PARTLY DISSENTING OPINION OF JUDGE FOIGHEL

1.   In this case I find a violation of Article 6 para . 1 (art. 6-1) which "secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal" (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para . 36).

2.   For the understanding of this very important and basic rule of the Convention, it is irrelevant whether English law distinguishes between intentional and unintentional injuries for the purpose of limitation. The problem in this case is how to interpret the Convention.

The case-law of the Court was for the first time formulated in the Ashingdane v. the United Kingdom case ( judgment of 28 May 1985, Series A no. 93, p. 24, para . 57) where it is stated:

"Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access ‘ by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the com munity and of individuals ’ ... In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention ’ s requirements rests with the Court, it is no part of the Court ’ s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field ...

Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired ..."

3.   This formulation of the law raises two questions. First, did the victims in this case, who had a claim relating to their civil rights, have access to the courts? Second, for how long a period did they have access?

4.   The second of these two questions is the easier: the victims were allowed six years from the date of their eighteenth birthdays, a period which is not unreasonable and which is well within the State ’ s margin of appreciation. Neither is the imposition of a fixed limitation period in itself enough to constitute a violation.

5.   But the crucial questions are: when should the limitation period start?  Did the applicants have effective access to the courts? If the period starts and ends before the person concerned has knowledge of the facts that the alleged injury was both substantial and attributable to the defendant, the victim has no chance ever to go to court.

6.   The psychological reports submitted in these cases demonstrate that the victims of sexual abuse suffer from a split personality. They belong to a restricted, well-definable group of persons which only recently has come to the fore, the so-called Child Sexual Abuse Survivors. One of the applicants was born in 1962, but it was not until 1987 that she first mentioned the abuse to her doctor. She did not realise before that it was relevant or would be interesting to the doctor, although she had suffered many psychological problems due to it. Until she mentioned it to the doctor, she was not aware of any causal link between her suffering and the abuse; in other words, in the years during which she could go to the courts she was not aware that she had a case, and when she became aware that she had a case, she had no possibility to bring a claim.

7.   The purpose of the rules of limitation, which is to strike a proportional balance between the prevention of stale claims and protecting the interests of the claimants, have no meaning when the victim is not aware that she even has a claim.

8.   The suggestion by the majority (see paragraph 52) that a "criminal prosecution could be brought at any time and, if successful, a compensation order could be made", is not a reasonable alternative to the right stated in Article 6 (art. 6) to bring a civil claim to a court. In this sensitive area, where the conflict exists between daughters and their fathers, there is a major difference between claiming compensation and claiming that the father should be punished by a lengthy stay in prison.

9.   In many countries in Europe the limitation period only starts to run when the victims have discovered or ought to have discovered the material facts on which an action can be based. This principle of discoverability was also accepted by the British legislature as early as 1963.

10. The Court normally recognises a margin of appreciation when evaluating whether a member State has observed an individual ’ s right protected by the Convention (in this case, the right of access to court). However, the margin of appreciation can never justify a State in depriving the individual altogether of the right in question.

Accordingly, I find the margin of appreciation recognised by the majority far too wide, since the English legislation denies the very essence of the right of access to court, in a situation where the applicants had no realistic opportunity to go to court at any earlier stage.

11. It follows that I find a violation of Article 6 para . 1 (art. 6-1).