CONCURRING OPINION OF JUDGE ZIEMELE

1. I endorse the view of the majority in this case. My disagreement relates only to the reasoning, and more specifically to paragraph 143, which outlines the methodology used in analysing the facts and the submissions of the parties. This case raises the issue of the application of the Convention over time. Recently the Court has been increasingly confronted with this issue (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009, and S.H. and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011 (in the latter case, see also the joint dissenting opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria); see also Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, ECHR 2013). It is indeed high time that the Court acknowledged the issue of time and took care to explain clearly its methodology as regards the application of the Convention over time.

2. The facts giving rise to the domestic proceedings and subsequently the proceedings before the European Court of Human Rights took place in 1973. The domestic proceedings began in 1998, and the applicant lodged a complaint with the European Court of Human Rights in 2009. In this context, the Government rather naturally argued that “[i]t was fundamental to assess the question of the State’s constructive knowledge without the benefit of hindsight: in 1973 awareness of the risk of child abuse was almost non-existent and standards could not be retrospectively imposed on the early 1970s on the basis of today’s increased knowledge and standards” (see paragraph 133 of the judgment).

3. The Court decides to deal with the issue of application of the Convention over time as follows:

“The Court must, as the Government stressed, assess any related State responsibility from the point of view of facts and standards of 1973 and, notably, disregard the awareness in society today of the risk of sexual abuse of minors in an educational context ...” (see paragraph 143).

It should be noted that there are two strands to the Government’s argument. Firstly, the Government say that knowledge and awareness of the issue of child abuse have grown considerably since that time. Secondly, they say that [legal] standards cannot be applied retroactively. In fact, both arguments are perfectly correct. For the Court, however, the task is to establish what the legal standards were in 1973. The Court indeed says as much. What the Court does not address is the commonly accepted evolution of the applicable standards. Nor does the Court explain why the evolution of standards should not be examined since there is a difference, as just suggested, between raised awareness and the evolution of legal standards. It is in this respect that I find paragraph 143 incomplete.

4. Furthermore, the subsequent arguments of the Court concerning Ireland’s obligations in 1973 do not sit very easily with the approach taken. For example, although the two International Human Rights Covenants to which the Court refers were adopted in 1966, Ireland signed them in 1973 and ratified them even later, in 1989 (see paragraph 147). Indeed, it could be said that the case-law referred to was also adopted subsequent to the events in this case (see paragraph 147). These difficulties are directly linked to the approach chosen by the majority in this case.

5. Before explaining what the approach should have been, a few preliminary clarifications are called for. Firstly, this is not a case in which the Court’s jurisdiction ratione temporis is at issue (see, conversely, Janowiec , cited above). Ireland had ratified the Convention by 1973 and thus Article 3 was applicable. It is also clear that the treatment to which the applicant was subjected while attending primary school was contrary to Article 3 at that time . The only disputed issue is whether or not Ireland was under an obligation to put in place mechanisms and safeguards that would have at least minimised the risk of child abuse in primary-education establishments at that time. On this point, the Irish Government’s argument is twofold. Firstly, they argue, there was an adequate mechanism in place. Secondly, it was a historical tradition in Ireland for primary schools to be run by the Catholic Church and there was nothing wrong with this system per se , and in any event the State could not be held responsible for the lack of knowledge of the risks that the system might entail.

6. I certainly agree with the majority that the basic principle of intertemporal law requires that the wrongfulness of an act be assessed in the light of the law applicable at the time the facts occurred. It is however true that the law is not static. It evolves. The International Law Commission (ILC), in its commentary on draft Article 13, noted the following with reference to the Advisory Opinion of the International Court of Justice (ICJ) in the Namibia case [1] : “One possible qualification [of the basic rule of intertemporal law] concerns the progressive interpretation of obligations ... But the intertemporal principle does not entail that treaty provisions are to be interpreted as if frozen in time. The evolutionary interpretation of treaty provisions is permissible in certain cases, but this has nothing to do with the principle that a State can only be held responsible for breach of an obligation which was in force for that State at the time of its conduct” (see ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001).

7. In the ICJ case on Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) , one of the questions was whether the Italian courts were justified under international law in denying immunity to Germany for the acts committed by its armed forces during the Second World War. The International Court of Justice decided that these acts fell outside its jurisdiction ratione temporis . However, with regard to the decisions of the Italian courts which were given much later and thus came within its jurisdiction ratione temporis , the ICJ stated as follows: “The Court must nevertheless inquire whether customary international law has developed to the point where a State is not entitled to immunity in the case of serious violations of human rights law or the law of armed conflict” (see Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening ), ICJ judgment of 3 February 2012, § 83, emphasis added ).

8. I have already pointed out that in 1973 L.H.’s behaviour was clearly contrary to Article 3 of the Convention for the reason that, in accordance with Article 1, Ireland was under an obligation to ensure that children in its territory were not subjected to ill-treatment contrary to Article 3. There was clearly a general obligation. When it comes to its detailed implementation, it is quite true that with time more knowledge is acquired as to how to tackle the problem of child abuse more effectively. The time factor is important as regards making improvements and filling the gaps. At the same time, there is nothing in the field of the rights of the child, as now regulated by the 1989 United Nations Convention on the Rights of the Child in particular, to suggest that a new or particular understanding of the vulnerability of children has come about in recent years. It is true that there have been some important clarifications, especially those developed within the framework of the Committee on the Rights of the Child, and to that extent it can be said that the law has been elaborated upon, but there was really no development of new rights or general obligations to implement those rights over the period concerned in the present case. The 1959 Declaration of the Rights of the Child stated as follows:

“The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”

9. At least since 1959 children have been identified as a group in need of special attention and the principle of the best interests of the child as a guiding light in developing mechanisms for the protection of children has been articulated (see more in paragraph 93 of the judgment). I think it would have been relevant for the purposes of the judgment to refer to post-1973 developments in international human rights law to demonstrate that the underlying principle has been maintained and has given rise to a detailed set of proposals as to how to ensure the rights of children. It is very clear that in itself the principle and the related obligation are not recent. The Court does not apply them retroactively. The law has evolved and has acquired more detail while the general obligation remains the same. The area of the protection of children from abuse matches perfectly the exception referred to by the ILC, and the ICJ Opinion in the Namibia case is the right analogy to follow. It should be recalled that South Africa argued in those proceedings that the Mandate system created under the auspices of the League of Nations did not impose an obligation to eventually grant independence to the colonies (see the Namibia case, cited above, § 50). The ICJ examined the nature of the Mandate system as adopted at the time of the League of Nations and disagreed with the South African interpretation. It further noted that “[e]vents subsequent to the adoption of the instruments in question should also be considered” (ibid., § 51). The ICJ’s ultimate statement on how to take developments in relevant legal concepts into consideration reads as follows:

“All these considerations are germane to the Court’s evaluation of the present case. Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the Court is bound to take into account the fact that the concepts embodied in Article 22 of the Covenant – ‘the strenuous conditions of the modern world’ and ‘the well-being and development’ of the peoples concerned – were not static, but were by definition evolutionary, as also, therefore, was the concept of the ‘sacred trust’. The parties to the Covenant must consequently be deemed to have accepted them as such. That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation . In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned” (§ 53, emphasis added).

10. There is little doubt that the prohibition of ill-treatment was applicable to young children in the Contracting States at the time the Convention was adopted and in 1973. The nature of obligations is by definition an evolving concept, precisely in conjunction with the evolution of understanding and of means. In the domain of human rights, as in that of self-determination, important developments occurred before and since 1973. These developments should have been taken into consideration by the Court in interpreting the obligations under Article 3 in this case. A fully-fledged test of intertemporal law would have been appropriate in this judgment.

11. Finally, the parties did not invoke any arguments relating to the principle that the Convention is a living instrument. In order to make my point clear, however, it is necessary to invoke this principle briefly. It is important to distinguish between the application of the Convention over time in situations where it is clear that the Convention obligation was applicable in the circumstances of the case, as in the case at hand, and the interpretation of the Convention Articles in a manner which brings within the scope of the right in issue new elements that were clearly not there at the time of the drafting of the Convention (see, for example, Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008). I do not exclude the possibility that there may at times be some confusion also in the Court’s case-law between these principles, and it is quite obvious that the Court needs to provide more clarity as to its choice of the applicable methodological principle when adjudicating the case before it. It is clear that in the case at hand we are not dealing with the principle of the Convention as a living instrument or with the retroactive application of the Convention. This is a case about the assessment of the State’s compliance with its obligations over time.