JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIĆ, GYULUMYAN, KALAYDJIEVA, DE GAETANO AND WOJTYCZEK

1. The present case concerns the responsibilities of the State for the protection of children against sexual abuse committed by a teacher in the 1970s. Like our colleagues who voted for the majority judgment, we consider child sexual abuse to be a quintessential example of inhuman treatment proscribed by Article 3; we are also in agreement that States are under an obligation to undertake the necessary measures to protect children from such abuse.

2. Like the majority, we sympathise with the applicant’s suffering because of what she had to go through. She was subjected to the sexual assaults of a lay and married teacher (L.H., who was also the school principal) during music lessons held in his classroom from early to mid ‑ 1973, at a time when she was nine years old. At that time neither she nor her parents were aware of the complaints of parents of other victims of sexual abuse (at the hands of the same teacher) raised before the manager of the school. Later evidence indicated that in September 1973 other parents brought to the applicant’s parents’ attention certain “difficulties” in connection with the said teacher, and that the parent of a child had complained to Ó. (the de facto manager) that L.H. had sexually abused her child in 1971. Following a meeting of parents chaired by Ó., L.H. went on sick leave. In September 1973 he resigned from his post (see paragraphs 14 ‑ 17 of the judgment).

3. It is an uncontested fact that neither the parents, the victims nor the manager of the school reported the above-mentioned facts to the police or to any public authority until 1995 – more than twenty years after the events. Nor did the applicant do so after attaining majority in 1985. The applicant reacted only in 1996 – when contacted by the police in the context of an investigation into the 1995 complaint of another former pupil of Dunderrow National School. In this context, it is important to underscore that if the applicant’s complaint concerning abuse by a private party had been lodged with the Court prior to 1995 and without having first been brought before a domestic authority, that complaint would have been declared inadmissible on account of the lapse of time and/or on account of the failure to exhaust domestic remedies (Article 35 of the Convention).

4. The Irish authorities reacted as soon as they became aware of the abuse. It has not been contested that at the time of the events Irish law envisaged criminal sanctions for the perpetrators of sexual abuse of children as well as compensatory remedies for the victims, and this regardless of the context in which the crime was perpetrated. Following the statements made to the police some twenty years after the events, L.H. was charged with 386 criminal offences, he pleaded guilty to twenty-one sample charges and was sentenced to imprisonment. In 1998 the applicant applied to the Criminal Injuries Compensation Tribunal. She eventually obtained 53,962.24 euros (EUR). In 2002 she accepted this sum and gave the standard undertaking to repay this sum to the Tribunal from any other award, from whatever source received, in relation to the same injury (see paragraph 21). The applicant also brought a civil action against L.H., the Minister for Education and Science, the Attorney General and the State of Ireland, and on 24 October 2006 obtained a default judgment against L.H. in the total sum of EUR 305,104. L.H.’s licence to teach was withdrawn by the Minister of Education under Rule 108 of the National School Rules of 1965.

5. There is nothing to indicate that these measures were not applicable or could not have been imposed at an earlier point in time. Had similar criminal or civil proceedings been undertaken in the 1970s or 1980s, the complaints lodged before this Court would have been declared inadmissible on the ground that the applicant no longer had victim status.

6. We cannot emphasise enough the fact that the complaints of insufficient protection and insufficient prevention of abuse on the part of the State could be examined by this Court only as a result of the authorities’ prompt response to reports of abuse made more than twenty years after the events . It is, indeed, doubtful whether such a prompt and effective response would have been equally available in the legal systems of all States Parties to the Convention, and whether the lapse of time would not have prevented, through extinctive prescription, other domestic authorities from imposing the measures described above as a reaction to complaints. In our view these measures constituted sufficient protection for the applicant’s rights under Article 3 of the Convention. The fact that an appropriate and prompt reaction was provided in the case only after 1995 – despite the lapse of twenty years – cannot legitimately be turned into a nunc pro tunc instrument of analysis for the purposes of declaring admissible the complaints against the respondent State. These are our reasons for disagreeing with the majority on the question as to the admissibility of the complaints.

7. We also regret being unable to follow the majority in their analysis and conclusions as to the scope of the positive obligations of the State in the circumstances of the present case. These positive obligations have to be construed with due consideration to the different values and rights protected by the Convention. According to the Preamble to the Convention, fundamental freedoms are best maintained in an effective political democracy. The notion of a democratic society encompasses the idea of subsidiarity. A democratic society may flourish only in a State that respects the principle of subsidiarity and allows the different social actors to self ‑ regulate their activities. This applies also to the domain of education. Legislation pertaining to private education should respect the legitimate autonomy of private schools. Article 2 of Protocol No. 1 guarantees the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. It is clear that the democratic State has to respect the education choices of the parents as well as the parents’ primary responsibility for the development and well-being of their children.

8. The interpretation of the Convention and the understanding of the scope of State obligations that it imposes have evolved considerably since the Convention’s entry into force. This means that the relevant facts occurring in 1973 may not be legitimately examined in terms of standards attained subsequently. These facts should be assessed in the light of the Convention as understood at that time and in the context of international law as in force at that time . The same principle applies to State obligations. The scope of State obligations in 1973 should be assessed in the context of international law as is stood at that time. In this regard the majority attempts to demonstrate (in our view, and with all due respect, in a strained way) that a positive obligation to protect, and prevent the ill-treatment of, children at school through an appropriate framework of regulations encouraging complaints was clearly established under the Convention in 1973. There is, however, no relevant case-law which supports this view. The Case “relating to certain aspects of the laws on the use of languages in education in Belgium” ((merits), 23 July 1968, Series A. no 6) pertains to a completely different question and order of ideas, namely “the right to be educated in the national language or in one of the national languages, as the case may be”, and is not related to the right of children to protection against ill-treatment. All the other cases cited in the present judgment were determined many years after the abuse of the applicant in 1973.

9. We disagree with the retrospective application of the present-day understanding of positive obligations of the State to a situation obtaining about forty years ago. It is Kafkaesque to blame the Irish authorities for not complying at the time with requirements and standards developed gradually by the case-law of the Court only in subsequent decades.

10. Being unable to cite relevant case-law from the pre-1973 period, the majority further refers to various international declarations and covenants (see paragraphs 91-96). A proper analysis of the instruments pertaining to children’s rights shows an acute deficit regarding the protection of children under international law until the entry into force of the 1989 United Nations Convention on the Rights of the Child. The declarations cited contain general principles of protection of children lacking specificity, and are of a non-binding nature. At that time States preferred non-binding instruments to treaties imposing legal obligations on them. Furthermore, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which impose firm legal obligations on States, were signed by Ireland on 1 October 1973 and ratified only in 1989. Therefore, none of the international instruments cited by the majority can be seen as relevant to the assessment of the liability of Ireland in the present case.

11. Even assuming that present-day standards established by the case ‑ law of the Court might be applicable to facts that occurred in 1973, we are not able to follow the majority as to the scope of the positive obligations of the State. In this regard the current case-law of this Court requires the enactment and effective enforcement of criminal legislation that penalises sexual abuse of minors by private parties as a positive obligation for adequate protection against treatment contrary to Article 3 committed by private parties (see, inter alia , X and Y v. the Netherlands , 26 March 1985, §§ 23-24, Series A no. 91, and M.C. v. Bulgaria, no. 39272/98, § 153, ECHR 2003 ‑ XII), as well as appropriate civil responsibility and compensation. It is not contested that Irish law envisaged such protection and that it was afforded as soon as the authorities were duly informed.

12. The majority, however, merges or rather confuses the examination of the responsibilities of State authorities under Article 3 of the Convention to protect against ill-treatment by private parties with a presumed responsibility arising under Article 2 of Protocol No. 1 to examine “the risk of ill-treatment in the context of education”, and comes to the conclusion that there was a specific obligation to prevent the risk of ill-treatment in the context of education (see paragraph 162). This extends the scope of these obligations under the Convention in such a way that they are no longer predictable.

13. In coming to this conclusion, the majority appears to base its factual analysis on several unjustified assumptions.

(i) The first of these assumptions is that the applicant’s suffering was the result not of the unpredictable criminal conduct of a private individual, but of some inherent risk of such treatment arising in the context of education. Regrettably, child abuse of various kinds takes place both in a private and in a public context. While we agree that children must be under the constant and special protection of the State, we remain unconvinced that the risk of such abuse is necessarily inherent, or higher, in the context of education, or that such acts are necessarily more visible if committed (albeit secretly) in a school than if committed in a family context.

(ii) The second unjustified assumption is based on a fact to which the majority appears to attribute special importance, namely that the respondent State had “ceded” its responsibility for the education of children in national schools to a private entity – the Catholic Church. We fail to see a causal link between this choice of the respondent State and the frequency of sexual abuse by teachers, or knowledge thereof, in State-managed schools as compared with schools managed by private entities. In the absence of complaints the authorities will remain equally unaware of this risk and/or of the failure to report such abuse.

(iii) The third unjustified assumption on the basis of which our colleagues arrive at the conclusion that further specific positive obligations arose in the context of education is their view that “the State was aware” (see paragraph 162) of the said inherent risk in the context of education in 1973. This assumption is especially dangerous as it implies not only that the allegedly inherent risk was known to the authorities, but also that, having criminalised the acts at the relevant time, the authorities “ought to have had knowledge” of the risk notwithstanding the absence of complaints. This unjustified conclusion appears to have been reached by merging with hindsight a twenty-first century level of social awareness of child abuse with the results of reports on such abuse in closed institutions dating back to the 1930s, as well as with studies and analyses carried out in the 1980s and 1990s. We find it necessary to distinguish the information available to the national authorities in 1973 from what was available to Irish society after the mid-1980s as a result of ex post facto studies of child sexual abuse in Ireland. The Carrigan Report of 1931 (see paragraphs 69-72) and the Cussen and Kennedy Reports (see paragraph 74) appear to have been the only sources of public information existing and available in 1973. They concerned primarily the abuse of children deprived of parental care and control in closed institutions – a situation manifestly and fundamentally different from the circumstances of the present case (albeit equally repugnant and regrettably still valid for many parts of the world).

(iv) It was only “[f]ollowing public disclosures and controversies in the late 1980s and early 1990s” (see paragraph 75) that on 11 May 1999 the Prime Minister of Ireland issued a statement of “sincere and long overdue apology to the victims of childhood abuse for [the] collective failure to intervene, to detect their pain, to come to their rescue”. A closer look at the results of the subsequently commissioned inquiries shows that these are not necessarily relevant to the circumstances of the present case, which concerns acts committed by a lay teacher in an open school – a matter on which the reports cited do not shed much light. However, these reports show that “[w]hile the religious authorities ... [minimised] the risk of public disclosure [in the closed institutions, that is, in reformatory and industrial schools] ... they had reported complaints of sexual abuse of pupils by lay persons to the police” (see paragraph 78). We cannot see why the same could not be validly expected in regard to the open national schools as a matter of principle – in contrast to the findings of the majority that the “ceding” of State responsibility for education was linked to the failure of the manager of Dunderrow School. In this regard the subsequent reports cited seem only to confirm a high probability of reporting on lay perpetrators. The reports also show that “[t]he police had been quite vigorous in their prosecution of paedophiles but the fact that most sexual crimes were not actually reported suggested that such crime was a serious problem throughout the twentieth century in Ireland ... the criminal-court archives demonstrated a ‘consistently high level of sexual crime directed against young boys and girls’”, and that “[w]hile most of those cases were not recorded in the media ... the police had extensive contemporaneous knowledge of the existence of such crimes” (see paragraph 82). In our understanding this only confirms that, when made, complaints and the reporting of such acts were followed by appropriate measures. The fact that one of these reports also referred to a particular instance of failure to react to complaints in the case of a lay teacher (described as “a serial sexual and physical abuser” at paragraph 79) simply goes to prove the rule, namely that when reports were made to the State authorities, these always reacted promptly and appropriately.

(v) Our conclusion, therefore, is that it has not been shown that Irish society, or the Irish authorities, were aware or should have been aware of some inherent risk of child abuse in (the open) national schools in the mid ‑ 1970s. Moreover, to our best knowledge, no social studies show that this risk is higher in schools than anywhere else (other than closed institutions); and nothing has been submitted to indicate a difference in risk between publicly managed and privately managed (open) schools. We regret that in this regard the majority failed to give appropriate consideration to an expert’s opinion (see paragraph 83) that “prior to the mid-1980s, there was ‘little professional or adult sensitisation either to the word or to the possibility of abuse’ and that it was ‘essential to avoid the trap and potential excesses’ of judging this period by today’s standards”.

(vi) These unjustified assumptions resulted in the retrospective expansion of the positive obligations of States, imposing standards far beyond those existing not only in 1973 but also today.

14. In Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII) the Court required that “it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see Osman , § 116, emphasis added). The Court held that it was sufficient for an applicant to show that the authorities had not done all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. Ever since Osman the Court has stated that a positive obligation to prevent unnecessary loss of life arises only in the particular circumstances of an imminent and known risk to life . More recently, and in the context of Article 3, the Court has required that a State take all steps that can reasonably be expected “to prevent real and immediate risks” where vulnerable persons are concerned (see, for example, in relation to prisoners, D.F. v. Latvia , no. 11160/07, § 84, 29 October 2013, and other cases referred to in that judgment).

15. In our view the majority went far beyond the principles established in Osman (cited above) and later judgments concerning the limited positive obligations of States to protect persons against unpredictable human conduct. The majority judgment imposes a positive obligation of constant and retrospective vigilance with regard to assumed inherent risks arising out of unpredictable human conduct “in an educational context”, which in our view amounts to imposing (to use the Court’s words in Osman ) “an impossible and disproportionate burden”.

16. In an effort to bridge the gap between the extent to which it was shown that the authorities “knew” of the allegedly inherent general risk and the standards of Osman (cited above) concerning established knowledge of an imminent risk in respect of specific individuals, the majority came to the conclusion that the authorities were not informed as a result of the system, which “discouraged” complaints and failed to provide for a procedure “prompting a child or parent to complain about ill-treatment directly to a State authority” (see paragraph 163), while at the same time the way in which schools were managed made inadequate provision for appropriate participation by parents.

17. The essence of the first argument concerns the victims’ parents’ failure to complain to the relevant State authorities and thus their failure to avail themselves of the existing remedies. In this regard the finding converts their failure into a reproach wrongly addressed to the authorities. We are not aware of any earlier case in which the authorities were blamed for the victims’ failure to complain. This approach defeats the admissibility requirement to exhaust domestic remedies. Moreover, in setting retrospectively a positive obligation to “encourage complaints” in any context of governance, the reasoning of the majority seems to open the gates for any person to claim to have been a victim of a failure to encourage his or her complaints at any moment from the ratification of the Convention to the present day. In the instant case parents had noticed the abuse of their children. In addition to the possibility of informing the police, parents (like managers) could also complain directly to the inspectors, or to the Department, which provided them with additional instruments of protection that complemented the protection offered by the criminal legislation. The facts show clearly that in response to the acts of L.H. a meeting of parents chaired by Ó. took place, following which L.H. went on sick leave. It is a different question whether these parents and/or the applicant’s parents wished, or demonstrated that they had requested, any further measures to be taken at the time. We do not wish to be seen as cynical and we can understand their hesitation to do so. What we wish to emphasise in any event is that there is nothing to support the assumption that these parents would have complained more vigorously if “encouraged” by further regulations and/or by the creation of a special body responsible for examining complaints about teachers. The reality remains that victims of child sex abuse understandably feel embarrassed to complain, while their parents more frequently prefer to withhold complaints so as to protect their children from exposure to the further distress of inevitable inquiries. Regrettably, silence constitutes the major difficulty in investigating these cases. The respondent State cannot be held responsible for the parents’ silence in 1973.

18. We are not convinced that if such allegations of child abuse had been brought by the parents and examined by either the Department of Education or the police in 1971 – when the first instance of abuse was noted by a parent – this would not have resulted in the appropriate and sufficient measures envisaged by the law at the time. In this regard our answer to the question posed in paragraph 152 – whether the State’s 1973 framework of laws, and notably its mechanisms of detection and reporting, provided effective protection for children attending a national school against the risk of sexual abuse – differs from that of the majority. We are of the view that not only were appropriate measures envisaged by the national law at the time, they were also imposed ex officio as soon as the authorities became aware of the facts. In our view, no further positive obligations arise in the present case above and beyond those that existed in 1973 and were promptly fulfilled in the 1990s.

19. We are further concerned that the reasoning of the majority is founded on ideological premises that are difficult to accept. The majority states that “when relinquishing control of the education of the vast majority of young children to non-State actors, the State should also have been aware ... of potential risks to their safety if there was no appropriate framework of protection” (see paragraph 162). What is advocated as a solution to the problem is the creation of mechanisms for the detection and reporting of any ill ‑ treatment by and to a State-controlled body. This part of the reasoning is based on the implicit assumption that educational systems with a strong State role or State participation offer better protection to children. There is no social-science evidence to support this belief. In particular, there is no evidence that States which provide for an “intensive” surveillance of both public and private schools obtain better results in eradicating paedophilia. There is nothing to support the assumptions that the applicant would not have become a victim of sexual abuse had she been a pupil in a school placed under stricter State surveillance or that the acts of L.H. would have been reported if the school had been placed under such surveillance. The approach adopted by the majority is in contradiction with the idea of a democratic society flourishing within the legal framework of subsidiarity. It calls unnecessarily into question the Irish model of education, which is deeply rooted in the nation’s history. In this regard the majority does not hesitate to venture into the field of relatively detailed questions of internal social organisation and State administration in the field of education, areas which fall within the exclusive domestic competence of States and should therefore be left to the appreciation of the High Contracting Parties.

20. In conclusion, we discern no causal link between the circumstances of the present case and the fact that the school, in which the applicant was abused by a lay teacher, was managed by the Catholic Church. It cannot be said that Ireland failed to honour the positive obligations imposed on it by the Convention. We regret to note that the Court, established to ensure the protection of human rights and fundamental freedoms, promotes as a remedy for rights violations a model of the State which restricts the scope of freedom and individual responsibility.

21. Judge Zupančič voted for a finding of inadmissibility of the present application. In the proceedings before the Chamber (and before relinquishment) he voted in favour of admissibility. He changed his position for the reasons explained in paragraphs 2 to 6 above.