CONCURRING OPINION OF JUDGE JAMBREK

1. I agreed with the Court’s unanimous conclusion that Article 6 § 1 of the Convention is applicable to the applicants’ claim and with the reasons given in the judgment in support thereof.

2. However, in my opinion, a more extensive interpretation of the term “civil rights and obligations” than the one applied by the Court in this case and in its case-law in general, would only require the Court to be satisfied that a right existed under domestic law – in the instant case, a right derived from the general tort of negligence or the duty of care owed by the police to the plaintiff. The only condition for the Court’s recognition of a right as a “civil” right, thereby guaranteeing an applicant the right of access to a domestic court as protected by Article 6 § 1, would be that the right at issue is recognised in the national legal system as an individual right within the sphere of general individual freedom. Seen in these terms, the right of everyone to a fair trial by a court of law would also protect the individual in his or her relations with the authorities of the State.

3. Had the Court taken this interpretation of the term “civil rights” as its starting-point, it would not have been necessary for it to examine in the instant case whether the exclusionary rule imposed on the exercise of the right operated in an absolute manner or whether it allowed the domestic courts to make a considered assessment as to whether a particular case should be allowed to proceed to a consideration on the merits before a domestic court and thus guaranteeing a plaintiff access to a court for this purpose (see paragraph 138 of the judgment). Nor would it have been necessary for the Court to establish whether the applicants could arguably claim that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule in the Hill case (see paragraph 139 of the judgment).

4. My reasoning has been informed by the dissenting opinions of Mr Melchior and Mr Frowein in the decision of the European Commission of Human Rights in the Benthem case (Article 31 report of 8 October 1983) and by Judge van Dijk’s chapter on “The interpretation of ‘civil rights and obligations’ by the European Court of Human Rights – one more step to take” in Franz Matscher and Herbert Petzold (eds.), Protecting Human Rights: The European Dimension – Studies in Honour of Gerard J. Wiarda , Köln, Carl Heymanns Verlag KG, 1988, pp. 131–43.

5. In the Sporrong and Lönnroth v. Sweden case (judgment of 23 September 1982, Series A no. 52), the Court ruled that, since the applicants’ case could not be heard by a tribunal competent to determine all the aspects of the matter, there had for that reason been a violation of Article 6 § 1 of the Convention (p. 31, § 87). In its Golder v. the United Kingdom judgment (21 February 1975, Series A no. 18) the Court also stressed (p. 17, § 35) that the guarantees embodied in Article 6 § 1 of the Convention could be frustrated by national legislators if the right to a court were not considered to be implied in that provision:

“... a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government.”

The situation as described in the facts of the present case comes close to the concerns expressed by the Court in this quotation.

6. I therefore also agree with Judge van Dijk’s assessment that if the Court were to take this additional step, and thereby no longer restrict the meaning of “civil rights and obligations” to “private rights and obligations”, the certainty and foreseeability of its case-law would be enhanced. Furthermore, if “civil rights and obligations” were to be understood as “all those rights which are individual rights under the national legal system and fall within the sphere of general individual freedom” (see, supra , the dissenting opinion of Mr Melchior and Mr Frowein in the Benthem case), the Court’s case-law would conform better to the object and purpose of Article 6 and of the Convention as a whole, that is to say respect for the requirement of the rule of law as interpreted by the Court in, for example, the Klass and Others v. Germany case (judgment of 6 September 1978, Series A no. 28) wherein it held (pp. 25–26, § 55):

“The rule of law implies, inter alia , that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.”

PARTLY dissenting, PARTLY concurring OPINION OF JUDGE DE MEYER joined by judgeS lopes rocha and casadevall

In this sad case there was enough evidence that for several months before 7 March 1988 the authorities of the respondent State were well aware of the strange and worrying behaviour of Mr Paget-Lewis. Both ILEA [1] and the police [2] knew, at least since the spring of 1987 [3] , that he was obsessed with Ahmet Osman. They knew that he was harassing the Osman family and the Green family [4] , and that he was increasingly threatening them as well as Mr Perkins [5] . They knew that some harm had already been caused [6] . From December 1987 they could have had hardly any doubts that further, more serious, harm was to be foreseen [7] .

They took, however, almost no action to avert impending danger and to protect those concerned [8] .

They should have taken Mr Paget-Lewis into custody before it was too late in order to have him cared for properly. Instead they let things go until he killed two persons and wounded two others.

Mr Paget-Lewis himself asked the police arresting him why they did not stop him before he acted as he did and reminded them that he had given all the warning signs [9] . He was right.

In my view, therefore, the authorities of the respondent State, by failing to do what they should have done [10] , have violated the applicants’ right to life and also their right to private and family life.

There was of course also a violation of the applicants’ right to a court, since the Osmans were denied any possibility to have their claims concerning the failures of the police properly examined by a tribunal. Whether or not they could rely on any substantive right thereto in domestic law is irrelevant, since they were asserting that they were the victims of a violation of fundamental (and therefore also civil [11] ) rights, which had to be secured to them under the Convention [12] , notwithstanding anything to the contrary in domestic law or practice, and since their right to have their case heard in court was also such a right [13] . It was likewise irrelevant whether the immunity of the police was or was not absolute, since the very principle of such immunity is not acceptable under the rule of law. The refusal to consider the applicants’ action was therefore an obvious denial of justice [14] .

NOTES

partly DISSENTING, partly CONCURRING opinion of judge lopes rocha

( Translation )

I regret that I am unable to share the majority’s view that there has been no violation of Articles 2 and 8 of the Convention.

My interpretation of the facts – which is the same as Judge De Meyer’s – leads me to conclude that the police underestimated the danger Mr Paget-Lewis presented for the life and physical integrity of Mr Ahmet Osman and, in all probability, of his close relatives.

In my opinion, it is not possible to say, as the Government did, that there was no causal link between the failure to take preventive action, of which the authorities are accused, and the events that occurred.

A quite different approach is required to determine liability for an omission from that required to determine liability for an act. The former must be determined according to generally accepted rules. It has to be decided whether the assault originated from the failure to take a particular measure or measures where the assailant’s previous behaviour already pointed to a likelihood that he would act aggressively towards someone of whom he was particularly fond.

In the instant case, there was strong evidence of aggressive behaviour on the part of Mr Paget-Lewis suggesting that at the first opportunity he would act violently. It should not be forgotten that he displayed rather strange traits of personality and was known to the police, although there was some doubt over whether he was homosexual.

Given, too, the professional experience one is entitled to expect of them, the police could legitimately be required to exercise caution and to take measures to protect the people at risk. Failure to take such measures renders the police and the State concerned liable. There has therefore been a breach of the aforementioned Articles.

[1] Notes by the Registrar

. The case is numbered 87 / 1997 / 871 / 1083 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Hungerford was the scene of a 1987 massacre in which a gunman killed sixteen persons before committing suicide.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.

[1] . The management of Homerton House School noticed since 1986 Mr Paget-Lewis’ “attachment” to Ahmet Osman (Government’s memorial, § 1.5) and they were informed in January 1987 that he was harassing Leslie Green (ibid., § 1.7). They viewed the events seriously (Commission’s report, § 96 (b) and investigated the matter in March 1987. Mr Prince’s letter of 1 May 1987 to Mrs May (Annex A to applicants’ memorial, no. 4, p. 17) shows that the problem was known at the headquarters of ILEA before May 1987.

[2] . Mr Prince met with PC Williams on 3, 9, 13 and 17 March 1987 (see the extracts of his diary, Annex A to applicants’ memorial, no. 1, pp. 1–10). The Government admit that, on these occasions, “no doubt the substance of the concerns was made known to PC Williams” (Government’s memorial, § 1.13).

[3] . Commission’s report, § 96 (a)–(b).

[4] . Ibid., §§ 20–25.

[5] . The graffiti incident, the theft of the files and Mr Paget-Lewis’ change of name occurred already in March-April 1987 (ibid., §§ 27, 28, 29 and 96 (c)). Then followed, in May ‑ November 1987, the “vandalising attacks” on the home and car of the Osman family, for which “there was no doubt in everybody’s mind he was in fact responsible” (ibid., §§ 32, 33, 37, 39 and 96 (d), Government’s memorial, § 1.42, and Detective Sergeant Boardman’s memo of 16 December 1987, Annex D to Government’s memorial, p. 5, § 18), and also on the Green family (Annex A to applicants’ memorial, no. 7, pp. 24–26, and Annex B to Government’s memorial, pp. 37–38), on 7 December 1987 the ramming of the van in which Leslie Green was a passenger and Mr Paget-Lewis’ statement to Mr Prince that “in a few months” he would “be doing life” (Commission’s report, §§ 41 and 96 (e), Annex A to applicants’ memorial, loc. cit., and Annex B to Government’s memorial, pp. 41–42), on 15 December 1987, at the meeting with Mr David and Mrs May, Mr Paget-Lewis’ saying that he would “not do a ‘Hungerford’ in a school”, but “see Perkins at home” (Commission’s report, §§ 47 and 96 (f), and Annex A to applicants’ memorial, no. 8, pp. 27–29), on 18 December 1987 his disappearance from school (Commission’s report, §§ 53 and 96 (g)), between January and March 1988 his roaming around and being involved in “a number of accidents” (ibid., § 58), and finally on 1, 4 and 5 March 1988 his presence in a crash helmet near the applicants’ home (ibid., §§ 60 and 96 (j)). All these facts were known to the police before 7 March 1988.

[6] . Commission’s report, §§ 32–33, 37, 39 and 41. See also Mrs Green’s statement to Detective Sergeant Boardman on 9 December 1987 (Annex B to Government’s memorial, pp. 37–38).

[7] . Commission’s report, § 47. See the ILEA memorandum dated 15 December 1987 (Annex A to the applicants’ memorial, no. 8, pp. 27–29) relating the meeting of Mr Paget-Lewis with Mrs May and Mr David. According to that document, Mr Paget-Lewis had “spoken in the following terms: He feels in a totally self-destructive mood … it is all a symphony and the last chord has to be played … he is deeply in debt and is selling all his possessions … Nick Perkins is the cause of all his troubles, has said he is sexually deviant … He wouldn’t do a ‘Hungerford’ in a school, but will see Perkins at home”. The memorandum adds that this information was passed on to the police. See also the statement of Mr Prince to Detective Sergeant Boardman on 22 December 1987 (Annex B to the Government’s memorial, pp. 41–42). According to that statement, Mr Paget-Lewis had said, immediately after the collision of 9 December 1987: “I’m not worried about all this because in a few months I’ll be doing life.” After the shootings, he recalled, in one of his statements to Detective Sergeant Boardman on 8 March 1988, that he had earlier warned the police (PC Adams) that “there was a danger of me doing something criminally insane unless things were mended between me and the Osmans”. (Annex B to Government’s memorial p. 77). It is rather obvious that these utterances ought to have been taken more seriously.

[8] . In December 1987, after the van incident, the police decided to arrest Mr Paget-Lewis, but, having not found him at his home, they did not even try to find him at his school before he disappeared. They took no further steps to trace him, except for asking ILEA to request him to contact Detective Sergeant Boardman and putting him in January 1988 on their National Computer. It is most surprising that they could not get hold of him whilst he was travelling around in hired cars and getting involved in several accidents (Commission’s report, §§ 50, 52, 57, 58 and 96 (h)–(i)).

[9] . Commission’s report, § 62. See also his statement to Detective Sergeant Boardman on 8 March 1988 (Annex B to Government’s memorial, p. 98).

[10] . A few months ago, in another case (McLeod v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-V, p. 1964), the representative of the Government of the United Kingdom observed that “there is a pressing social need to prevent disorder or crime” ant that more “particularly, in circumstances where there is a genuine and reasonable belief that there is a risk of disorder or crime, there is then a pressing social need to take steps to prevent it”. He added that “it is much more desirable to prevent such disorder or crime than to await its development and only then take steps to contain it” (see the verbatim record of the hearing held on 18 May 1998, Doc. Cour/Misc(98) 355, at p. 20).

[11] . See, mutatis mutandis , the Aerts v. Belgium judgment of 30 July 1998, Reports 1998 ‑ V, p. 1964, § 59, and my separate opinion concerning the Pierre-Bloch v. France case, judgment of 21 October 1997, Reports 1997-VI, p. 2228.

[12] . Articles 1, 2 and 8 of the Convention.

[13] . Articles 1 and 6 of the Convention.

[14] . The dismissal of their civil action was also a violation of Article 13 of the Convention, as they were thereby denied what would have been “an effective remedy before a national authority” and it has not been shown, or even alleged, that any other remedy of that kind was available. Such a remedy had indeed to be ensured to them “notwithstanding that the violation ha[d] been committed by persons acting in an official capacity”.