FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18727/06 by Emile SZULA against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 January 2007 as a Chamber composed of:

Mr J. Casadevall , President, Sir Nicolas Bratza , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Å ikuta , judges, and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 21 April 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant is British citizen born in 1953 and resident in Glasgow . He is represented before the Court by Mr C. Fyfe, a solicitor practising in Glasgow .

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In September 1964 the applicant was sent to a residential approved school at St Ninian ’ s , Gartmore , by a court for having committed the offence of stealing a tricycle. He remained there until 1966. The school was associated with an order of religious brothers known as the De La Salle Order. Its certificate of approval was granted by the Scottish Education Department.

Throughout his time at the school, the applicant was physically and sexually abused by D.S., a teacher at the school. This included being spanked on the bare buttocks, weekly sexual assaults (usually including D.S. sodomising the applicant) and being regularly beaten with a riding crop or piece of wood by D.S. He was assaulted by other persons at the school including the Headmaster (Brother T.), M.M. (Brother B. ) and C.M. The assaults by the latter included the administering of electric shocks.

In 1996 police enquiries into events at the school commenced. Three individuals, C.M. (born 1919), M.M. (born 1933) and M. (born 1932) were indicted on 27 charges of assault and sexual assault covering a period from 1957 to 1981, involving 20 complainers including the applicant.

In June 2003, the three men were convicted on various charges, including the administering of electric shocks to the applicant, and sentenced to two years ’ imprisonment. The prosecution of a fourth suspect was withdrawn due to the ill-health of the accused.

The applicant had been led to understand that a decision about whether to prosecute D.S. would be made after this trial. At this point, he was informed by the Crown Office that D.S. would not be prosecuted.

By letter dated 5 September 2003, the applicant ’ s solicitor wrote to the Crown Office advising that they had amassed considerable evidence and requesting that they reconsider whether to prosecute D.S. or permit a private prosecution. By letter dated 8 January 2004, the applicant ’ s solicitor forwarded statements from the applicant and twelve other witnesses. This included a statement by J.F. that he had seen D.S. force a boy to perform oral sex and a statement by M.D. that he had witnessed the sexual abuse of other boys.

By letter dated 22 June 2004, the Crown Office advised that they had decided not to prosecute due to a number of factors, including the age of the accused (date of birth 1923), the age of the offences and the state of the evidence.

In March 2005, the applicant presented a petition for judicial review of the decision of the Lord Advocate not to prosecute D.S., invoking inter alia Article 3 of the Convention.

In late December 2005 the counsel for the Lord Advocate provided a detailed explanation for the failure to prosecute D.S., variously at a meeting on 21 December, in written answers to the petition and in a letter from the Crown Office dated 29 December 2001. It was explained that on 8 June 2001 the Procurator Fiscal had written a letter to D.S. ’ s solicitors stating that "after full investigation I have decided not to instigate proceedings." He had taken this position as he was aware only of one allegation of serious sexual assault made by J.F. and this had not been corroborated by any other evidence. The statement of the applicant given to the police on 12 November 1999 had not made allegations of serious sexual abuse or sodomy by D.S. The police had not at that time sent to him the applicant ’ s later statement dated 10 May 2001 which alleged that D.S. had sodomised him. The Crown had taken the view that the letter of 8 June 2001 prevented any future prosecution of D.S. relying on the allegation of sodomy by J.F. While the Crown reviewed the later allegations made by the applicant and the police carried out further investigation, including interview with D.S., it was considered that the allegations of two witnesses were too remote in time from those made by the applicant, that there was insufficient evidence to justify criminal proceedings and that it would not be in the public interest to do so. Since the applicant had not mentioned sodomy in his first detailed statement and only mentioned sodomy in 2001, the inconsistencies would have in any event raised difficulties for the prosecution and there was real doubt that a conviction for sodomy would be obtained. By letter dated 29 December 2005, the Crown advised that it would not consent to a private prosecution of D.S.

The applicant lodged an amendment to his claim, challenging the Crown ’ s contention that the letter dated 8 June 2001 had barred the prosecution of D.S., arguing that it did not specify any charges which D.S. might have faced or formed an unequivocal and unqualified announcement that no proceedings would be taken in respect of any pending charge.

On 28 February 2006, prior to the first hearing in the judicial review proceedings, counsel for the Lord Advocate advised that even if there was no bar to using J.F. ’ s evidence, the Crown would not prosecute as D.S. had first been interviewed by the police in July 2000 and his right to be tried within a reasonable time would prevent a prosecution. In a letter dated 1 March 2006, the Crown Office confirmed that given the antiquity of the offences, the fact that Mr D.S. was 82 years of age, the passage of time since D.S. ’ s interview in July 2000 and his right not to be prosecuted after such a period of time, it was no longer possible to prosecute D.S.

Following advice from senior counsel, the applicant accepted that there was no merit in proceeding with the petition for judicial review. A joint minute was signed agreeing that the petition should be refused.

COMPLAINTS

The applicant complains under Article 3 of the Convention that there has been a failure in the State ’ s positive obligation to ensure the enforcement of the criminal law and provide protection against the sexual and physical assaults perpetrated on him. He complained that there was no prosecution of D.S. as there were delays and failures to proceed without good reason leading to the situation where the Lord Advocate could no longer prosecute without breaching D.S. ’ s Article 6 rights.

The applicant complains under Article 8 that for similar reasons there was a failure to protect his physical integrity.

The applicant complains under Article 13 that he had no effective remedy for the violations of Articles 3 and 8 of the Convention. To be effective the remedy required the prosecution of D.S. which was no longer possible.

THE LAW

1. The applicant complains that there has been a failure to provide him with effective protection from serious physical and sexual abuse due to the decision not to prosecute one of the principal perpetrators of that abuse, D.S. He invokes Articles 3 and 8 of the Convention.

Article 3 of the Convention provides:

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

Article 8 of the Convention provides as relevant:

“1. Everyone has the right to respect for his private ... life, ...”

The Court recalls that the obligation of the 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 together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom , judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002).

Positive obligations on the State are also inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State ’ s margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see X and Y v. the Netherlands , judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 23-24 and 27, and August v. the United Kingdom ( dec .), no. 36505/02, 21 January 2003).

In a number of cases, Article 3 of the Convention has also been held to give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I).

Further, the Court has not excluded the possibility that the State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128,).

On that basis, the Court found in M.C. v. Bulgaria , no. 39272/98, § 153 ECHR 2003 ‑ XII ) that States had a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. These considerations apply equally to serious sexual offences inflicted on children. That said, however, there is no absolute right to obtain the prosecution or conviction of any particular person.

In the present case, it is not disputed that the criminal law prohibited the physical and sexual abuse alleged by the applicant. There is also nothing to suggest that the authorities failed to take seriously the allegations made by him and other erstwhile pupils at the school. Investigation by the police began, following receipt of allegations and four prosecutions were brought, resulting in three convictions. Consideration was also given to prosecution of D.S. and the decision not to prosecute him was reviewed on several occasions. The Court finds no indication that the authorities showed any lack of diligence or expedition such that they effectively prevented any possibility of a prosecution. The Procurator Fiscal informed D.S. ’ s solicitors that he would not bring a prosecution in June 2001 since at that time there was only one uncorroborated allegation of sodomy. While the applicant had given a long and detailed statement which was taken into consideration in that decision, this made no allegation of sodomy. That allegation appeared only in a later statement in May 2001 which was not referred to the Procurator Fiscal until September 2001 after his letter to D.S. ’ s solicitors. While that sequence of events was somewhat unfortunate, the Court does not consider that it discloses any culpable disregard, discernable bad faith or lack of will on the part of the police or prosecuting authorities as regards properly holding perpetrators of serious criminal offences accountable pursuant to domestic law .

On later investigation of further allegations of abuse on boys by D.S., in which context statements were taken from other victims and D.S: was again interviewed by the police, the decision not to prosecute was based on a number of factors, including the lack of sufficient corroborating evidence and the inconsistencies in the applicant ’ s own evidence. The Court does not find that it was the lapse of time alone which prevented the prosecution of D.S. with regard to his own right to trial within a reasonable time under Article 6 of the Convention; by 2006 however this also had become a relevant factor. Nor is there any indication in the present case of any systemic defect or shortcoming in the applicable criminal law which prevented the prosecution of D.S.

The Court concludes that there is no appearance of any failure by the State to comply with the positive obligation effectively and practically to prohibit the impugned conduct in this case. It follows that these complaints are manifestly ill-founded and to be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant, further, invoked Article 13 of the Convention which provides:

“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.”

According to the Court ’ s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant ’ s complaints under Articles 3 and 8 failed as manifestly ill-founded. On the same basis, the applicant has not shown that he has an “arguable claim” and Article 13 is therefore inapplicable to the case. This part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Cour t unanimously

Declares the application inadmissible.

T.L. Early Josep Casadevall Registrar President