous nature.

It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980 ’ s and early 1990 ’ s, at a time when the antenna of the ordinary reasonable person was far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever.

I am quite satisfied that had any of the NCO ’ s or others, any real apprehension regarding the behaviour of [PD], they would have given notice of such apprehension one way or another through the preferred route as laid down in the Army code or otherwise. I am reinforced in this view by the speedy action of [JW], when informed by the [applicant] of the events which occurred, he immediately repeated to the Superior Officers and laid the [applicant ’ s] claim before them, despite the fact that he had been bound by the [applicant] to secrecy. It is for this reason, I have come to the conclusion that, on the balance of probabilities, the [applicant] failed to discharge the onus of proof on him that, at the time of the incidents when the subject matter of these proceedings occurred, the level or content of the activities which were described in the mess room, in the bar and in the canteen were such as would have alerted a reasonable person and cause them to take steps to either enquire into or prevent the activities of [PD].”

(b) Supreme Court judgment

21 . The applicant appealed to the Supreme Court, which dismissed the case in a judgment of 24 March 2009.

22 . On the negligence claim, the Supreme Court (Kearns J) reviewed the evidence and did not interfere with the findings of fact made by the High Court. The court acknowledged the evidence in support of the applicant ’ s claims that the proclivities of PD were known in army circles and that there was no satisfactory method of bringing a complaint. It also acknowledged the large number of witnesses for the defendants who had contested these claims , meaning there was also ample evidence against the applicant ’ s case. The court referred to the various avenues of complaint that had been available to the applicant and the persons to whom he could have turned, in confidence, for help, such as the army chaplain or the social worker. The court recalled that its appellate role meant that it should only ensure that the primary findings of fact at trial and the inferences drawn from them were supported by the evidence. The trial judge had heard the witnesses directly and could assess their demeanour. He had been entitled to have regard to the fact that the applicant had never made a complaint about PD, even though he had used the complaints procedure regarding another unrelated matter, thus demonstrating that he was aware of the existence of a complaints procedure and had been ready to use it. The evidence did not support the claim that soldiers were reluctant to make complaints or that the army was unreceptive to them. An expert witness had confirmed that the complaints procedures in place at that time in the army were good and sufficient by the standards then prevailing. The court also agreed with the trial judge ’ s remarks about the importance of considering the issues in the light of the times as they then were and observed that it was “ a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five years ago ” .

23 . On the question of vicarious liability, the Supreme Court noted that the applicant did not challenge the correctness of the legal principles as emerged from the case law and as outlined by the High Court. He had only challenged that court ’ s application of those legal principles. The applicant had argued that, while his case did not concern a child, the environment of the armed forces was such that the normal rules of adult interaction did not apply given, inter alia , disparities in rank. The Supreme Court , however, concluded that the employment relationship between the applicant and the Defence Forces did not support finding of vicarious liability. It stated:

“While undoubtedly [PD] exercised a supervisory and disciplinary role where the [applicant] was concerned, he was not in the same position as a school teacher or boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as, for example, might arise if [PD] had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in the relationship between the [applicant] a nd [PD] nor was there any quasi ‑ parental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee.”

24. The Supreme Court went on to distinguish the relationship in issue in the applicant ’ s case from that of a teacher and a child referring back to the case of O ’ Keeffe v. Hickey [2008] I.E.S.C. 72. It held that while the O ’ Keeffe case had involved a vulnerable child who was sexually abused by a teacher at school, the facts of the relationship between the parties in the instant case could hardly be more different. The applicant in this case was at all material times an adult. He had elected to accept the rigours, the discipline and the camaraderie associated with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in order to function. A wide extension of liability would undermine the whole operational basis of any army.

25. The Supreme Court concluded that the applicant ’ s case fell short by a considerable margin of establishing the prerequisites for a finding that the State defendants should be held vicariously responsible for the criminal activities of P D.

7 . Other proceedings

26. According to the Government, the applicant took legal proceedings against the army on two previous occasions while he was serving member of the Defence Forces. The first was a claim to the High Court for damages for personal injuries (deafness) for which he was awarded compensation. Some 17,000 military personnel had sued for damage to hearing caused by inadequate protective material. He also brought a personal injuries action against the Defence Forces arising from a road traffic accident and the case was settled.

27 . The applicant submitted a claim for compensation to the Criminal Injuries Compensation Tribunal (“CICT”) in respect of the injury caused by the sexual assaults of PD. His claim was rejected in April 2010 on the grounds of delay in reporting the crime. The applicant appealed. A hearing took place on 16 April 2012, leading to a decision of 24 May 2012 in which he was awarded €37,870 compensation .

B. Relevant domestic law and practice

1. Complaints p rocedures in the Defence Forces

28 . A general forma l complaint system was established by section 114 of the 1954 Act:

“(1) If an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer ’ s satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon.

(2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon.

(3) Every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of, and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of.”

29 . The 1954 Act also provided for the trial of military and criminal charges by court-martial including within 3 months of the retirement from the Defence Forces of the accused (section 120 of the 1954 Ac t). Section 140 of the 1954 Act provided that anyone subject to military law who ill ‑ treated any subordinate was guilty of an offence against military law and would, on conviction by court-martial, be liable to imprisonment for a term not exceeding 2 years or to any less punishment awardable by a court ‑ martial.

30 . The Defence Forces Regulations A7, adopted by the Minister under the 1954 Act, provided general guidance to commanding and other officers as to their responsibilities regarding discipline and misconduct. It also set out (section 11C) a procedure for the submission of grievances during the general annual inspection of the military unit by a General Officer Commanding. Notice of such inspections was given in advance with a reminder of the opportunity to bring forward any complaints.

31 . In early 1996 the “Administrative Instruction A7” was adopted pursuant to Regulations A7. It was headed “Interpersonal Relationships in the Defence Forces” and it codified detailed procedures for making complaints in relation to unacceptable interpersonal behaviour to a company commander. Paragraph 102 of that Instruction accepted that the requirement to obey all lawful orders had to be counterbalanced by ensuring respectful and professional treatment and relationships between superiors of subordinates. Paragraph 114 defined what was unacceptable sexual behaviour and gave specific examples including sexual assault and attempting to engage in or engaging in sexual activity by force, coercion or intimidation. Separate provisions governed “sexual harassment” including defining the notion, giving concrete examples and providing particular provisions for complaints having regard to the specific difficulties attached thereto.

2. Vicarious liability

32 . The Supreme Court in the present case summarised the relevant principles applicable to the issue of vicarious liability by listing the factors for establishing whether or not impugned acts were carried out within the course and scope of employment. These principles are set out in the Canadian cases of Bazley v. Curry (1999) 174 D.L.R. (4th) 45; and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71), both of which concerned the sexual abuse of infant children.

33 . In Bazley case, the Supreme Court of Canada noted that the established common-law test was that employers were vicariously liable for employee acts authorised by the employer or unauthorised acts “so connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act”. In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom, the Supreme Court of Canada set out the principles by which the sufficiency of the connection between the employer ’ s creation and enhancement of the risk and the wrong complained of was to be determined. These included:

“(a) The opportunity the enterprise afforded the employee to abuse his or her power;

(b) The extent to which the wrongful act may have furthered the employer ’ s aims (and hence be more likely to have been committed by the employee);

(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers ’ enterprise;

(d) The extent of power conferred on the employee in relation to the victims; and

(e) The vulnerability of potential victims to wrongful exercise of the employee ’ s power.”

34 . The Jacobi case provided two further principles:

“( a ) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.

(b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.”

35 . Both of these cases were analysed by the House of Lords in Lister v. Hesley Hall Limited ([2001] UKHL 22 [2002] 1 A.C. 215 ) and cited by the High Court in the present case as the leading United Kingdom authority on the issue. The plaintiffs in that case were residents in a school owned and managed by the defendants and they had been sexually abused by the warden.

36 . Lord Steyn stated (§ 28 of the judgment):

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden ’ s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present case clearly falls on the side of vicarious liability.”

3 . The CICT

37 . A victim can apply for compensation for injury suffered as a result of violent crime under the statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months but it can be extended, exceptionally. Compensation is paid without any inquiry into liability and on an ex gratia basis. It covers expenses and losses and, since 1 April 1986, it does not include compensation for non-pecuniary loss. The Tribunal will deduct sums received by a victim in compensation from another source including from a civil action against the offender.

COMPLAINTS

38 . The applicant complained that he had been subjected to treatment contrary to Article 3, for which the State was ultimately responsible. He made the same argument regarding Article 8, adding that the treatment he had endured led to the breakdown of his marriage and family life. Under Article 13 in combination with Articles 1, 3 and 8 of the Convention, the applicant argu ed that domestic law had failed to afford him an effective remedy for the violation of his rights under Articles 3 and 8. Finally, he complained under Article 6 that the finding of no vicarious liability on the part of the State was a disproportionate limitation on his access to court.

THE LAW

A. Article 3

39. The applicant alleged a violation of Article 3 of the Convention, arguing that the acts perpetrated by PD constituted “degrading” treatment and that, given the military context in which they had occurred, the State ’ s responsibility under the Convention was engaged.

Article 3 provides:

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

1. Applicability of Article 3

40. T he Government observed that while the domestic courts accept ed that, on the balance of probabilities, the applicant had been sexually abused , this had not been proven to the criminal standard, PD not having been convicted on any of the charges relating to the applicant. Yet it was the criminal standard of proof that the Court applied under Article 3, and th is had not been met in the present case. Furthermore, in his application t he applicant had provided the Court with few detail s concerning the scale and frequency of the abuse . Although PD ’ s behaviour had undoubtedly caused the applicant suffering, it had not been shown to reach the threshold of Article 3. The Government did not accept that the banter of his colleagues had added substantially to the applicant ’ s sense of humiliation. Moreover, a s an adult soldier who resided with his family off-base, his situation was to be distinguished from that of ch ildren or persons in detention.

41. For his part, the applicant submitted that the nature, context, duration and psychological consequences of the abuse were such that it clearly amounted to degrading treatment within the meaning of Article 3. His feelings of humiliation had been aggravated by the ridicule of other soldiers over the situation.

42. The Court recalls that, according to its case-law, it has considered treatment to be degrading when it was such as to “ arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ” (see, among many others, Jalloh v. Germany [GC], no. 54810/00, § 68 , ECHR 2006 ‑ IX ). The Court notes that PD was acquitted on the charges involving the applicant, and the civil proceedings against PD were settled without any admission of liability. The domestic courts ’ rulings on fact in the present case are therefore limited to the High Court ’ s finding that PD had assaulted the applicant. The CICT, which made an award of compensation to the applicant, must have accepted that a crime of violence had taken place. Against this background, the Court accepts that the acts perpetrated by PD , in light of their sexually abusive nature and the hierarchical context in which they occurred, as well as their impact upon the applicant as acknowledged by the domestic authorities , constituted degrading treatment within the meaning of Article 3 of the Convention.

2. The applicant ’ s continuing victim status

43. The Government objected that the applicant was no longer the victim of a violation of Article 3 the High Court having explicitly acknowledged the nature and severity of the acts committed against him by PD, and the repercussions of those acts on the applicant. The State had further acknowledged the wrong perpetrated against the applicant by prosecuting PD. In addition, the applicant had obtained adequate redress. He had chosen to settle his claim against PD and received compensation from him, and had also received compensation from the CICT.

44. The applicant underlined his complaint was not about the personal conduct of PD, who, according to the applicant, could not have paid him commensurate compensation for his abusive actions . Rather the complaint was directed against the State, which he regarded as ultimately responsible under the Convention . However, his claim against the State had been rejected by the domestic courts. It was not addressed by the CICT award, which was on an ex gratia basis and, which, moreover, wa s restricted to reimbursing just the direct pecuniary loss suffered by victims of crime.

45. In view of the conclusion that the Court has reached on the merits of the Article 3 claim, and which is set out below, it does not need to rule separately on the Government ’ s objection regarding the applicant ’ s victim status .

3 . Substantive aspect

(a) The parties ’ submissions

46. The Government denied that the State could be held liable, either vicariously or directly in negligence, for PD ’ s actions. This was not a claim to State immunity from suit. Rather, the domestic courts had applied the standard principles of vicarious liability and negligence and had found that, on the facts of the case, PD ’ s actions could not be imputed to the State. They further found on the evidence adduced at trial that the State had not had sufficient knowledge, actual or constructive, so as to render it liable in negligence. As affirmed by the Supreme Court, the incidents were not committed in the course of employment nor were they within the general scope of PD ’ s official functions and duties. The fact that PD was a military officer was not sufficient, of itself, to attribute liability to the State for acts carried out by him in his personal capacity. The applicant was effectively arguing for strict liability of the State for all acts of civil servants, whatever the circumstances. That was untenable. There was no necessary correlation, as the applicant suggested, between the power of appointment to military rank and a corresponding scope for abuse of that rank, or any consequent responsibility of the Minister for Defence (“the Minister”) for that abuse.

47 . The Government also emphasised certain contextual and factual elements which the Supreme Court found excluded vicarious liability. The applicant was an adult in a hierarchical structure and relationship which carried no inherent risk of sexual abuse that could have alerted the State to the need to monitor or guard against that risk. The relationship of soldier and non-commissioned officer was not, for example, an intimate relationship involving close personal contact or a quasi-parental role. Any analogy with the obligations that would arise in relation to children was misplaced. The applicant was an adult, a professional soldier, a married man and a father. He was a physically strong man. This contrasted, starkly, with a child ’ s unique vulnerability and need for adult protection. Moreover, the applicant had been protected by the army ’ s strict disciplinary code which applied to PD but which he had flagrantly contravened. He had also been protected by a system of reporting and redress that he had chose n not to use.

48 . State responsibility to prevent and/or redress was therefore engaged only to the extent that it would be in any case of ill-treatment by third parties. This entailed an obligation to take reasonable steps to prevent abuses of which the authorities knew or ought to have known. The domestic courts had established on the evidence adduced that the State had had no actual or constructive knowledge of PD ’ s behaviour at the relevant time. Only afterwards had the allegations emerge d .

49 . Finally, the Government argued that the Articles on State Responsibility of the International Law Commission (“ILC”), invoked by the applicant, were not relevant as they concerned only international wrongful acts by State forces.

50. The applicant submitted that the denial of the State ’ s vicarious liability and, thereby, of accountability for most of the acts of State agents, amounted to an immunity from suit of the State. This was incompatible with the Convention since it meant that there was no legal deterrent that would ensure that the State required its agents to observe human rights. This was at odds with the official (military) context of the case and a breach of Articles 4(1) and 7 of the ILC Articles on State Responsibility.

51 . The applicant pointed to specific factors in the present case that leaned towards the State ’ s responsibility under the Convention. In the first place the army had a well-defined command structure extending directly from the Government (the Minister of Defence) to the lowest military rank. The Minister exercised greater control over those forces than any other Minister over any other category of civil servant. In the applicant ’ s view, the Minister ’ s power of appointment to the military hierarchy must be paired with responsibility in law for any abuse of authority carried out by the persons so appointed. Secondly, the abuse had occurred in a military context. The applicant had been under the authority of PD and all of the assaults had taken place in PD ’ s office. Thirdly, while the Supreme Court had contrasted the applicant ’ s position with that of a child, there was a valid comparison to be made based on vulnerability. Given the extensive control and power of PD over his daily work and environment and over his future career, the applicant had been particularly vulnerable to the predations of his superior officer. Finally, while not disputing the need for discipline in the army, this could not justify the exclusion of liability for sexual abuse by an officer against a subordinate: indeed, such responsibility would reinforce discipline.

52 . The applicant also maintained that, in any event, the military authorities could not deny all knowledge of PD ’ s proclivities. Therefore, their failure to react was a breach of the State ’ s positive obligation to protect him from degrading treatment .

(b) The Court ’ s assessment

( i ) Whether the impugned acts can be imputed to the respondent State

55 . Whilst the Court can accept that the conduct of PD was a source of personal distress for the applicant, he was not left without any system of recourse or redress, a point to which the Court shall revert when considering the State ’ s positive obligation. There was in place a formal statutory complaints procedure for dealing with any member of army personnel who ill-treated a subordinate. In addition, the army provided the services of a chaplain and a social worker to whom the applicant could have turned. As noted by the Government, the applicant had, in other contexts, displayed a certain resolve in vindicating his rights vis-à-vis the army by bringing legal proceedings against the Defence Forces on two previous occasions. Regarding his treatment by P D, however, he refrained from making any complaint or from even, unofficially, approaching any person in authority or in a position to help him. As they were unaware of the situation until some years after the applicant had left the army, there is no basis to suspect the military authorities of any acquiescence or connivance. The applicant prayed in aid the ILC ’ s Articles on State Responsibility, but these are not pertinent, concerning as they do internationally wrongful acts.

56 . In the circumstances of the present case, the Court does not consider that the acts of PD can or ought to be imputed to the State.

(ii) Whether there was a failure to protect the applicant

57. The Court will also examine the applicant ’ s complaint from the standpoint of the State ’ s positive obligations under Article 3. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising . However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, with further references, O ’ Keeffe v. Ireland [GC], no. 35810/09 , § 144 , ECHR 2014 (extracts) ).

58 . As found above, the Court does not consider that the applicant ’ s situation was akin to that of a child in terms of vulnerability to the abusive conduct of a person in authority. That said, however, the State ’ s general obligation to guard against ill-treatment certainly applies to its armed forces (see generally Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 23, § 54 ).

59 . The degree to which the authorities knew or ought to have known of the risk posed by PD is of critical importance. The applicant submitted that the ridicule of the other soldiers should have been sufficient to put the military authorities on notice of the situation. That contention was rejected by the High Court. During the nine day trial, a considerable body of evidence led by the applicant and the defendants was heard and assessed, carefully, by the trial judge (see paragraph 2 0 above). The High Court heard testimony about the chat - name calling or general slagging - in the barrack room or camp. It examined many witnesses on both sides. Having assessed all the evidence on this point the trial judge was satisfied that the banter was not considered by anyone who heard it to be anything other than of a humorous nature and was not such as to alert the military hierarchy to the risk posed by PD. The Supreme Court did not call that assessment into question. It was satisfied that the findings of fact and the inferences drawn therefrom by the High Court were supported by the evidence. It is not within the province of this Court to substitute its assessment of the facts for the thorough assessment made by the trial court . As the Court has often stated, the domestic courts are, in principle, better placed to assess the evidence adduced before them (see Murray v. the United Kingdom , 28 October 1994, § 66 , Series A no. 300 ‑ A ).

60. The Court notes the domestic courts ’ observation (at paragraphs 2 0 and 2 2 above) that at the relevant time there was less public awareness of sexual abuse in institutions . It is correct to approach the question of State responsibility from the point of view of the standards of the time in question ( see in the same sense O ’ Keeffe , § 143) , rather than to judge the matter with hindsight . The strongest potential evidence of PD ’ s behaviour – a complaint or statement from the applicant himself – did not emerge until much later on. The fact that in 1996 the Army introduced updated procedures regarding personal behavio u r , including sexual harassment, can be regarded as demonstrative of its ongoing concern to ensure the welfare of army personnel. It cannot be taken to signify actual or constructive knowledge of the specific situation involving the applicant in the preceding years.

61. Accordingly, the Court considers that there is no evidence before it that would enable it to find an operational failure on the part of the State to protect the applicant against the ill-treatment that he suffered. It has no basis for calling into question the domestic courts ’ finding that, at the relevant time, the State neither knew nor ought to have known of the applicant ’ s situation (see O ’ Keeffe , § 148).

62 . The framework of protection that was in place at the relevant time must also be considered (see O ’ Keeffe , § 152) . The allegations about PD clearly involved criminal acts and, once they were reported, he was prosecuted for them. His actions also contravened military law and, had the applicant filed a complaint at the time, P D could have been tried before a court-martial for the statutory offence of ill-treatment of inferiors. The applicant ’ s silence during the years in question excluded that possibility. Furthermore, the applicant had an official complaints procedure at his disposal (see paragraphs 2 8 -3 1 above). A specific policy on sexual harassment was introduced some eighteen mo nths before the applicant had left the army and after the abuse had ended. Recognis ing that making a formal complaint against another person may be stressful, the policy incorporated less formal avenues (advice and assistance from a chaplain, a medical officer, the army psychologist, etc.). Like the domestic courts which took expert evidence on the point, the Court considers that these were reasonable steps taken with a view to prevent ing this particular form of ill ‑ treatment among military personnel. The respondent State cannot be criticized for not having gone further, for example, by including more robust detection and reporting mechanisms as were found to be necessary in the context of children in the particular circumstances of the O ’ Keeffe case (§ 152 of that judgment). The Court underlines the difference between the two cases. In O ’ Keeffe , it identified an inherent obligation on the Government to ensure the protection of schoolchildren though the adoption of “special measures and safeguards” (at § 146). This reasoning cannot be transposed automatically to the present context.

63. Lastly, it is relevant to recall that there was a mechanism in domestic law, i.e. a civil action against the harasser, which made it possible for the applicant to seek full redress for the abusive acts committed against him by another individual.

64. On the facts of this case, the Court cannot conclude that the State failed to take reasonable steps to prevent or detect sexual harassment in the armed forces .

65. It follows that the applicant ’ s complaint under the substantive limb of Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

4 . Procedural aspect

(a) The parties ’ submissions

66 . The Government submitted that the procedural obligation had been fully satisfied. There had been a thorough police investigation into PD ’ s behaviour against the applicant. This had met the requirements of Article 3. The authorities had acted promptly once the situation had been brought to their attention and conducted the process expeditiously. The investigation had been independent and thorough. It had also been effective, in the sense that it was capable of leading to the establishment of the facts of the case and identifying and punishing the person responsible. It had culminated in the trial of PD on charges of indecent and sexual assault against the applicant. The fact that PD was not convicted did not undermine the effectiveness of the investigation.

67 . The Government rejected the idea that the military authorities had failed in their duty to investigate. It was because the applicant never informed the army of the situation that there could not have been an investigation. Nor was there any reason to suspect PD of sexual abuse while the applicant was serving, since the first such allegation was not made until almost a year after he had left the army. As PD had retired from the army some months after the applicant had finally informed another soldier of the abuse, the appropriate authority for investigating the matter was the police. Given that PD committed the acts in his private capacity, there was no duty to hold any wider investigation into sexual harassment in the army.

68 . The applicant argued that the obligation to investigate had not been fulfilled since the military authorities had never formally inquired into PD ’ s behaviour, even after his allegations had come to their knowledge at the end of 1998. The claim that there could be no investigation in the absence of a formal complaint should not be accepted. The army should have been pro ‑ active. The crucial point was that the military authorities had been alerted to the situation but had displayed inertia and passivity. Given the seriousness of the situation, the army should have launched a full investigation to establish how PD could have abused his authority for so long, who else had been abused, why the existing systems had failed to uncover the abuse and how it might be prevented in future.

(b) The Court ’ s assessment

69 . Article 3 requires the authorities to conduct an effective official investigation into alleged ill-treatment inflicted by private individuals, which investigation should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. The investigation should be conducted independently, promptly and with reasonable expedition. The victim should be able to participate effectively. The obligation to investigate arises once a matter has been brought to the attention of the authorities ( O ’ Keeffe , §§ 172-173 , with further references ).

70. In the present case , it was only after he left the army that the applicant gave the first indication of the abuse he had suffered , and even then he swore his former colleague to secrecy, although t he information was relayed to a senior officer. While the applicant considered that the response of the army to his complaint was inadequate, the Court does not deem it relevant for the purposes of examining the State ’ s procedural obligations to distinguish between the steps taken by the military and by the police. As the Government stated in their submissions, the respondent in this case is the Irish State, not its defence forces. Once the police were apprised of the applicant ’ s allegations in August 2000, they investigated them along with the other complaints against PD that had emerged at that time. They presented their report to the DPP and a prosecution ensued. Indeed, the applicant made no criticism of the police investigation or of the criminal trial. The steps taken were clearly capable of establishing the facts behind the applicant ’ s allegations, and, in the event of a guilty verdict, punishing the perpetrator. The fact that PD was not convicted does not detract from the efforts deployed by the State to meet the pro cedural requirements of Article 3, the obligation being one of means, not of result ( Baklanov v. Ukraine, cited above, § 68, with further references). The Court finds that the respondent State did comply with its procedural obligation to investigate the ill-treatment of the applicant.

71 . It follows that the applicant ’ s complaint under the procedural limb of Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

B . Article 8 of the Convention

72. The applicant also complained about a breach of his right to respect for his private and family life including his physical and moral integrity and his right to autonomy. Article 8, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life ... .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... .”

73 . The Government argued, relying on their submissions under Article 3, that this complaint was inadmissible. The applicant underlined the impact on him of the ill-treatment, which had caused him severe psychological and familial difficulties. He criticised the denial of the State ’ s vicarious liability for the acts of PD, and he submitted that the State had failed to protect him from the abuse , and that it had also failed to properly investigate thereafter.

74 . The Court considers that the application does not give rise to issues relevant to the applicant ’ s rights under Article 8 which are substantively distinct from the matters already examined above under Article 3 of the Convention. Accordingly, the Court ’ s conclusions above under Article 3 equally support a finding that there has been no breach of any substantive and procedural obligations implied by Article 8 of the Convention (see Osman , cited above, § 128; Osmanoğlu v. Turkey , no. 48804/99, § 107, 24 January 2008; and Van Colle v. the United Kingdom , cited above, § 108).

75 . It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C . A rticle 13 in conjunction with Articles 3 and 8 of the Convention

76. The applicant also complained under Article 13 that he had no effective remedy for the above-described breaches of Articles 3 and 8 of the Convention. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

77 . The Government considered Article 13 satisfied by the availability of a civil action against PD and against the State, of criminal proceedings as well as of CICT compensation. The applicant maintained that Article 13 required that the State be vicariously liable for the criminal acts of senior officers of the Defence Forces where such actions fell within the context of their professional functions and duties. The CICT was ineffective because, inter alia , it was not competent to address the substance of his claim or the liability of any person or any entity and because the awards were inadequate and paid on an ex gratia basis.

78 . Having regard to the Court ’ s reasoning and conclusions as regards the complaints under Articles 3 and 8, it finds that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see, for example, Lalić and Others v. Slovenia ( dec. ), no. 5711/10, 27 September 2011). It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D . Article 6 of the Convention

79. Finally, the applicant complain ed that the rejection by the State of vicarious liability wa s a disproportionate limitation on his access to c ourt. Article 6, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

80. The Court recalls that no issue arises under Article 6 if the impugned limitation on access is a substantive limitation on the applicant ’ s rights under national law ( Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V). If it is a procedural limitation, the proportionality of that limitation must be assessed ( Osman v. the United Kingdom , cited above, §§ 138-140). Having regard to the well-established case law on vicarious liability in Ireland, as outlined by the High and Supreme Courts in the present case (paragraphs 20 and 24-25 above) , the applicant has not demonstrated that the impugned limitation constitutes anything other than a substantive limitation on his rights under national law.

81 . T he Court would further observe that the domestic courts ’ refusal to hold the State vicariously liable for PD ’ s wrongdoing cannot, as the applicant suggested, be regarded as a form of State immunity from suit. That argument is undermined by the fact that the applicant successfully sued the army on two previous occasions on other grounds (see paragraph 26 above). There was no absolute entitlement for the applicant to succeed in the domestic proceedings in this case . Furthermore, t he finding of the domestic courts in respect of vicarious liability was no more than the application of the standard legal principles that arise in the employment context in order to determine whether, as a matter of domestic law and in light of the facts of the case, liability should attach to the State for the conduct of PD . It did not deprive the applicant access to court.

82 . It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President