PARTLY DISSENTING OPINION OF JUDGE CHARLETON

1. A dissent from the majority opinion is necessitated on three grounds: firstly, the approach of the majority to Article 35 of the Convention which requires the exhaustion of domestic remedies; secondly, the finding of the Court that Ireland is responsible under Article 3 of the Convention for subjecting the applicant to torture or to inhuman or degrading treatment or punishment; and, finally, on the finding of the Court that the applicant was left by Ireland without an effective remedy under Article 13 of the Convention.

2. The facts and the analysis of Irish law are as stated in the majority judgment. In applying that analysis, the majority opinion is dissented from. In what follows, particular reliance is placed on the factors that: the applicant was abused while a minor attending a day school and in the legal custody of her parents; she was abused by L.H., a married head teacher in that day school; a report in 1971 to a Roman Catholic priest acting in place of the manager of the school was not reported by him or the parent complaining to the police or to the Department of Education; the discovery in 1973 by parents of children attending the school of the abuse of multiple victims led those parents solely to insist that the head teacher L.H. leave the school; neither the parents nor the school manager reported the crimes thus uncovered to the police or to the Department of Education; there was no inhibition in Irish law or in administrative procedure against such a report; the abuse of the applicant and the other victims was a serious crime in Irish law (sexual assault or indecent assault on a person under 15 years of age); when one of the victims of these crimes reported the abuse to the police from 1995 on, the police immediately initiated a thorough investigation, uncovering the abuse of the applicant, and commenced appropriate prosecutions; the head teacher L.H. was swiftly brought before the courts and was convicted of a representative sample of his crimes; in pursuing Ireland in respect of civil liability, the applicant chose to allege negligence and vicarious liability, but on those claims not succeeding before the court of trial (High Court) her legal representatives chose only to appeal the negative vicarious liability finding to the final appeal court (Supreme Court); there thus was a failure to exhaust domestic remedies. The applicant was the victim of L.H. She was subjected to a hideous experience that has been a burden over decades. She could have done nothing to prevent what occurred. L.H. subjected the applicant to torture. Here the issue is whether Ireland breached the Convention, essentially by not finding some means to prevent that abuse. Like any legal analysis, this depends upon the application of the conditions of responsibility to the precise facts. In 2014, awareness of paedophilia suggests that children be informed against unwanted touching and thus empowered against predators like L.H. In 1973, no one would have suspected that a senior head teacher could be a source of sexual violence to his child pupils. Without proof that Ireland in the 1970s should have taken the precautions that bitter experience and decades of official reports now demonstrate is appropriate, the case that Ireland failed in human rights obligations is not made out.

Article 35 of the Convention

3. The availability of the transcript of the domestic proceedings only after the admissibility decision necessitates a reconsideration of this issue. Article 35 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

4. This is a claim of negligence against Ireland. That this is the claim now being made is referenced clearly by the majority in paragraph 123:

“The applicant’s core complaint was that the State had failed, in violation of its positive obligation under Article 3, to put in place and adequate framework of protection of children from sexual abuse, the risk of which the State knew or ought to have known and which framework would have countered the non-State management of National Schools.”

5. The majority judgment, at paragraph 162, references the claim under Article 3 as being one of failure to put in place in schools “effective mechanisms for the detection and reporting of any ill-treatment by and to a State-controlled body”. This is regarded as one which might have been expected to avoid, or at least minimise the risk or damage suffered (referencing E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002) . That claim is for a civil finding to be made in negligence against Ireland. That claim in negligence is the same claim which was dismissed in the High Court for no evidence. That ruling was not appealed to the Supreme Court. In the majority judgment, at paragraphs 69 to 90, reference is made to evidence that was presented in argument before this Court and which was never referenced before the domestic tribunal. The Carrigan Report of 1931 concerned child prostitution. There is no connection between that issue and the control of teachers in ordinary primary schools. Even if there were such, that issue was required by Article 35 to be debated as to its impact before a domestic tribunal. It was not. The Ryan Report of May 2009 is after the High Court judgment of 20 January 2006 dismissing the negligence claim for no evidence. Yet, this report is referenced in the majority opinion as evidence of Ireland’s failure to protect children. Such a case, if brought by one of the inmates of such an industrial school or a reformatory school would be completely different factually to this application. The Ryan Report of 2009 concerned children who were through being brought before the District Court, including for such minor infractions as not attending school, or through parental poverty, sent to industrial schools or reformatory schools. The context is entirely different. Those children were isolated from parental intervention. The resonance in the majority judgment is that these places of incarceration were somehow equivalent to boarding schools. There is no evidence that in 1973, the teachers in day schools might be anticipated to behave in a sexually abusive way against their pupils. Further, even were such a connection demonstrated, the proper place for debate as to the impact of such evidence is before the domestic tribunal. There was no discussion of the impact of this report before the domestic tribunal. Reference is also made to reports of sexual abuse of children by Catholic clerics, almost always outside any kind of educational setting, in the Ferns Report of 2005 and the Murphy Report of 2009. How are these relevant? The abuser in this instance was LH, a married school head teacher and not a celibate cleric. The relevance of such reports might, perhaps, be debated. But is that not a matter for the domestic forum of trial? Any possible reference to the need for a heightened State of awareness among school inspectors cannot be debated before this court under Article 35 of the Convention unless that case has been made, in this case in negligence, before a domestic tribunal.

6. This is not a question of an applicant legitimately choosing one domestic remedy over another where the choice of that remedy addresses the essential grievance; as in Odièvre v. France [GC],no. 42326/98, § 22, ECHR 2003 ‑ III, referenced at paragraph 108-109 of the majority judgment. It is not a question of choosing, as the majority say at paragraph 111, “one feasible domestic remedy over another” or of pursuing “one feasible appeal (vicarious liability) over another (a claim in negligence and or a constitutional tort).” Furthermore, the majority judgment conflates the concept of vicarious liability with that of liability in negligence in ruling at paragraph 110 “that the applicant had the right, consistently with Article 34, to pursue the vicarious liability action with a view to addressing her grievance against the State without being required, when the route reasonably chosen proved unsuccessful, to exhaust another remedy with essentially the same objective.” This is incorrect in law. Two points need to be made.

7. Firstly, the prior decisions of the Court underline that a case cannot be made before the Court without full debate before a domestic tribunal and any relevant appeals. This must be correct as it accords with the wording of Article 35 of the Convention. In Selmouni v. France ([GC], no. 25803/94, ECHR 1999 ‑ V), paragraph 74 illustrates:

“The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions ... Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ... Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law.”

8. This principle is referenced in later cases (see particularly, D v. Ireland , no. 26499/02, (dec.), 27 June 2006). The authorities in Ireland have not had any opportunity to consider whether the evidence uncovered in official investigations about child sexual abuse in other contexts - abuse of children while in State confinement (Ryan report of May 2009) and abuse by celibate Roman Catholic clerics (Ferns report of 2005 not referenced in evidence before the High Court and Murphy report of 2009) - established liability. It is not in accordance with established practice that novel evidence which was not referenced before a domestic tribunal is introduced before the Court with a view to establishing a case based on negligence which the applicant pleaded apart from such reports before the High Court, lost and did not appeal to the Supreme Court. Further, it must be noted that those reports were not introduced in evidence at the trial; many of them being dated subsequently (Ryan report and Murphy report, both of 2009). Professor Ferguson was consulted by the applicant prior to the domestic proceedings and furnished a report dated April 2003. In that report he advised the applicant that he was not convinced that an argument that preventative strategies should have been in place at the time the applicant was abused would succeed in terms of proof of her case. This opinion was given in the context of the sociological and historical context of the 1970s. As noted at Volume 5 Chapter 8 of the Ryan Report, referencing Rollinson – Residential Child Care in England, 1948 – 1975: A History and Report, “Prior to the mid-1980s there was little professional or adult sensitisation either to the word or to the possibility of abuse (Corby et al, 2001).” The majority reference this view by dismissing its relevance. Why is it not relevant? Surely the answer is that if it is relevant, the place to consider such evidence as advancing or undermining the case is before the domestic tribunal. As to the majority referencing statistics on prosecutions for the sexual abuse of children, it must be remembered that Ireland was aware that the crime of child abuse could occur; otherwise, the criminalisation measures that provided for imprisonment would not be in place. What was unexpected was the abuse of children by principal teacher in a local day school. No one expected that. Contrary to the majority view, the statistics cited show an active criminal justice system. That criminal justice system dealt effectively with the case of the victims of LH once a report was made to the police from 1995 on. Furthermore, if a case of negligence was to be made, then the school manager or the school board would have to answer for a lack of action in respect of the 1971 complaint, as Professor Ferguson advised. They were not joined in the proceedings; see below § 12 of this opinion.

9. Fundamentally, in dissenting on this point, it needs to be pointed out that the law which binds the Court through Article 35 has been elided in favour of the Court now being asked to decide an issue of negligence which was abandoned by the applicant. On advice, the applicant appealed only on vicarious responsibility issue to the Supreme Court. The Court should not take on the task of analysing facts which could have been presented before domestic tribunals. Every government has the entitlement to debate such evidence before the domestic forums of justice. That debate would necessarily have been through the examination of witnesses and the scrutiny of any reports on which they founded opinions. That entitlement is central to Article 35. It has been by-passed.

10. Secondly, the majority statement in paragraphs 110 to 113, does not distinguish properly the nature of vicarious liability from a claim of failure to foresee and take appropriate precautions against abuse. These are not the same. Only vicarious liability was debated before the Supreme Court on appeal. That concept may be illustrated. An employee accidentally injures a visitor to the employer’s premises by the employee doing a negligent action within the scope of employment. The relationship of employer-employee, together with the task through which the damage occurred being mandated by that employment, establishes the resultant liability of the employer to pay damages. This is so even though the employer warned against such conduct and trained employees in order to prevent its occurrence. That establishes vicarious responsibility: a wrong by an employee and the necessary relationship of responsibility within the scope of employment makes an employer liable. On the other hand, a failure to engage in appropriate training when the employer knew or ought reasonably to have known that the risk of such an accident existed is negligence. Negligence liability depends on proof of a foreseeable risk of harm and a failure to take reasonable measures in prevention. In negligence, the defendant is liable because the defendant did not take care or was at fault. In vicarious liability, the employer as defendant is liable even though that employer defendant did take care and so was not at fault but the employee of that defendant was at fault. These heads of liability, in negligence and in vicarious responsibility, are very different. They are not, to paraphrase the words of the Court in Odièvre v. France (§ 22 cited above and referenced at paragraph 108 of the majority judgment) remedies which are essentially the same. What is essentially the same about a defendant being liable for that defendant’s own failure to take appropriate care (the tort of negligence abandoned after the High Court ruling of January 2005 and not appealed to the Supreme Court) and a defendant being liable despite carefully training employees but who becomes liable because of the employment relationship and because the wrong of the employee is within the scope of the employment relationship (the attribution of vicarious responsibility for the wrong of another)? The vicarious liability claim was argued fully before the relevant domestic tribunals in Ireland; it was claimed before the High Court and appealed when it did not succeed to the Supreme Court. The negligence claim was abandoned once the High Court ruled against it. It does not accord with Article 35 to now revive and argue this claim afresh.

11. Finally, if the applicant’s legal representatives had decided to pursue the Catholic hierarchy for the failure of the school manager to report the incident of 1971, then section 78 of the Courts of Justice Act 1936 allowed the joinder of such parties without a penalty in costs. This provides:

“Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff’s own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.”

Thus another domestic remedy was left aside.

Article 3 of the Convention

12. Article 3 of the Convention provides:

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

13. Article 1 of the Convention provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

14. To find torture or inhuman or degrading treatment regard must be had to all of the circumstances, including “the duration of the treatment, its physical and mental effects” and where relevant “the sex, age and state of health of the victim” (see Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008). Because of its gravely invasive nature and consequent on the deep wounds that it inflicts on the psyche, sexual violence is indisputably torture within the meaning of Article 3. The experience of the applicant was dreadful; the issue is the liability of Ireland for that appalling ill-treatment.

15. It is not disputed that there is a positive obligation on States to ensure that those within their jurisdiction are freed from torture or inhuman or degrading treatment (see Moldovan and Others v. Romania (no. 2) , nos. 41138/98 and 64320/01, ECHR 2005 ‑ VII). The prohibition in Article 3 is absolute (see Saadi v. Italy [GC], no. 37201/06, ECHR 2008). Further, positive obligations must be assumed by States to place torture or inhuman or degrading treatment outside the sphere of lawful conduct. States cannot abide by Article 3 through passing empty laws securing that right merely on paper. Nor may States pursue administrative measures that have the appearance of advancing that right while not empowering or, similarly, through dis-empowering, the national authorities from taking potent measures against torture or inhuman or degrading treatment or punishment.

16. Two related principles might usefully now be reaffirmed. Firstly, Article 3 protects against conduct at a minimum level of seriousness ( Ireland v. the United Kingdom , 18 January 1978, Series A no. 25). The abuse of the applicant undoubtedly meets that standard. Secondly, however, the terms of Article 3 make it clear that the prohibition is against subjecting anyone over whom a State has authority to torture or inhuman or degrading treatment. The scope of this Article, correctly construed, engages both serious conduct as to the action against the victim and a requirement that for a State to be found by the Court to infringe Article 3, it must have responsibility for subjecting someone within its jurisdiction to that conduct. To make a finding under Article 3 against a State is thus a most serious matter for the Court. This remains the position in law notwithstanding the development of case-law. Earlier decisions of the Court were to the effect that a finding that a State had subjected a person within their jurisdiction to torture should not be made unless proven beyond reasonable doubt (see Ireland v. United Kingdom , cited above). Even still, the present jurisprudence of the Court affirms that there must be proof of the dual nature of an Article 3 violation: conduct of the level of gravity required for each of the separate tests of torture, of inhuman or of degrading treatment is established; and that the respondent State bears culpability for subjecting the applicant to that breach. In Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII) the Court declared:

“147. ... According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights ...”

17. Extensions beyond the scope of the Convention as to when a State subjects a person to torture cannot be made without running the risk that the integrity of the prohibition in its absolute nature will be undermined, thereby replacing legal certainty with the less satisfactory standard that what may merely be argued actually represents the law. Since it is agreed that the actions of L.H., the school head teacher, infringed Article 3 by what he did to the applicant no further analysis is necessary on that issue. It is the finding that Ireland subjected the applicant to torture that is at issue. This finding is unsupportable on a plain reading of the facts. It is also inconsistent with the established jurisprudence of the Court.

18. The requirement of a close connection between a State and the wrong prohibited by Article 3, together with the culpability in moral terms that a finding of a breach of Article 3 intrinsically engages, demands that the Court should not retreat from these principles. In particular, common carelessness is not a sufficient basis for an Article 3 finding; unless that want of care is shown to be morally culpable in the context of State inaction. In particular, the negligence standard on its own cannot, without culpable moral wrong on behalf of a State, amount to subjecting a person to torture or inhuman or degrading treatment. No sustainable evidence of negligence by Ireland was produced by the applicant before the High Court in Ireland and the dismissal by that court on the basis of no evidence was not appealed by the applicant to the Supreme Court.

19. No one in 1971 to 1973 then anticipated that a head teacher in a primary school could be a serial paedophile. It is also accepted by the majority that the Department of Education knew nothing about the predation on school children by their teacher L.H. It is further accepted in the agreed facts that the police were not informed once the crimes had been reported to parents. For whatever reason, the person representing the school manager, namely Father Ó., did not pass on knowledge of any crime either in 1971 or 1973 to any official authority of Ireland and nor did the parents of the twenty-one child victims. Instead, the board of the school – representatives of the local community – met in 1973 in consequence of a general parental decision not to allow children to attend the school. There is no information as to how long this lasted but, by clear inference from the evidence, the board presented L.H. with a “resign or be sacked” situation in consequence of which he went elsewhere, apparently with no stigma. If there is fault here, and no comment is made, it is not the fault of the Irish State.

20. There was no failure to enact legislation. The reference by the majority to X and Y v. the Netherlands (26 March 1985, Series A no. 91) at paragraph 144 on the lack of legislation criminalising sexual advances to a mentally handicapped adolescent, contrasts the availability of genuine prohibitory remedies in Ireland; sexual touching of a minor was then and is now a crime in Ireland and consent was rightly deemed irrelevant to liability (see the analysis of Irish law at paragraphs 63-65 of the majority judgment). Article 3 engages positive obligations. States must adopt legislation or administrative measures that, considered as a whole, are an effective deterrent against torture or inhuman or degrading treatment or punishment: see A. v. the United Kingdom (23 September 1998, Reports 1998 ‑ VI) on the burden of proof in assault on a child by way of domestic chastisement, and Opuz v. Turkey (no. 33401/02, ECHR 2009) on complaints to domestic violence responses being manifestly inadequate. Article 3 thus requires that States put in place effective measures of investigation that are thorough and expedient and independent, and that are thus capable of leading to prosecution in the case of violation by domestic or State actors (see Mikheyev v. Russia , no. 77617/01, 26 January 2006, and Akkoç v. Turkey , nos. 22947/93 and 22948/93, ECHR 2000 ‑ X). As the Court said in VeznedaroÄŸlu v. Turkey (no. 32357/96, 11 April 2000) at paragraph 32:

“... where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention’, requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible ... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ...”

21. In Ireland, the Criminal Law Amendment Act 1935 prohibited sexual intercourse with a girl under 15 and further negatived any apparent consent to sexual assault, thus rendering a victim incapable in law of ostensibly agreeing to any form of sexual action. All such acts were classified as indecent assaults, and later renamed more appropriately as sexual assaults: crimes in which a victim could not be criminally complicit. There is a complete absence of evidence that this law was an empty piece of hypocrisy. Its usefulness is demonstrated by the vigorous investigation by police authorities starting in 1995 immediately a criminal complaint was made against L.H., and by his conviction and imprisonment three years later. What happened in 1995 would most likely have happened in 1971. Thus the horrible experience of this victim in 1973 would have been prevented. Further, even the reports cited by the majority, including Carrigan and Ryan, reference the enthusiasm of the police authorities in Ireland for such forms of prosecution. There is no clearer indication that an action is prohibited by a State, moreover, than the declaration that said action is a crime. If the Irish police and administrative authorities are not engaged, counsels of perfection in retrospect are not to replace the fundamental requirements that a finding under Article 3 is only to be made in circumstances of grave moral failure by a State. That is absent here. The failing that the majority judgment purport to identify here under Article 3 cannot be regarded as compatible with a legislative failure, such as occurred in the above-cited case of X and Y v. the Netherlands (§§ 21-27) where there was an absence of legislation prohibiting the sexual exploitation of mentally handicapped adolescents. As to civil protection, any form of unwanted touching in Ireland is a civil wrong by law; it is the tort of assault. This is demonstrated as effective on the evidence by the award of damages in favour of the applicant against L.H.

22. In the majority judgment, the allegation is made that such rules as governed Ireland’s relationship with national schools did not require parents to complain to the police or to seek redress from any other body except the school manager (see paragraphs 163-65). The majority judgment, at paragraphs 57 to 62, correctly quotes these rules and then at paragraph 168 makes the claim that the rules “directed away” complaints to a non-State actor, namely the school manager. No case can be made that the relevant rules discouraged parents from making complaints to the police and to another official authority. It is inappropriate to quote a rule which suggests that complaints about a teacher should initially be made to the school manager as an inhibition against a criminal complaint to police. Every school in every European country must have a mechanism for dealing with complaints about a teacher in his or her capacity as a teacher. What, considered in any common-sense way, are such rules about? Parents complain about teachers: the teacher is not good at a particular subject, the teacher does not turn up on time or at all, the teacher has a personal problem which interferes with his or her teaching. This has nothing to do with directing criminal complaints of sexual abuse away from the police. Any such rule does not operate to divert a complaint that a teacher committed a crime against a child. Could anyone reasonably construe such a rule in this way? The matter was not even debated before the national trial court. This is not surprising at all. This ostensible view of the majority could not be a reference to Rule 15 of the 1965 Rules which provides for the manager to govern the school. That means what it says: governing a school does not permit or encourage any breach of the criminal law; in every legal system a crime is a breach of the fundamental rules of society, not a problem within education. Nor could Rule 121 be relevant to the majority judgment in that it requires teachers to “act in a spirit of obedience to the law”. That rule further demands “strict attention to the moral and general conduct of pupils” and for teachers to take “reasonable precautions to ensure [their] safety”. In so far as it may be said that teachers were obliged to “carry out the lawful instructions” of the school manager, there was no instruction not to report a crime to anyone. The text of the relevant rules indicates no such situation of discouragement or diversion or suppression of criminal complaints. Further, any person would draw the obvious distinction between a complaint about a teacher as a teacher, thus perhaps engaging the rules, and a complaint that a teacher was a serial sexual abuser of children and thus a criminal, thereby engaging the criminal law. The Guidance Note of 6 May 1970 of the Department of Education outlined a practice to be followed in respect of complaints against teachers. There are many complaints about teachers, often totally unjustified: incompetence, absence, indolence, bullying, drinking. Every country has a procedure for dealing with such justifiable or unjustifiable complaints in the sphere of education. Ireland has this too, unsurprisingly, and Ireland also has a criminal law where the complaint to be made is of sexual violence. Nothing in that procedure obliged or directed or encouraged parents whose children were sexually abused [to refrain] from going to the police. Before dissenting, the transcript of the domestic proceedings was obtained and carefully considered. In the evidence at trial in the High Court of Ireland, neither the victims of L.H. who gave evidence nor the parent who complained in 1971 to the cleric acting in place of the school manager referenced the Guidance Note, or any other rule, as [constituting] a diversion, a “directing away” or a discouragement [with regard to making] a complaint to the police. In fact, the issue was not even discussed. Article 35 is, similarly, relevant here. There is no suggestion or hint that this Guidance Note was referenced by anyone in relation to the complaint to the manager in 1971 and there is no reference that it in any way directed the parents who became aware of the scale of the abuse in 1973 away from the police. Nor is there any evidence whatsoever that the parents were impeded in any way in making a complaint. The matter simply never came up at trial. The question was not put.

23. The majority judgment fails to complain of an absence of rules requiring the reporting of serious sexual crime. Such a development of mandatory reporting is a matter of serious debate (see the discussion by Simon O’Leary in “A Privilege for Psychotherapy? Parts 1 and 2” ([2007] Bar Reviews 75 and 76). But it can be wondered: is this the underlying but tacit reasoning of the majority judgment? The setting of appropriate rules requiring reporting may now be thought necessary in some situations in order to prevent and detect the sexual abuse of children; but that is a matter in respect of which the majority offer no view and no decided case to date has established liability for an Article 3 violation on the basis of the absence of such a rule. The setting of any such rule would require careful evaluation as to its scope and the circumstances of its application by the High Contracting Parties in the light of the national conditions that may be thought to require its application. The absence of any such rule was not argued as a ground by the applicant.

24. In the context of the litigation, the applicant’s representatives commissioned an educational expert, Professor Ferguson, to direct how child abuse might have been prevented in the relevant period forty and more years ago now. As previously referenced at paragraph 24 of the majority judgment, he concluded that there was no basis on which he could testify that Ireland had failed in its duty of care towards school children. Since even the expert on behalf of the applicant cannot say that Ireland failed, there is no combination of legal ingredients that can possibly replace the Court’s jurisprudence. His reasoning was that it was not possible to project onto the past the knowledge and systems of accountability of the present day. This is right. The same emerges from another report referenced but not analysed by the majority, that of Mr Rollinson, which the Ryan Commission appended to Volume V of its report.

25. The Convention is a living document. This has been reiterated in many cases. In Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26) the Court set down a standard that has been consistently followed since:

“The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field ...”

26. In Henaf v. France (no. 65436/01, § 55, ECHR 2003 ‑ XI) the Court reiterated its view that:

“... certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ...”

27. The Convention has developed over time in accordance with changing conditions and with developing understanding. The obverse cannot be the case. Is it either logical or legally correct for the Court to pursue jurisprudence that the obligations under the Convention develop according to the times and conditions of the day while at the same time not recognising that the prevention and detection of child sexual abuse has been in a process of development over several decades? It is not supportable to find Ireland liable on the basis of not having programmes that only modern experience and a more open recognition of the criminal sickness of paedophilia and its repetitive nature have now revealed. The majority might ask: how was this to be expected in 1973? To make a finding under Article 3 is to detract from the living nature of the Convention as a fundamental document for the protection of human rights that evolves over time. This finding is instead, and in the absence of evidence, to make a State culpable of torture for failing to do what should today be recognised as appropriate.

28. Further, there is no other indication in any research carried out by the Court that contemporary practice in Ireland should have been applied forty years ago.

29. Effectively, the main finding of the majority has been made on an interpretation of the evidence that stretches rules away from their clear purpose and intent and, in addition, applies the best practice of the suspicious present as to the protection of children to a time when consciousness of this danger is not demonstrated to be as it is today, four decades later. Furthermore, the Ryan, Murphy and other reports indicate a growing awareness that led to the current practice of warning and detection in relation to child sexual abuse. The investigations by Ireland into this grave wrong demonstrate a serious determination to uncover wrongs related to this gross human violation and to set standards in the future that ensure the protection of children in accordance with the most modern experience and thinking.

Article 13 of the Convention

30. Article 13 provides:

“Everyone whose rights and freedoms as set forth in this 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.”

31. The applicant was the repeated victim of several crimes of sexual abuse. That crime was not reported to the police authorities by the parents of the several victims who identified the nature of the gross abuse of their children to each other and to the school manager. Instead the abuse was first reported by one of the victims to the police on that victim attaining majority age some twenty years later. There were up to twenty-one such sets of parents or single parents or guardians. A single complaint to the school manager was made in 1971 and was not acted upon by him. The several complaints that were uncovered in September 1973 were responded to by a meeting of parents chaired by the school manager that led to the result outlined in the majority judgment at paragraphs 12 to 20, that is to say the resignation of L.H. and his displacement to another school. The lack of reporting to the police authorities cannot be blamed, as it is in paragraph 168 of the judgment of the majority, on complaints being “directed away” from the police. There was simply no evidence of this at the trial before the High Court. No rule relating to discouragement from reporting a breach of the criminal law is referenced. Furthermore, at trial, there was no case made by either of the victims who gave evidence or by the parent of the child who complained to the school manager in 1971 that they were discouraged from a police complaint by any rule. That was not even discussed at the trial. The criminal law of Ireland was there to be accessed by any person and the evidence indicates that it worked effectively

32. The criminal remedies were of Convention standard. Following a complaint, several years after the 1973 meeting of parents which merely resulted in the resignation of L.H., in 1995 a victim complained to the police. The applicant was interviewed. Her evidence was investigated. A large body of evidence was collected. Ireland did not have any law which prohibited or inhibited a trial on a serious criminal charge such as this – even after a gap of this duration. In other words, Ireland has no statute of limitation for the initiation of a criminal investigation or the prosecution of an offender on a serious crime. This accepted state of the law resulted in the complaint being acted upon. This led to the conviction of L.H. and his imprisonment. There is no legal deficit. Furthermore, there is no suggestion that the rules referenced by the majority as ostensibly diversionary, changed in any way or were replaced.

33. In terms of remedies, the majority complain of the interposition of “denominational actors” between Ireland and school children and that this would “appear incompatible with the recognition of a direct duty of care between the State and children”. Remedies were available against the State on proof of fault; a claim in negligence which, experience tells, is the most frequently litigated civil wrong before the Irish courts. The proof of such fault, amounting to negligence, could have resulted in an award against the State. No sustainable evidence was led at trial that the Irish authorities either knew or ought to have known that the person appointed as principal of Dunderrow National School was a paedophile. As the Court held in Mastromatteo v. Italy ([GC], no. 37703/97, § 95, ECHR 2002 ‑ VIII), the availability of a remedy only on proof of actual fault is not incompatible with the Convention:

“It is true that these remedies are available only on proof of fault on the part of the relevant authorities. However, the Court observes that Article 2 of the Convention does not impose on States an obligation to provide compensation on the basis of strict liability and the fact that the remedy ... is made dependent on proof of malice or gross negligence on the part of the judge ... is not such as to render the procedural protection afforded under domestic law ineffective ...”

34. It might also be commented that a State is entitled to organise for a minimum level of education for its citizens in the way which accords to the arrangement in Ireland. In terms of actual fault, such a finding was made at the civil trial against L.H. only, and not against Ireland, and damages were ordered. The inability of L.H. to pay more than the approximately 10% of the award paid to date is a regrettable circumstance but there is no obligation under any of the Articles of the Convention that defendants who are in fact liable, in contrast to defendants against whom a finding of no fault has been made and not appealed, should be able to pay the full amount of damages.

35. Had there been proof of fault on the part of Ireland in failing reasonably to foresee and to take appropriate measures of care thus leading to damages, there existed a remedy for establishing any liability of State actors for such acts or omissions and for the payment of compensation. That remedy was the tort remedy in negligence which was, first of all, not proven against the State at trial and was then abandoned on appeal. Contrary to the majority analysis at paragraphs 183 to 186 of the judgment, this demonstrates a system that was accessible and was capable of providing redress and offered reasonable prospects of success once there was appropriate evidence.

Result

36. It is thus on the absence of evidence on which this dissent is based. The standards of today can illuminate how those four decades ago were remiss in protecting children. The standards of today based on experience up to today are not necessarily how conduct in the past is fairly to be judged. The applicant was subjected to conduct that amounts to torture or inhuman or degrading treatment. Ireland did not subject the applicant to that horrible experience; L.H. did. The Irish authorities could not reasonably have anticipated that the origin of such behaviour would be a head teacher with a mandated duty to protect children under his care. It is to be recognised that the victims of sexual abuse can be locked up in their experience over decades and be thus unable to report those crimes. It is also to be recognised that parents would not easily let their children into the criminal justice system to relive their experience as witnesses in the cold forum of a criminal trial. What cannot be avoided in any discussion of the facts of this sad case is that the result of the complaints of parents in 1973 was that the teacher left the school to take up teaching elsewhere. If there was failure here, this demonstrates that it was a failure of society in approaching this criminal behaviour and not failure by Ireland as a State.

[1] . Legal Consequences for States of the continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) , 1971 ICJ Reports 16 (“the Namibia case”).